NOTES OF JULY 11, 2016 RYE BOARD OF SELECTMEN MEETING

Draft Revision B – Provided by the Rye Civic League

 

            Present (clockwise around table):  Town Administrator Michael Magnant, Selectmen Musselman, Jenness and Mills, Town Finance Director Cyndi Gillespie, Town Attorney Michael Donovan (left after SKRJ unmerger case completed).

            Also present and sitting in the audience:  Public Works Director Dennis McCarthy, Police Chief Kevin Walsh.

Persons present from the public included:  Victor Azzi, David Borden (State Representative), Steven Borne, Mae Bradshaw, Jim Breen, Stephen Brown, Sharon Consentino, Deb Crapo, Randy Crapo, Shawn Crapo, Peter Crawford, Corey Colwell, Burt Dibble, Charlie Hoyt, Tim Phoenix, Nancy Stiles (State Senator).

 

Editor’s note:  For ease in finding particular sections using the archived video and audio on the Town website, the elapsed time is indicated.  Use the slider and the elapsed time indicated at the bottom of the video window to fast forward to the desired section.  Videos on the Town website may currently be accessed at www.town.rye.nh.us by clicking on “Town Hall Streaming” at the bottom left of the screen.  Follow the link for “Town Hall Live Streaming,” then find the meeting by date under “Previous.”

The video starts at 6:47:04 p.m. (0:00 elapsed).

 

Summary

 

1.      The Police and Public Works Departments were commended for arranging for removal of the whale from Foss Beach with the cost to be paid by the State.

2.      An unmerger request on Big Rock Rd. was denied after lengthy legal arguments regarding whether a denied variance application could constitute “overt action” by the property owner sufficient to block reversal of the Town’s merger “by operation of law.”  The owner expressed concern that persons resident in Rye for 30 years were attempting to prevent the unmerger and that he was being unfairly treated.

3.      Two members of Rye’s State Legislative delegation were present while a hydrologist on a committee of which they are members, presented evidence that PFCs and PFOAs have been found in wells near the Coakley Landfill and are migrating into the Berry’s Brook watershed.  There was also discussion about 1, 4 Dioxane.  Selectman Musselman questioned some of the methodology and conclusions.

4.      The Selectmen are searching for consensus on how to proceed with Town Hall after a succession of committees.  Several residents provided input and there was apparent agreement that a Charrette was needed.

5.      Sixty residents near Bass Dr. are petitioning for the installation of steps or a ramp over the shale pile near there.

6.      Town Administrator Magnant was designated as the Town representative to a committee on Cancer Clusters called for by Governor Hassan.

 

Non-public session

 

            The motion by Selectman Jenness to seal the minutes of the just-completed non-public session carried unanimously.

 

Announcements:  Whale on Foss Beach (0:59 elapsed)

 

            Selectman Jenness stated that, two weeks earlier, Police Chief Kevin Walsh had left the meeting early to check on the whale at Foss Beach using his flashlight.  The whale was fully beached.  At that point, no one knew what was going to happen.  It looked like the 40 ton whale was on Town Administrator Michael Magnant’s plate.  Over the next three days, he was able to coordinate efforts, including those of the State, Public Works and the Police Department.  Three days is not much time to make a forty pound whale disappear, she said.  Burt Dibble interjected that it was forty tons.  There was vigorous applause. 

            Selectman Musselman stated that the State had responded quickly at the urging of Mr. Magnant.

            Mr. Magnant stated that the gratitude should go to the Police Chief and the DPW Director who were the “boots in the ground.”  He said that he was thankful that the State had stepped up, as otherwise they would still be cutting the whale up into small pieces.

            Selectman Mills thanked State Legislators David Borden and Nancy Stiles, who were in the audience.  He said that everything had turned Tuesday afternoon when the government shifted gears and we found out that we were going to be off the hook.  That was a large expense, he said.

 

Public comments (5:06 elapsed)

 

            Peter Crawford expressed concern regarding the second ambulance.  There is apparently a trade in offer for $9000, he said.  Based on the low value, there is a possible plan to keep the old ambulance along with the new one that has just been ordered.  He stated that he is not sure what the purpose would be.  If the brand new ambulance broke down there would be another one to substitute, however, there is not sufficient staffing to run two ambulances.  If one ambulance is out and another call came in, it would seem as though mutual aid would be faster than bringing in a firefighter and an EMT to handle the second call.  Reading from the warrant article, he noted that it provides $275,000 to replace the existing ambulance, not add a second one.  The voters were not apprised of the possibility of a second ambulance.  Mr. Crawford quoted from RSA 32:10, I(d) and RSA 32:3, V, which restrict funds from being transferred for a purpose not set forth at the time that the money was appropriated.  The purpose does not appear to extend to the acquisition of a second ambulance as opposed to the replacement of the existing ambulance, he said.

            Selectman Mills said that he was on the fence until Mr. Crawford stood up and said don’t buy it.  Now he is going to say yes, he said.

            Mr. Crawford said that he believed that more study was needed.  He questioned whether the ambulance was only worth $9000 and suggested an appraisal. 

            Steven Borne stated that Parsons Field, Lang Field and the Rye Junior High fields are in pretty dire condition.  He asked whether the fire trucks could be used to water the fields before they become unrecoverable.  Selectman Mills stated that this had not been discussed, however he sarcastically indicated that there could be a non-public session on the issue. 

            Sharon Consentino referred to a late event permit application and cycling on Route 1A.  Parking is allowed on both sides.  She wondered about biker safety.  Police Chief Kevin Walsh stated that the application had been presented somewhat earlier, however he places the requests on the agenda closer to the date of the event so that the Selectmen are not considering permits too far in advance, and so that what has been already approved is fresh in everyone’s minds.  The race is on Route 1A and it is a competitive event, with 150 riders, but the start times are staggered throughout the day.  This event has not created a lot of congestion in the past, he said.  He asked that he be informed if there are any problems. 

            Ms. Consentino enumerated a number of safety issues related to Route 1A. 

 

Consent Agenda (13:57 elapsed)

 

            The Consent Agenda item, an Event Permit for the bicycle ride on Saturday, July 16, 2016 for the Cystic Fibrosis Foundation was unanimously approved.

 

Minutes (14:26 elapsed)

 

            The minutes of the June 27, 2016 meeting were unanimously approved with changes.  Selectman Musselman abstained, not having been present at that meeting.

 

Letter of commendation regarding whale on Foss Beach (15:54 elapsed)

 

            Town Administrator Magnant read his letter, which thanked the Police Department and the Department of Public Works for their leadership.

 

Unmerger request SKRJ Realty Trust, Steven Brown Trustee, Big Rock Rd. (18:17 elapsed)

 

            Editor’s note:  What appears below is a long and complicated discussion.  To summarize, this case involves eleven lots that are all part of the Myrica-by-the-Sea subdivision, as indicated in plan 0818 with the Rockingham County Registry of Deeds.  These lots appear on a plan (number 0818) referenced in Registry records at least as early as 1937.  According to the plan, the eleven lots (numbered 34, 35, 36, 37, 38, 39, 42, 43, 44, 46 and 47) are all adjacent, except for intervening streets (now apparently paper streets).  These eleven lots have now apparently been consolidated into three lots on the Rye tax maps:  map 5.2 lots 79 and 80, and map 8.1, lot 45.  The last lot has dashed lines, apparently indicating nine constituent lots.  Current tax map 8.1 lot 45, according to the tax card, consists of a parcel that, was, in 2010, “consolidated into 1 lot of 1.23 ac.” On April 1, 2015, the former owners, the DeGlorias, conveyed the eleven lots to SKRJ Realty Trust, Stephen C Brown, Trustee (see Book 5606, Page 1056 with the Rockingham County Registry of Deeds). 

            In 2011, N.H. Rev. Stat. Ann. (“RSA”) 674:39-aa was enacted, permitting involuntarily merged lots that were merged prior to September 18, 2010, to be unmerged upon owner request, made prior to December 31, 2016, provided that “[n]o owner in the chain of title voluntarily merged his or her lots.”  A “voluntary merger” is defined in the statute as “any overt action or conduct that indicates an owner regarded said lots as merged such as, but not limited to, abandoning a lot line.”  According to representations made during this hearing, and during the prior one before the Board of Selectmen on June 13, 2016, it appears that the prior owner had attempted unsuccessfully to obtain a variance to allow construction of a single dwelling on the eleven lots, and that the prior owner had agreed to merge the lots if the variance was granted.  The question is whether the unsuccessful variance request is sufficient to constitute “overt action” under the statute so as to constitute a voluntary merger.  The owner, through his counsel (Attorney Phoenix) cited the provisions of RSA 674:39-a, which permits owners to merge contiguous lots as a matter of right, unless it creates a violation of then-current ordinances or regulations.  That statute requires that a notice of merger be recorded with the Registry of Deeds and mailed to the municipality’s assessing officials.  He argued that this statute prevents an implicit merger based on an application alone, whether successful or not.

            Selectman Mills started by reading a letter from Town Attorney Michael Donovan.  It states that Planning and Zoning Administrator Kim Reed had reviewed the Zoning Board of Adjustment and Planning Board minutes in the Town Clerk’s office from 2000-2011 and found no applications by the Deglorias after the March 2003 denial of the special exception and variance application.  She also reviewed the minutes that she has retained since becoming Administrator in 2011, the letter said. 

            Mr. Donovan suggested that, since this is a continued  hearing, the Selectmen limit the information to new information or arguments.  He summarized the reasons that the hearing was continued from June 13:

1.      To permit the Selectmen to review the information submitted at the June 13 hearing. 

2.      All of the Town files had not been gathered and submitted to him for review.  These were principally DES-related and dealt with wetlands and drainage issues.

3.      Shawn Crapo had believed that there was another ZBA application after the ones that had been reviewed.

4.      The Selectmen requested additional information from Attorney Phoenix that has now been provided.  This included a copy of the Purchase and Sale agreement and copies of DES-related communications since his client has owned the property. 

Mr. Donovan stated that the Town had gathered DES information that was believed to be relevant.  That was summarized in a June 24 memorandum, a copy of which was provided to Attorney Phoenix and Mrs. Crapo, he said.  Mr. Donovan stated that he also summarized the information provided at the June 13 hearing.  This included a copy of a real estate listing and a tax card.  That indicated that the lots were not merged on the tax map until 2010.  That had been unknown previously.  He stated that they had also gone through the records of the wetlands violations.  These involved the clearing of trees by the DeGlorias to accommodate a single house on the several tax map lots.  There was also a copy of a letter from Mr. DeGloria to the DES.  There were two drainage plans that dealt with one lot and a single driveway that was proposed in 2009.  The application for variance by Mr. DeGloria was found and attached.  It involved a request to construct a single family home of approximately 2400 sq. ft. on the 11 lots which would become one lot. 

 

(23:46 elapsed)

            Attorney Tim Phoenix of Hoefle, Phoenix, Gormley and Roberts in Portsmouth stated that he is representing the property owner, Stephen Brown, who is behind him. Corey Colwell with MSC is also present.  He had done the recent survey and wetland work and was also involved years ago when the DeGlorias were involved, Mr. Phoenix said.  For the record, Mr. Phoenix stated that he had submitted, by July 6, as requested, a memorandum which outlines the factual and legal histories and his legal analysis as to why these lots have not been merged.  The discussion at the prior hearing had been all over the place. 

            Mr. Phoenix referred to information from MSC Engineers that is in addition to that summarized by Attorney Donovan.  This consisted of their correspondence with DES leading to the conclusion that no further action would be necessary regarding the wetlands.  While the wetlands and the concerns of the neighbors are legitimate issues, these are not relevant to whether or not anyone’s conduct caused a merger, he asserted.  Mr. Phoenix stated that he had come in and looked at the additional files which were not in the Building and Planning Department.  He obtained these from Attorney Donovan’s office and does not know how they were gathered, he said.  He went through every single page.  He stated that he had found many references to there being eleven lots.  He referred to a number of letters and memoranda, including one from Attorney Donovan dating from the 1980s and 1990s, where these lots are referred to as eleven lots.  The DeGloria rehearing request specifically refers to eleven lots, he said.

 

(27:03 elapsed)

            Attorney Phoenix provided a history of the merger/unmerger statute.  Section 601.1 of the Rye Zoning Ordinance was passed in the 1960s.  In 2011 a new unmerger statute was passed.  Until 2012 when the Ordinance was repealed, all substandard lots under common ownership were deemed merged by operation of law.  That is important to consider when they are referred to later as having been merged.  In 1995, 674:39-a was passed, which allowed voluntary merger, dovetailing with the Town’s ordinance at the time.  In 2010, 674:39-a was amended to prohibit further merger without the agreement of the property owner.  That statute did not deal with previously-merged lots, so 674:39-aa was passed which permits property owners to unmerge their lots, he said. 

            Attorney Phoenix asserted that the Board is required to grant the request as long as it can be proven that there was no merger.  There are two ways that this could occur.  There could be an application to merge, but that is not enough.  The statute refers to an application, Planning Board approval and recording with the Registry of Deeds all being required.  Editor’s note:  See RSA 674:39-a.  That is not what happened here, but it is important because there are applications for variances in this case.  The second way that lots may be merged, the one applicable here, is “by any overt action or conduct that indicates an owner regarded said lots as merged, such as, but not limited to, abandoning a lot line,” he said.  

            Continuing, Attorney Phoenix said that the questions are, what has happened over the years, what constitutes “overt action or conduct” and what is the meaning of “regarded said lots as merged.”  A hint is given in the reference to “such as, but not limited to, abandoning a lot line.”  That is important because some action must be taken to do that, he said. 

            Attorney Phoenix stated that, of the eleven lots, two are presently taxed separately.  The other nine were merged for tax purposes in 2010.  Before that, they were all taxed separately.  The land was conveyed from DeGloria to Brown, with each lot being separately identified.  From 1937, when Louise Brown (no relation) began deeding out these lots, every single deed that he found, referenced each lot separately, he asserted.  In the 1970s there was an application for a variance to combine two of the lots.   The application was granted but nothing was ever done.  Fifteen years later there was an application to put ten houses on the eleven lots.  Nothing has ever been built on this property.  Attorney Phoenix stated that he could not find any building permits applied for or granted on the property. 

Attorney Phoenix stated that, in 2000, there was an application to consolidate all of the lots into one building lot.  That seems to be where all of the focus is.  He read from Attorney Donovan’s June 2 letter, “if the variance is granted, they would convey all eleven lots under one ownership and withdraw the suit.”  He also read another quote, “they are prepared to stipulate, upon granting of the variance the lot will be in single ownership.”  A decision on that variance request was never made.  It was withdrawn or continued and never followed up on.  The emphasis from the comments is that they “will” consider the lots merged, not that they already have.  They were going to regard them as merged if they got the relief that they needed, obtained a building permit and built on the lot, he asserted.

Attorney Phoenix stated that the DeGloria family had the lots checker boarded at one time, with separate family groups holding a few lots.  Editor’s note:  The term “checker boarding” apparently refers to the various lots being held by two or more separate owners in such a fashion that there would be no adjacent lots under common ownership that would allow the Town to merge them “by operation of law.”  See Registry deeds book 3677, pages 1471, 1472 and 1473, placing the eleven lots under common ownership and removing the “checker boarding.”  They were all deeded to the parents in two separate deeds with all of the lots listed separately, Attorney Phoenix said.  The DeGlorias applied for a variance to place one house on the lot.  He read from Attorney Donovan’s letter which referred to building on the eleven lots which would then become one lot, although that had not yet occurred.  The variance was denied.  The rehearing request specifically identifies the lots as separate.  It never went anywhere until the lots were sold to Steve Brown through his trust.  Editor’s note:  See Registry deed, book 5606, page 1056, recorded April 1, 2015.

Attorney Donovan balanced these facts against what some might regard as evidence that the lots have been merged.  There is a real estate listing agreement which refers to three parcels, however it references the deeds which in turn refer to each of the eleven lots.  There is the variance application and the tax card.  There is a letter from DeGlorias expert relating to a wetland violation.  There is a drainage report by MSC.  Both of those refer to construction of a house on “the lot.”  There is a letter from DeGloria from April 2002 which refers to himself as the owner of a parcel of land. These are not enough compared to 80 or 90 years of history showing no such intention, Attorney Phoenix argued.

 

(36:26 elapsed)

Attorney Phoenix then turned to the legal analysis.  He stated that RSA 674:39-aa, II(b) places the burden of proof on the municipality.  The municipality must demonstrate by a preponderance of evidence that the owner regarded the lots as in fact merged.  The only evidence is mostly offhand, third person statements, not even by owners, except for one occasion.  There are ZBA applications with no action, he said.  

Attorney Phoenix stated that there are two New Hampshire cases so far on unmerger.  The first is Roberts v. Windham, he said.  Editor’s note:  That case appears at 165 N.H. 186 (2013).  There was an application to unmerge seven lots.  The application to unmerge three of the lots with nothing on them was granted.  The request with respect to the other three was denied as there was a reference to one tract on a deed and structures consisting of a home, seasonal cottages, a garage and a dock with building across boundary lines.  One driveway provided access.  The Supreme Court overturned the Superior Court with respect to the reference of a single tract evidencing merger.  It also stated that acquiescence to taxation does not, standing alone, does not constitute voluntary merger.  However, the Supreme Court determined that the owner regarded the lots as merged by considering the physical characteristics of the lot, considering the use of the subject property in its entirety.  Those not built on were OK.  Those with buildings on them were deemed merged, he said.

Attorney Phoenix stated that the second case, Newbury v. Landrigan, involved an owner that had recorded plans, he said.  Editor’s note:  That case appears at 165 N.H. 236 (2013).  An attempt to transfer the lots separately without subdivision approval was made.  The Superior Court, which was upheld by the Supreme Court, held that it been merged and treated as a single lot for 50 years or more.  The deeds did not support the position that there were separate parcels.  Plans had been recorded at the Registry showing the lots as a single parcel, one lot.  There were building permit applications identifying a single lot that were presumably granted as there was building on the lot.  The Landrigans testified that they knew and understood that they were buying a single lot.  That is not the case here, he said. 

Attorney Phoenix stated that a third case, Robillard v. Town of Hudson, was decided prior to the unmerger statute.  Editor’s note:  That case appears at 120 N.H. 477 (1980).  There, someone had two lots supporting two single family homes but not a duplex on either of them.  The owner sought permission to build a duplex by combining the lots, which was granted.  The house was built on one of the lots.  A subsequent owner sought to unmerge the lots as one of the lots had not been built on.  There, the court determined that applying for and getting permission to build, and then building, constituted treating the lots as one.  That is not the case here.

Looking at all of the circumstances there has been no merger, he asserted.

Attorney Phoenix stated that this Board of Selectmen has addressed five or six unmerger requests.  There were two circumstances that were comparable to the present one.  The first is the Shayna (sp?) request that was granted even though there was a temporary garage on the other lot that they wanted to unmerge.  The Garceau case is more illustrative as the house was on one lot, while there was a pier and dock on the other lot that serviced the house on the other lot.  Both applications were granted by the Board even though there was activity on the other lot.

Here, Attorney Phoenix stated that the overt action consisted of referring to the property as a “parcel.”  Attorney Phoenix referred to the definitions of “parcel” and “lot” and argued that referring to a “parcel” does not mean that it is not eleven lots.  He then referred to the definition of “overt,” and “conduct.”  The so-called overt actions outweigh the mostly casual references.  Three of the five relate to Mr. DeGloria trying to get the lots merged, he said.

Attorney Phoenix closed by stating that Mr. Brown is mindful of the concerns of the neighbors regarding water.  When a lot is developed it must be demonstrated that the water situation, post-construction, will not exceed the pre-construction situation.  There is a lot more to be done with respect to this lot.  Other hearings must take place where everyone’s concerns will be vetted, he said.

 

(48:37 elapsed)

 Sharon Consentino stated that she and her husband own the piece of land with the most access to the lots in question.  From 1935 until very recently this was deemed an unbuildable lot.  The three or four Supreme Court decisions relate to buildable lots.  The Conservation Committee (sic) did not purchase this land because it was deemed unbuildable.  From 1935 through today, nothing has changed to make this a buildable lot. 

Selectman Mills stated that the lots had been advertised in 1993 as eleven lots.  The owner was contacted regarding the buildability of the lots and the ad was pulled.  That land was always regarded as unbuildable until Assessor David Hynes came in and changed it to “possibly buildable.”  He is no longer with us, Selectman Mills said. 

Attorney Phoenix referred to the Garceau application.  He stated that Attorney Donovan had expressed a view that it was unbuildable due to tidal influence.  Buildability is not the issue.  That is a separate determination which is not relevant to whether lots may be unmerged.  Secondly, the Assessor makes a determination for tax purposes.  Buildability is a Building Inspector and Zoning Board decision and a Planning Board decision, where applicable.  In addition, at one point the wetland area on the lot was much larger.  Whether it was due to Mr. DeGloria’s activities or not, it did not occur after Mr. Brown bought the lot.  The statute is clear as to the basis for the Board of Selectmen to grant or deny the application.  Whether the lot is buildable or unbuildable is not the test, he said.

Robert Consentino, Sharon’s husband, objected to a comment that the wetland is smaller than it was.  He showed a photograph showing the wetland extending into the adjacent Philbrick lot.  It may appear that it is not particularly wet due to the dry year, he asserted. 

Attorney Phoenix stated that the wetland determination had not been made by a certified wetland scientist and approved by the DES.

Mrs. Consentino stated that the MLS listing stated that the property was not buildable and that the buyer would have to do “due diligence” to change that.  If someone with the Town has determined that it is “possibly buildable,” someone from the Town can come out to the land, do further studies, and reverse the position.

Selectman Mills stated that he does not believe that will happen as the person had sat where Attorney Phoenix is sitting and, when asked who had given him the right to make the change, pointed to himself and said “I did.”  He is not employed here anymore, Selectman Mills said.

Attorney Phoenix stated that the MLS listing nowhere says that the property is unbuildable.  Mr. Hynes went all over town changing the buildability of lots.  The effect was to increase values and tax revenues, he said. 

Mrs. Consentino stated that Attorney Phoenix would not be doing all of this work unless they had the intention of making the property buildable. 

 

(56:36 elapsed)

            Shawn Crapo, stated that his mother was ill and had to leave.  He passed out copies of information from the three file boxes.  Editor’s note:  During the June 13 hearing, there was discussion about three file boxes of Town records relating to the property.  The Supreme Court cases involved properties with structures on them, Mr. Crapo said.  Case law has to be applicable, he argued.  Should the unmerger go, I guess we’re going to go to the Supreme Court and argue over the meaning of the term “overt action,” he said.  Both sets of plans have clear indications on them of lot lines to be removed.  The 62,000 sq. ft. referred to is arrived at by combining all of the lots.  He argued that “an attempt to glean the benefits of this being one lot, whether it be successful or not, constitutes an overt act.”  There could be 4000 references to separate lots, but all it takes is one instance where a judge could find that it constituted an overt act, he said. 

            Mr. Crapo stated that he was around when it was eleven lots and owned by the Margolskees.  Thompson Court ran through it at that point, he said. 

            Mr. Crapo agreed that he had thought that the 2003 application had been later than he had thought.

            He further stated that Mr. DeGloria had accepted half of Thompson Court, which removes access to the eleven lots and landlocks them.  Since a single house on this lot was denied, a new application must be materially different under Fisher v. Dover.  Editor’s note:  This case appears at 120 N.H. 187 (1980).  An unmerger could create that.  There is a 1988 letter in the file from Building Inspector Bill Jenness stating that he had witnessed test pits and that the land is unbuildable, he said. 

            Mr. Crapo asserted that, once he passes the bar, this will be one of the first cases that he will argue before the Supreme Court.  We will go up and argue what “overt act” means, he said.

            Robert Consentino confirmed that there are the owners of the eastern portion of Thompson Court.  Each owner was given ownership of half of the road, he said.

            Attorney Phoenix stated that everything was supposed to be submitted by the sixth, so he is disappointed by the late submission by Mr. Crapo.  Mr. Crapo’s statements support his point, he said, as he refers to lot lines to be removed.  This was a failed effort.   Fisher v. Dover is inapposite, he said.   He reiterated the standard.  It is not one effort, he said. 

            Selectman Mills asked Corey Colwell how many people had tried to develop the land.  Mr. Colwell stated that he had worked for three owners:  Whitney Sadla (sp?), Mr. DeGloria and Mr. Brown.  In each circumstance they found the lot buildable.  He held up a chart showing the wetland and the buffers. 

            Selectman Mills asked about D.D. Cook.  Mr. Colwell stated that he had not worked for Mr. Cook on this property.  At Selectman Mills prompting, Mr. Colwell confirmed that Mr. Cook had been one of the possible developers and had walked away from the property. 

            Attorney Phoenix stated that, if there is not some action such as building on the lot or recording a plan, it is virtually impossible for someone down the chain of title to know what someone did and what they are stuck with or not stuck with.

            Mr. Crapo stated that Mr. Brown is a land use attorney and had access to the box and a half of information.  The statute does not say that the act need be successful, only that it be overt, he said.  The drainage plans required the use of all of the land as Thompson Court was no longer there and access from Powers Ave. was not available.

            Stephen Brown stated that he is the owner and that he is a civil and criminal litigator, not a land use attorney.  He has no idea what is going on here, he asserted.  He stated that he had done as much due diligence as he could.  There seems to be a frenetic paranoia about developing the land and water.  It’s not fair to me when I do my due diligence and the Building Inspector says that it is probably buildable and the Assessor says that it is probably buildable, he said.  There needs to be consistency in how residents are treated.  You folks have lived here for thirty years and have known the Crapos for thirty years.  I get a little uncomfortable as to how things work, he said.  He said that he has reached out to the neighbors.  It has nothing to do with wetlands.  It is what it is today, he said.  He asked that the property be unmerged.

            Mrs. Consentino stated that they have lived here for five years.  The property in question is extremely wet and there are a lot of problems with the land.  The MLS listing refers to the need for due diligence, she said. 

 

(73:26 elapsed)

            Mr. Crapo said that Mr. Hynes had gotten “in his mother’s face” with regard to this lot.  Mr. Crapo asserted that Mr. Hynes had said that “if anybody could build on it, his friend who just bought it, who is a land use attorney, would be the one.”  You can check your minutes, he said. 

            Jim Breen, 42 Cable Rd., asked Mr. Colwell whether all of the lots didn’t need to be together, for drainage and wetlands mitigation. 

            Selectman Mills asserted that they were trying to go back to before Zoning was in effect. 

            Mr. Colwell stated that more than one house could be built on the lot.  He showed his chart and referred to the small wetland.  Several houses could be put there as long as the setbacks are applied.  There is 89 feet of frontage on Big Rock Rd.  Randy Crapo interjected that that was insufficient.  Mr. Colwell replied that subdivision would be necessary.  Someone said that a variance would be necessary.  Mr. Colwell agreed. 

            Ms. Consentino asked whether they would go back to 1993 and many buildable lots. 

            Attorney Phoenix stated that there were eleven lots when the subdivision was done back in the 1920s.  Most of the lots in the Myrica subdivision were 5000 sq. ft.  Some of the roads were built, others were not.  They are asking that the eleven lots be restored.  Then they would be before the various boards with a plan for one or more lots, which remains to be determined.  All of these other factors are not relevant to the unmerger question. 

            Robert Consentino asked how many houses they would like to build.  Attorney Phoenix responded that they would like to build as many as could reasonably be put there. 

            Shawn Crapo asked Attorney Donovan whether back lots would be created, contrary to the subdivision regulation, due to the absence of Thompson Court.  Attorney Donovan said that he did not have the answer to that now.  There was discussion about the current grouping of the lots for tax purposes that arose out of how the checker boarding occurred.

            Attorney Phoenix agreed that back lots apparently would be created, but that is a question for another day.  The statute allows the owner to go back to before the merger by operation of law.  Shawn Crapo is arguing that the lots be deemed merged by virtue of an attempt to do so.  That is not right and that is not fair, he said.

            Selectman Mills asked whether there needed to be a sign in sheet as a continuation of a public hearing.  Attorney Donovan said that it was a continuation of a public hearing and asked whether there was a procedure that required a sign in.  There was no sign in on June 13 either, he said.  It is clearly a public hearing, he said. 

            Attorney Donovan suggested that the public hearing be closed.

            The motion to close the hearing carried.

            Selectman Mills stated that they would converse regarding whether some of the new material that Shawn Crapo had brought in was allowable.

            Selectman Musselman said that they were ready for a motion.  Selectman Jenness agreed.  Attorney Donovan stated that, if the Board felt that it had the information that it needed, a motion could be made.

 

(83:06 elapsed)

            Selectman Musselman moved to deny the application, for the following reasons:

1.      In 2001 the prior owners, the DeGlorias, applied to construct one single family home on the lot.

2.      After that, the DeGlorias applied for a special exception to build a driveway to the single house.

3.      In 2001, the DeGlorias cut most of the trees on the land to accommodate the construction of a single house.

4.      In 2001, they retained an engineer to prepare a drainage study to build one house on the lot and a driveway on the land.

5.      Even though the ZBA applications were denied, these are overt actions by the DeGlorias that indicate that they regard the nine lots as merged.

He further moved that the Town Counsel prepare a notice of decision to be approved at the July 25 meeting. 

            Selectman Jenness seconded.  All were in favor.

            Following this, a large number of persons left, including Attorney Donovan.

 

Berry’s Brook water testing (85:56 elapsed)

 

            Mindi Messmer came up to sit at the front table. 

            State Representative David Borden stated that a number of things had happened since they last met.  The Governor has appointed a task force on the Seacoast Cancer Cluster investigation.  Tom Sherman, Nancy Stiles, he and Mindi Messmer are on the task force.  At the last meeting, there was a discussion about PFCs, a term which encompasses a number of chemical compounds.  At that time, they had not been found in the Coakley landfill, but last week they were.  That does not necessarily connect the Coakley Landfill with the Cancer Cluster, so there is still a lot of research to be done.  Although he is not necessarily speaking for all of them, from the beginning they have had concern about the Berry’s Brook Watershed because it cuts across Rye from the Coakley landfill across to the sea.  Ms. Messmer is a hydrologist and is on the task force because of that expertise, Mr. Borden said. 

            Ms. Messmer stated that PFCs had been detected in some of the wells around Coakley Landfill.  The presence of other compounds had been previously known, including iron, magnesium (sic), as well as 1,4-Dioxane which has been identified in the past few years as a possible known carcinogen.  Editor’s note:  The reference to magnesium should possibly be to manganese, which has previously been associated with the Coakley Landfill.

            Ms. Messmer referred to a map which was projected on the back wall.  The water flows from the landfill towards Berry’s Brook, Ms. Messmer said.  Some of the water flows towards North Hampton and some towards Berry’s Brook.  She referred to an area enclosed by an orange line on the map from a 2015 report.  The line showing areas exceeding the State limit bending and flowing around the Berry’s Brook area, she said.  It looks like it is discharging into the Brook, she said.  Berry’s Brook has not yet been sampled in Rye, she said.  She showed another diagram showing the flow in the bedrock.  There are some fractures that are being pumped on either side that is causing the contamination to flow. 

            Selectman Musselman disputed the location of a well that, he said, was not located at the position indicated on the map.  Ms. Messmer said that she was not trying to mislead anyone, and that there 1,4-Dioxane was found in the well in 2013.  Selectman Musselman stated that the level was zero more recently.  Editor’s note:  Selectman Musselman’s firm is involved in the testing of certain wells associated with the Breakfast Hill Landfill, located in Rye, which is not far from the Coakley Landfill (which is not in Rye).  His firm does this for the Town of Rye at no charge.  There was discussion between Selectman Musselman and Ms. Messmer regarding the accuracy of the information and the implications suggested by Ms. Messmer.

            In response to a question from Selectman Musselman, Ms. Messmer stated that PFOAs and PFCs have been detected in all of the wells sampled, but the results have not yet been released publicly.  She indicated that the parts per trillion is not known, but Mr. Borden stated that it is around 70 ppt, which is now the EPA norm.

            State Senator Nancy Stiles said that Berry’s Brook has been a concern and that they hope to have research done.  Information on “your website” indicates that there should not have been building in this area.  Editor’s note:  It is unclear what Senator Stiles is referring to.  There is a section of the Town website addressing the Parsons Creek Watershed and bacterial contamination in that area, which is a separate issue.  She said that she had mentioned it to Joe.  There have been some moisture issues in some of the areas.  It falls down behind the Senior Building.  Editor’s note:  This is an apparent reference to the White Birch housing units near the Rye Airfield off of Lafayette Rd.  Mr. Borden added that these are right in the watershed.  There are all kinds of moisture and mold issues, she said.  David, Tom and she had been meeting with them, and the issue extends back to the time of Representative Murphy.

            Selectman Musselman said that, if there is an issue, it seems to all be coming from the same source at Pease and their use of chemicals in some fashion.  He asked whether, if there is an impact on Berry’s Brook, there aren’t also impacts on Hodgson’s Brook and Peverly Brook as well.  The problem with sampling Berry’s Brook is that they have no idea of the background level.  There are sources other than the runway chemicals, including deposition from the atmosphere.  There should be other samples in the region so that Berry’s Brook can be compared with the others. 

            Senator Stiles said that that was a very good point, and the reason for the concern with Berry’s Brook was the cancer clusters in Rye. 

            Ms. Messmer said that there is also the 1,4-Dioxane to consider.

            Mr. Borden said that he had been going to the meetings related to Pease as well.   The blood of about 9000 people, everyone who has ever worked at Pease, has been tested. 

            Ms. Stiles stated that this is the beginning of the process. 

            Mr. Borden said that they would keep bringing this up. 

            Selectman Musselman expressed surprise that Mr. Borden was not running for Representative, saying that he thought that he should run for Senate. 

            Steven Borne asked for a copy of the slides, which Mr. Magnant handed to him.

 

Town Hall discussion (105:11 elapsed)

 

            Selectman Mills asked who had put this on the agenda.  Mr. Magnant responded.

Selectman Mills asked Selectman Musselman if he had anything to say.  When he objected to going first, Selectman Jenness started.

            She said that she does not have an answer.  We know that we are polarized as a Town.  Committee after committee after committee has been tried.  Perhaps they need to go back to the UNH Survey and mine it for areas with more than 60 percent agreement as a basis.  There was agreement on certain things.  There was agreement that Town Hall should remain in the center.  A high percentage believed that Town Hall should be on this site, although not necessarily on this foundation or footprint.  Without sixty percent we’re going nowhere and the building is falling down around us, she said. 

            Selectman Musselman said that they have learned that people clearly do not want to spend $4 million or $4.5 million.  They want to spend somewhere in the $2 million to $2.5 million range, perhaps.  What that will buy has not really been investigated.  A shiny new facility with a completely renovated existing building would cost too much.  A close look at the space needs to be taken and matched to what can be afforded.  It is clear that the building needs to be on this parcel.  In order to guard the majority, some of the historic aspects, but not necessarily all of them, need to be retained.  At the last Town Meeting where people were given all of the choices, people rejected that completely.  Something needs to be proposed back to the voters that is concrete and makes sense.  There is this huge debate about tearing the building down and rebuilding it versus restoring it.  There is a meeting in the middle of that.  If the building is restored quite a bit is replaced anyway, as we have rotting everything, he said. 

            Selectman Musselman asked how many families of birds lived in the building.  Mr. Magnant responded that there were three, but now there are two. 

            Almost all of the clapboards were going to be replaced from the “get go,” Selectman Musselman said.  A hard look needs to be taken at the distinctive features and how they can be dealt with.  A compromise looking at “this” or “this” plus something satellited, perhaps the Old Police Station, needs to be structured so that we can afford it and can reasonably provide for our needs.  It would not be a marvelous facility for $2 million or $2.5 million.  We can’t let this paint peel and the building fall apart, he said. 

 

(112:00 elapsed)

            Shawn Crapo referred to the Kensington Town Hall, which went through a similar process as Rye.  Wolfeboro had also been mentioned.  The initial Kensington attempts failed but there was some out of the box fundraising and public/private partnerships.  That might be part of the answer here.  He stated that the building looks similar to this one, is historic and is built into a hill.

            Burt Dibble said that there was discussion a year ago to assemble a group including the architect, the preservation society and Mike Magnant to have a discussion about less expensive ways to approach the problem.  The Board decided not to involve Mr. Magnant.  While free information is being collected, that might be an alternative route.  The architectural study that we spent a lot of money on should be milked for additional information.  Noting that the building is a State Historic Landmark, he suggested that the Board consider painting the building before it suffers further decay over the winter. 

            Mae Bradshaw provided an update on what the Heritage Commission had been working on.  Editor’s note:  Ms. Bradshaw is former Chairman of that Commission and currently a member.  The Selectmen had given permission to look into fixing up the cupola.  The original grant for the engineering study was declined as the cost of that was too great.  They have asked that two engineering firms that they deal with be approached.  They would do the work for less, they thought.  The very much wanted to provide the money, but it was too much.  She asked for permission to pursue that. 

            With regard to the Town Hall, that should be part of a study of all of the buildings in the center of Rye.  She suggested a Charrette,  done by a Portsmouth group for no charge.  The buildings include the Parsonage, the Old Trolley Barn and the Town Hall.  Editor’s note:  The Trolley Barn is another name for the Old Police Station.  Input from the community is needed from the ground up. 

            Charles Hoyt said that he sits on the Parsonage Committee.  The hiring of a firm to do a Charrette has come up and all felt that it was a good idea. 

 

(118:14 elapsed)

            Victor Azzi said that he would like to reinforce some of what he had heard.  There have been many unsuccessful attempts.  There are a number of essential elements that most people would like to be retained in the Rye Town Center.  One is this building, in one form or another.  The Parsonage is another subject of ongoing study, but there are a number of others to be considered or addressed.  Plan New Hampshire is made up of a number of people.  As professionals, they make their expertise available free of charge to do planning studies in a focused, concentrated fashion, involving the townspeople.  They are planning level studies, not architectural details, Mr. Azzi started to say.  At this point, Selectman Mills started to cut him off.  Mr. Azzi was able to add a few sentences, but then Selectman Mills called on the next person.

 

(120:42 elapsed)

            Deb Crapo said that the Town of Stratham had gotten $5 million to make the center of Stratham into a more town-like atmosphere.  She agreed to provide the information.  Some of the towns do not use all of their grant money and these funds can be accessed, she said.

            Selectman Musselman said that he had received a letter asking if he would like to buy Stratham’s old building that they bought with the intention of it being their Town Hall, but then decided against it.

            Charlie Hoyt said that Newmarket had done something similar.  There were several grants.  The Town of Rye can obtain grants, he asserted.

 

(122:56 elapsed)        

            As Peter Crawford got up to speak, Selectman Mills stated that his time would be limited.  Mr. Crawford said that he agreed with some of what had been said.  The 2011-2016 election results should be looked at.  Town Hall was on the ballot each year, but 2013 was the only year where it got more than 60 percent.  Some years it got over 50 percent, which was sufficient to fund whatever architectural or other study was being advanced.  Editor’s note:  A simple majority is normally sufficient to appropriate money, unless a bond issue is being authorized, in which case 60 percent approval is necessary.  At that time, the estimate was $2.1 million and 10,500 sq. ft., he said.  That and the UNH study last year need to be looked at.  That study was pretty clear that teardown would not be supported and the level of expenditure that is supported is about $2 million.  The amount of space needs to be cut back.  There is not support for the area upstairs, which reduces the 10,500 sq. ft. significantly.  Editor’s note:  He was referring to the Great Hall or Meeting Room, which is currently being used for offices.  That was to be returned to its prior state as an open area for meetings under the plan rejected by voters in 2015.  The room downstairs at the Public Safety Building could be used for some meetings, Mr. Crawford said.  The pencil needs to be sharpened and a way figured out how to do this for a lot less money and saving this building.  The support in town for tearing down this building is only 20-30 percent.  Mae Bradshaw interjected that it was 22 percent.  Even saving pieces of this building and integrating them into a new building is a non-starter, Mr. Crawford said.  A lot of people with a lot of expertise came up with $2.1 million back in 2013.  The structure wasn’t quite as they thought, but somehow the price increased to $4.5 million.  A lot of that was increased space, increased frills like a geothermal heating system, and bigger meeting areas.  Those could certainly be taken out, he argued.

            Selectman Mills asked what the geothermal system cost was.  Mr. Magnant said that he would need to look into that.  Selectman Musselman said that there is already a geothermal system.  Selectman Musselman and Mr. Magnant said that that system cost the Town $20,000.  Selectman Mills asked whether that was a frill.

            Mr. Crawford responded that the numbers were wrong.  The geothermal system that was part of the $4.1 million included expansion…  Selectman Mills interrupted and asked how the system had been paid for if that did not pass.  Editor’s note:  Mr. Crawford was referring to the $4.1 million warrant article that was defeated in 2015, which would have renovated the Town Hall and paid for a new, connected building on the same site.  The plan called for two large additional geothermal wells to be drilled, and additional equipment.

            Mr. Crawford said that Selectman Mills was mixing two things.  There was never a warrant article for the geothermal system.  Back in 2012, the Town decided to go ahead with that system.  Most of the cost was paid for with federal grants.  The $20,000 was the Town portion.   That program is long gone.  We have a geothermal system for this building, but if a second building is to be built, that needs heating and cooling, he said.  Selectman Mills said that he had been informed that the geothermal could be hooked up and extended.  Mr. Crawford said that that would depend on the size and how good the insulation is.  Selectman Musselman said that both Mr. Crawford and Selectman Mills are correct. 

           

(127:26 elapsed)

Selectman Mills then cut Mr. Crawford off and asked for other comments.

Selectman Musselman asked whether there was a consensus.  There was laughter.

Burt Dibble said that, among the speakers, there was a consensus to have a Charrette.  Selectman Jenness agreed.

 

Ramp/steps east of Ocean Blvd. near Bass drive (128:31 elapsed)

 

            Mr. Magnant stated that the benches were hard and suggested that Mr. Hoyt’s letter be addressed prior to the Eversource tree trimming.

            Mr. Hoyt stated that he had spoken to Dennis McCarthy, who had suggested a petition.  He had drafted such a petition by residents near Shoals View, Bass and Cole Noyes.  Recent work by the State has made access difficult and dangerous.  A ramp/stairs similar to that near Ray’s Restaurant is needed.   About 60 signatures were gathered of full-time and part-time residents.  It is State-owned property but is in Rye and services the residents and those that vacation there. 

            Selectman Mills said that the residents want everything this year, including paving of the roads.  Editor’s note:  There was a site walk on Shoals View Drive on June 7, 2016 to address the issue of paving that street.  Public Works Director Dennis McCarthy stated that Bass Dr. is one of the roads that is currently gravel.  All five roads will be priced, because if one is paved they will hear from residents on the other streets. 

            Mr. Hoyt said that the proposed ramp/steps would service the citizens that live there.  Selectman Mills interrupted and asked whether that would include the Hoyts Cabins.  Mr. Hoyt confirmed, but said that it was not his business.  

            There was discussion about the instability of the boulders and the difficulty of crossing. 

            Mrs. Toumpas, 10 Bass Dr., referred to in two storms in 17 years that had made a mess.  If the storm is big enough and they lose power and there’s no phone or cell phone service they can’t call Public Works to have them come and plow it out.  Selectman Mills said that they don’t have cell phones because “you people” wouldn’t let us come and put up a cell tower.  Mrs. Toumpas disagreed, saying they could put a fake tree tower in her yard. 

            Nick Toumpas, 10 Bass Dr., said that, after repeated storms, the bigger rocks move and the water will come through.  Some of the large boulders are unstable.  People can get to the top and cannot get down. 

            Mr. Hoyt read from Chapter One of the Master Plan, which refers to unencumbered access by all citizens to all Town beaches and Rye Harbor. 

            Selectman Mills asked Public Works Director Dennis McCarthy to get ahold of Division Six and arrange a site walk.  Editor’s note:  This is an apparent reference to Division Six of the State Department of Transportation.

            Ann Hoyt said that she owned Hoyts Lodges and that Charlie Hoyt is her brother in law.  She said that she had been trying to get a figure for the annual cost of placing the shale and rock, she said.

            Selectman Mills said that the State is doing this to protect “their” road.  Selectman Musselman added “and your houses.”  Selectman Mills said that a lot of the State funds had been used for removal of the whale.

            There was further discussion about the problem and possible configurations of a solution. 

            Charlie Hoyt said that he had a front row seat during storms.

            Selectman Mills stated that he used to deliver Mr. Hoyt’s mail prior to 1978.  He referred to a guy with a white Volkswagen and a white hat sitting on the wall.  Mr. Hoyt asked whether that was Selectman Mills.  Selectman Mills said no.  There was vigorous laughter.   

            Mr. Magnant agreed that he would set up a site walk.  Randy Crapo said that it was too bad they couldn’t move to Jenness Beach.  Then he could help put a walkway in.  Editor’s note:  Mr. Crapo is one of the Jenness Beach Village District Commissioners.  There was more laughter.

 

Eversource tree trimming (153:26 elapsed)

 

            Mr. Magnant reported that Public Works Director Dennis McCarthy and Selectmen’s Assistant Janice Ireland had gotten together and dusted off a letter that had been sent out in 2008.  That letter informing residents that they have a right to refuse Eversource’s requests was sent to residents.  He is still working with the Town Attorney on drafting something to mandate that they make that information available to homeowners.

 

Second ambulance (154:06 elapsed)

 

            With regard to this agenda item, Mr. Magnant requested that the issue be postponed until the Fire Chief is back.  He is on vacation, he said.  Selectman Musselman said that they have a lot of questions before they proceed with a second ambulance. 

 

$2000 contribution to Seacoast Stormwater Coalition (154:36 elapsed)

 

Public Works Director Dennis McCarthy addressed.  He referred to a MS4 urban storm water permit.  The comment period is closed, but he does not expect a huge effect on Rye.  The Town is doing many of the required things, such as marking the basins and recording them on a computer.  The group is asking for $2000 from each community.  There are ten towns so the budget is $20,000.  There was discussion on how the Town would get out of the Coalition if the Town decides to do so, and the level of formality of the arrangement.

 

FEMA High Water Mark Initiative (168:04 elapsed)

 

            Town Administrator Michael Magnant referred to a FEMA grant and the fact that 90 percent of the people in the flood insurance program do not believe that flooding can happen to them.  The program involves the posting of signs indicating the level to which the water could rise.  The only cost to the Town would be $3500 in in kind work by Planning Administrator Kim Reed.  He said that he needs the Selectmen’s permission to file the grant application.  The motion of Selectman Musselman to do so carried unanimously.

 

Town policies (dress code and children in workplace) (170:51 elapsed)

 

            Mr. Magnant stated that there are two policies involved.  Town Finance Director Cyndi Gillespie is looking to soften the dress code policy.  Ms. Gillespie stated that some of the ladies believe that the existing policy is old fashioned.   A second policy would prohibit children in the workplace unless the Town Administrator permits.  The motion of Selectman Mills to adopt the second policy carried unanimously.

 

Governor Hassan letter regarding Cancer Clusters (172:52 elapsed)

 

            Mr. Magnant stated that he had attended the first meeting on behalf of the Selectmen.  The question was who would be designated to sit.  There was mention of meetings regarding Fire Department consolidation with North Hampton.  It was agreed that Mr. Magnant would be designated to attend the Cancer Clusters meeting.  Selectman Musselman stated that he had heard Mr. Magnant speak a lot at his daughter’s wedding and that the Selectmen do not get him to speak enough.  Editor’s note:  Mr. Magnant is the cousin of Selectman Musselman’s wife, which possibly explains his presence at the wedding.  Selectman Musselman said that, if he would shut up at the Deliberative Session, Mr. Magnant would speak a lot more.  He said that they ought to endeavor to do that, and chuckled.

 

Jenness Beach lighting project, Aquarion meeting and beach parking (176:00 elapsed)

 

            Randy Crapo announced that he had two pieces of information.  First, about 400 post cards had been sent out regarding the lighting.  Certain poles have been designated where the lights could be turned off.  Comments are being accepted until September.  The contractor will not be doing anything until the Fall.  Also, they would be meeting with Aquarion regarding the well at Central and Cable Roads.  There have been complaints about the taste of the water, he said. 

            Mr. Crapo also stated that there may be a petition trying to get more parking spaces assigned to those with stickers.  He suggested that those advancing such a position be told that the State requires access.

 

Adjournment

 

Whereupon the meeting adjourned at approximately 9:45 p.m.