Town of Lisbon
Zoning Board of Adjustment Minutes
February 18, 2009
6:00 pm meeting opened.
Members present: Emory Younkins (EY), Barry Lucas (BL), Robert Clark (RC), Jim Ingerson (JI), Jerry Hite (Absent)
Administrative Assistant: Barbara Menchin
Public: Dick Morneau (Associated Const., Civil Engineer) Littleton, Mark Champagne (Applicant) Sugar Hill, Jan Marshall (Lisbon Resident), Jed Callen, Esq. (Baldwin & Callen, PLLC Attorneys for STOP) Concord, Alex Aaron (Did not state town residing in), James McGovern (Abutter) Lisbon, Jean McGovern (Abutter) Lisbon, Doreen Kaspszak (Lisbon Resident), John Kaspszak (Lisbon Resident), R. Thibodeau (Littleton), Leigh Condon (Lisbon Resident), Ron Lippard (Lisbon Resident), Ina Lippard (Lisbon Resident), Steve Hunt (Sugar Hill Resident), Periann Knapton (Littleton Resident), Dean Knapton (Littleton Resident), George Paige (Lisbon Resident), Timothy Cowles (Franconia Resident), Scott Manning (Bethlehem Resident), Damus Champagne (Littleton Resident), Lois Champagne (Littleton Resident), Robert Blechl (Caledonian
Record), Shawn Tanquay (Town Counsel)
EY called the meeting to order and requested a motion to accept the minutes of the January 21, 2009 meeting. BL made the motion to accept, JI 2nd, so voted all.
EY stated “The purpose of tonight’s meeting is a rehearing of the application by Mark Champagne as a result of the Board’s granting of the Motion for Rehearing submitted by Attorney Callen on behalf of his clients.”
EY spoke of the documents which have been received since the October 27, 2008 deadline.
He further spoke of the February 11, 2009 deadline for new submissions and that the Board would not receive anything further in the form of written material.
EY stated the proper certified mail was sent to all abutters.
EY reviewed the various documents submitted to the Board:
A letter from Jan Marshall dated February 12, 2009
An outline from Jan Marshall dated November 5, 2008
A letter addressed to Moose Realty from Valued Appraisals about a typical buyer purchasing property near a gravel pit.
Another outline from Jan Marshall dated October 31, 2008.
Petitions signed by Richard Thibedeau and abutter, George Crosby of Miami Beach, Florida, 5 people who live in Lisbon Center
A letter from George Crosby of Franconia who lives in Miami and is an abutter
An email from a Mr. Jim Scanlon
A letter from Trout unlimited
A letter from James & Jean Mcgovern dated October 20, 2008
A letter from Kevin Manning
Another letter from Mr. James McGovern dated November 6, 2008
A letter from the Town of Sugar Hill Conservation Commission
A letter from the Town of Bethlehem Planning Board stating they had “no issue” with Mr. Champagne’s project
A letter from North Country Council stating “upon review of the planning board conditions of approval it appears to me that each of these potential impacts have been adequately addressed by the community”
A letter from Jed Callen dated February 10, 2009
EY gave an outline as to how the meeting would proceed stating that Mr. Callen could give his point by point outline of his rehearing request addressing only those items he addressed in his letter, then there would be an opportunity for the Board to ask questions, then he would accept public comment and requested the people speaking state their name and physical address and then to speak specifically to what Mr. Callen has presented, then Mr. Champagne or his attorney to rebut the issues and then finally deliberation.
EY turned the floor over to Mr. Jed Callen of Baldwin & Callen, PLLC. (From this point Attorney Callen will be known as JC)
JC opened with he had several questions and stated he found the procedure unusual and confusing and further stated that this meeting was not noticed properly. JC stated “we are here to hear an application to grant or deny a rehearing on the Mark Champagne Special Exception. JC was confused as to if this was a rehearing or a discussion to grant a rehearing.
Attorney Shawn Tanguay “the purpose of this procedure is a rehearing to determine whether or not there have been any mistakes made by the Board. In doing that you are the moving party and claiming there are 12 points of mistake or error committed by the Board. The Board is going to hear that. Mr. Tanguay ask Mr. Callen if he was relying on his December 3 motion to rehear. “The only reason why I ask that is because you sent a subsequent motion to rehear where you only refer to 8 points.” At this point, JC could not locate his December 3 and February 10 motions and BM offered her copies.
JC proceeded citing RSA 677:2 and RSA 677:3 and stated there is a violation of RSA 677:3.
JC stated that his request for rehear was on December 3 and he stated that he believed that by law, the Board did grant that rehearing.
JC asked if the Board not planning on making a decision on the Special Exception tonight but on whether or not to grant the rehearing?
Attorney Shawn Tanguay stated the Board has outlined its process and requested JC to proceed with doing so the Board would appreciate that.
JC stated that the Board’s obligation was to grant or deny a rehearing within 30 days and he knew that the Board had received his request as he had sent it certified and implied that the Board had not received all of the letters he had sent in the past. He then stated this is why you should have granted a rehearing as I believe you legally did as you publicly noted tonight’s meeting.
JC spoke of the record saying that there was no live application before the Board. The only one that was ever submitted was the one presented in 2007 which the Courts declared void. JC claimed legal error as there was no new application. He further stated that the file does not include even a letter to reactivate Mr. Champagnes 2007 Application for a Special Exception. JC further stated that there were no submittals from the traffic studies or hydrogeologist and he felt it very mysterious that the applicant had not re-submitted this information. He also stated that the Board used Mr. Champagnes reports but did not use STOP’s reports and studies. JC stated the Board is being very mysterious and he has to guess what pieces of evidence he may have submitted or not. He also
wanted to know pieces he has submitted are still alive and what are not. He further stated either clarify what is in the record or assume everything is in the record.
JC stated he would keep his comments on point so that the “note taker” could take proper notes.
JC stated there was an inaccuracy in the application as there are two districts on his property. Mr. Champagne had to request a special exception for both A and D districts. Mr. Champagne has 2 pits in District A and 3 pits in District D. As Mr. Champagne only requested a special exception in District A the application is fatally flawed and unlawful and the Board can’t grant this special exception unless Mr. Champagne applies for both.
JC stated to points 3 & 4 that it was unlawful and unreasonable for the Board to declare a deadline on written documents to be submitted. JC stated at the November Hearing, he was not allowed to present several documents and (at this point the secretary could not hear and Attorney Shawn Tanguay requested Attorney Callen to speak to the Board). JC then spoke of 23 photographs of Mt. Eustis Road he tried to submit at the November 2008 meeting but that the Board refused to allow in as testimony. JC again asked if he could submit these photographs.
EY stated the Board would not accept any written testimony but would receive oral testimony. EY further stated the Board would not accept any graphics at this point.
JC stated he thought that this is a legal error to not allow any written or graphics. He further stated that what “you are suggesting is that you can have a non-public public hearing that you can cut off some of the public. The date of the public hearing is not your deadline to submit.
JC cited RSA 676:7 and 676:4. He stated that 767:4-4 regarding procedural defect shall result in reversal. He further stated that this hearing is not appropriate.
JC cited that BM is not a trained stenographer and that she can’t get it down and the Board can’t make a decision on the record, “you just can’t rely on Barb’s notes”. He further stated that she just has not done a perfect job and that she stated something in previous minutes that just was not true. She cannot get every quote that I have cited. “You cannot rely on Barbara’s quick hand and ears” …..”so that you can go back and study it”. “So what you seem to be saying is the real public hearing is the earlier game and we are just going to go on a charade on the actual public hearing night.” “Anything you want to get in accurately, you have to submit it earlier.”
JC stated as to the record that it was messed. He further stated that he sent a “Right To Know” letter and BM stated that it didn’t show up and he further stated that he was left with a complete lack of knowledge as to what is correct and what is not. Then stated he suggested that if the Board grants this re-hearing then the Board would start a new file and request a new application.
JC stated that the Board can’t rely on conditions of the Planning Board’s conditional excavation as meeting a criteria for a Special Exception. He further stated that Mr. Champagne can’t get a permit in either of these districts without the Special Exception. JC cited Hansel v Keene 138NH 99@102, Cesare v Windham 121NH 552@523, Tidd v Alton 148NH 424 2002. JC stated that it is illegal for the Planning Board to grant a conditional approval without the Special Exception.
JC stated that in the Board’s decision several of the Board members referred to the Planning Board conditions as familiarizing themselves with those conditions and in doing so waives the zoning criteria.
Regarding point number 8, JC stated the record is unclear. He further stated that the ZBA was looking at the Planning Board records but not the complete file. JC stated that one of his clients found documents which included plans for the Planning Board but later when another client went to see the file, they didn’t see the plans. JC stated that he never found a document stating “attached hereto in support of my application for a Special Exception please find A, B, C and D.”
JC stated regarding to Point 9, it has been misspoke as to how much of the excavation operation is in District A & D. It has been said that this land isn’t any good for housing and that this should become industrial. “This is absolutely wrong” as the majority of the site is in D district where an industrial park is not permitted. JC cited Tidd v Alton regarding this. “To assume that this site should be industrial, is simply wrong”. JC stated that EY stated that the area needed to be flattened to be made for an industrial use…….EY stated that is what he had said and that BL stated “that’s what this country was built on was pipe dreams”.
JC spoke of Point 10, regarding the proposed operation has severed his lots and is using the Sugar Hill Town line as a property boundary. He referred to the to Sugar Hill Board of Selectmen dated February 9, 2008 and that must have been a mistake as it would have been 2009. JC further stated that it properly says exactly what the Board should have done at the beginning of all this. JC cited Sugar Hill Lot 1-13. JC cited 674-53 and stated that the Board illegally granted a Special Exception as it created a non-conforming lot in Sugar Hill. JC further asked if the “note taker/secretary” would like a copy of the letter submitted to the Sugar Hill Board of Selectmen and she stated she had a copy of that letter. JC cited RSA 674:53 and RSA 674:41. JC stated that when Sugar
Hill responds to the letter, they wills state that “no you can’t do that”. It would make an illegal lot and their regulations say so as the lot does not have a 200 foot road frontage. JC stated the proposal illegally uses the town line as a boundary. There would have to be a joint special exception between the two towns. He further stated that Sugar Hill could not permit it because of the state statute 674:41. JC stated he raised this issue in 2007 and then again in 2008 and finally the Board asked the question. JC cited more case law: Turco v Barnstead 136 256, Dachon v New Durham ZB 131-632 and Churchill Realty v Dover ZBA 156 668 2008.
At this Point Attorney Tanguay requested Attorney Callen to go back to the issue of 674:53 asking this Board on the assumption if Sugar Hill comes back and says that the land on its side would be a legal lot, are you asking this Board to make a determination that it’s not a legal lot? JC answered I don’t think I have the temerity to ask you to do that.
Attorney Tanguay asked Attorney Callen if Sugar Hill says there is no violation of our zoning ordinance, are you asking this Board to make any other further determinations based upon that? JC stated yes. The abutters are willing to appeal an administrative determination. He further stated the only road frontage to this lot is on the Lisbon side and a right-of-way on the Sugar Hill side.
JC stated there are legal arguments that can be made on this and there have been procedural violations. JC stated that this application didn’t meet the criteria and Mr. Champagne submitted very little. Regarding 8.03.03 that this operation does not adversely affect and there were no reasonable objections raised, “we don’t agree”. For the ZBA to state that the objections raised were unreasonable and that the town needs the tax base is unlawful and unreasonable. “The abutters raised reasonable objections and you dismissed everything”. “You may not agree that trucks at night and at dusk doesn’t produce unreasonable hazard and nuisance or noise or blasting or dust is a denial of 8.03.03 not reasonable. JC further stated he finds enough
reasonable objection. He further stated that if you do not find then you have already violated 677:3 by not granting the re-hearing in 30 days of my requesting it, then I believe you will have to hold a rehearing and if so I will be back when you schedule that to present my clients objections to it but prior to that we’ll be here with a right-to-know request saying give me a copy of what’s in the file. At this point, JC started to lose his voice one hour and 38 minutes into the meeting and thanked the Board.
EY asked if there were any questions form the Board to Attorney Callen.
BL asked if Attorney Callen had so many documents why he didn’t submit them as some of them were documents and photographs he tried to submit at the November hearing.
JC stated he had it is convenient for the Board to say why didn’t you submit. “You don’t know what my work schedule is like and you don’t know what other deadlines I have. Furthermore I had the right to see what was submitted by the applicant.” He further stated that applicants have to submit their application and it has to be placed in full view within notice. He state it is his right to not submit everything he had. JC again commented on the deadline request. “I asked to submit and you stated you may only speak”. It is a visual aid and it is for Superior Court and there is nothing in the law that states it can only be verbal.
Attorney Tanguay asked if Attorney Callen was alleging that the Board was not allowing demonstrative evidence. JC stated he is alleging that “you are not allowing submission tonight because that is what you seemed to have said”. “You could have saved your secretary by allowing submissions so that she would not have had to write down citations. JC stated he wanted to submit the photos and that he wanted it to be in the record so that he could show it when he went to Superior Court.
Attorney Tanguay stated that the video issue had been raised and that he didn’t think the Board had raised the issue against showing of any video.
“We believe the minutes are faulty, we have transcripts, we have videos. In one case, “I asked a question, it wasn’t a critical question, but the minute taker, the minutes were just damned wrong.” I asked a question, it was procedural, the minutes are wrong. Certain statements JC stated he made “you may need to check to see if I was lying to the Board”. He further stated “it’s your job to go study”.
EY asked if there were any further questions of Mr. Callen by the Board members. As there were none, EY opened the discussion to the public requesting the person speaking give their name, address and to please keep the questions within the scope of the motion made by Attorney Callen.
Mr. Dean Knapton stated: “I live right across from Mr. Champagnes proposed gravel pit.” When asked his address, he stated he lived in Lisbon. When asked again for his physical address he gave the address of 1710 Meadow Street, Littleton. Mr. Knapton stated he cannot see any houses from where his house is. “This is great”. “What Mark Champagne wants to do is great if he had an operation that would be similar to Chick’s Sand and Gravel where one would have to travel a couple miles to get into the site.” He further stated to put a granite quarry in the middle of a neighborhood was terrible. “What you need is a bigger area where this will fit”. “What about wells, and traffic?”
“Unbelievable”. “Why are you trying to ram this down our throats? “We don’t want it”. “We are not going to vote for you, every single person has a reasonable objections, we told you again and again, people love it the way it is. The purpose of the Special Exception is to ask the people what they want.” “We don’t want it”. EY thanked Mr. Knapton.
Ms. Ina Lippard 21 Jersey Ave., Lisbon: “I pay taxes in this town, I pay you and I have watched you people be rude and disrespectful to the people who actually abut. I am a member of STOP so I do have standing in this case. I was asked to join it by the Sierra Club out of Concord because they are concerned about the Ammonoosuc River and that area. Specifically to your points, reasonable objections: I had a lot here in town, it had proper frontage, it had city sewage it had been previously subdivided by a previous plot plan. I came to the Board, not this Board, not the same people, and asked if I could subdivide that lot off again so that an elderly couple could put a handicapped house on the lot. Both of the houses on either side raised what this Board called
reasonable objection and only on those reasonable objections, it was rejected. You have 16 people here and I only had two. This is not a standard, this is not equal treatment under the law. I spent a fortune getting proper surveys. I ended up losing a lot on this deal. I have lost respect for you people. How can you treat people so in equal. Just because these people don’t vote or pay taxes in Lisbon doesn’t make them less human. Just because the loons that are nesting in that pond can’t vote for you or pay your salary doesn’t make them less valuable. And I don’t understand, like this man, when 13 gravel quarries in this area, why are you trying to cram this thing down our throats. And why you can’t see the difference between Chick digging dirt and this guy blowing off the top of a mountain 500 feet away from an earthquake fault line and even his geologist admits it is there.
Ms. Jean McGovern, Old County Road, Lisbon: I work in the emergency room and I can take care of heart attacks and this makes me a little nervous but I would like to address this. We are 800 feet from this property and 1200 feet from the blasting site. We have built a new house. It was our retirement home. My husband and I have been a member of the community for 33 years, Jim has served on the school board, I have worked at the hospital for a number of years. I would just like to ask each of you honestly if you were in my situation and you knew there was a possibility of well contamination or water contamination and there was going to be blasting 3 or 4 times per year over a course of 12 years, now if I was to put the house on the market, I legally and morally would have to disclose this
before I could sell. Even though it has been agreed that you would test my well water and I would have to tell someone your well water would be tested after each blast, it may or may not be contaminated, would any of you buy my house? And if you can honestly say you would buy my house or you would want your child to live in my house and drink my water and know that 3 or 4 times a year they have to be faced with this remote possibility that your drinking water is damaged and their health is in jeopardy, would you buy my house? Would you want your child to buy my house? If you say no, then you have to say no to this Special Exception.”
Ms. Jan Marshall, Presby Rd., Lisbon: “I spent last night at a ZBA meeting in Lebanon, they were very happy to accept my testimony in writing, would you be willing to accept it? EY stated you may testify. Ms. Marshall asked: “Would you like me to read it?” EY stated “sure”. Ms. Marshall asked: “Would you like a copy of it so that Barbara doesn’t have to take notes?” EY stated “We are not accepting anything written”. Ms. Marshall stated she has testified at other ZBA’s and she has never heard of something like this. “I am a taxpayer and I don’t like the implications for our budget. You have used it to refuse to go by the rules that every other ZBA in the state has to go by. This ZBA somehow thinks it’s different. I think that’s wrong.” A member of the audience stated they couldn’t hear Ms. Marshall and she turned her back from the Board and started to speak to the audience and the note taker had a difficult time hearing the testimony. Attorney Tanguay requested Ms.
Marshall address her comments to the Board. “I also said I am angry as a taxpayer that the Board was taking a risk with our money by taking a very aggressive stand to recusing information from the public.” “By not taking testimony you risk my tax dollar and I am not happy with that.” Ms. Marshall again asked the Board if they would take her written testimony and if not she would re-submit it at a later date. “You don’t want it?” EY stated, “not in a written form”.
EY asked if there was anyone else.
Mr. Jim McGovern, Old County Road, Lisbon: “I would like to address points 4, 5 in the record. I am a member of STOP and an abutter. “You should have before you a letter written by Bruce Consaul, Valued Appraisals that was submitted but not in time. The letter is regarding property values of homes near gravel pits. Mr. Consaul stated it is practically certain that living near a gravel pit would lower values. We submitted expert testimony regarding Lisbon Zoning Ordinance 8.03.03 and asked to have the same validity that Mr. Champagne’s experts have been given. He spoke about reasonable objections. He stated that the Board couldn’t sit there and look at a petition with over 100 people and state their objections were unreasonable. Mr.
McGovern stated he was willing to go through each item of the petition to prove there were reasonable objections. Mr. McGovern spoke to the amount of cubic yards to be allowed for Mr. Champagne to remove and also stated the minutes of the March 2008 Planning Board. Mr. McGovern stated that the law requires the individual Board members to put themselves into that situation and render an unbiased decision. Mr. McGovern stated that the objections on the petitions are clear. “This is utterly absurd”. “It is unclear as to what impact to this area is going to be.” The information currently available must take the form of opinion, expert or otherwise”. “It is impossible to determine what the impact will be of this operation”. “The objections voiced in the petitions are largely opinions.” “Every one of them are reasonable”. Mr. McGovern spoke of the Lisbon Planning
Board minutes of April 16, 2008 regarding how many cubic yards per truck are allowed. “The sole purpose of this figure was to allow the town to limit the number of trucks per year”. Mr. McGovern asked how much a 20 cubic yard truck could take and the estimate was 100,000 pounds. Mr. McGovern asked another person and he was told estimate between 80,000 and 100,000 pounds which also confirms that this would be over the legal weight limit. “This information is very important”. “And it is no criticism to Barbara but these minutes were also very sketchy”. “I think this information is very important and I also would like to submit this in writing”. EY stated “I am sorry Jim, we have already made our decision on receiving written submissions”.
Ms. Alexis Aaron Albanese, R49-9-1: Ms. Albanese asked about the 8 Petition signatures and EY stated that was submitted since the last hearing. Ms. Albanese asked how many signatures were on the other petitions and EY stated “a bunch”.
EY asked if there were any other comments by the public. As there were no further comments, EY turned the floor over to Mr. Champagne and his council, Attorney Bruce Marshall for rebuttal. Attorney Bruce Marshall (ABM)
ABM introduced himself for the record. AMB stated he was going to limit himself to a brief response as he doesn’t like to hear himself talk quite as much as Attorney Callen. He would address the December 3, 2008 Motion to Rehear. ABM started with “before I start, Attorney Callen had gone far beyond what he had written in his request to rehear.” “I will rely on Town’s Council but I want to point out for the record RSA 677:3 regarding the rehearing process. A motion to rehear shall, earlier Attorney Callen referred to a different statute to let the Board know how important the word shall is. The motion shall set forth fully every ground upon which the decision or order claimed to be unlawful. So based on that I would ask the Zoning Board not to accept
the expanded arguments that Attorney Callen because it is not permitted by the statute.” “With that being said, we are all here today because of Judge Vaughn of Superior Court issued an order which stated now is the appeal in the first decision. This case is remanded to the zoning board for full consideration of Mr. Champagne’s application after notice to abutters and municipalities.” To ABM’s understanding the Superior Court remands a case down to a lower body. Sent back for specific actions. And he spelled out specifically what action it is, therefore, Mr. Champagne wasn’t required to submit a new application, as Attorney Callen has called it a 2008 application. The application is the original application, the Superior Court remanded it back and that is what we are working under. We are working with that file, the documents, everything that was previously submitted up until the present.”
“Attorney Callen brought up an issue, he took exception to the time line of written submittals, I believe it was lawful.” ABM cited RSA 676:7 regarding notification and time. ABM stated in this case the notice of the hearing and the written submission request was sent out some 24 days before the submission deadline and 33 days before the actual hearing. “I feel as if the public had statutory notice as to when the deadlines would be. “I find it kind of humorous that Attorney Callen states to the Board that there are people out there that are shy or can’t speak for themselves so they need to submit things in writing from his clients. He’s saying he is their attorney and submitting stuff for and he can’t represent the other people in New Hampshire, he
can only represent his clients. It really lacks common sense that, they had their lawyer here and as you can see by tonight, he isn’t afraid to get up and talk as long as it takes to get his point across. So, he had ample opportunity to speak on behalf of his clients. I am aware of no one else in this community who is appealing the zoning board decision because they were not able to submit something in writing or they were afraid to speak in public.” ABM spoke further on RSA 676:7. Early submissions allow the applicant, the zoning board and interested parties to read before the hearing and to prepare for the hearing. “Attorney Callen seems to think it is ok to have meeting after meeting after meeting and that is because he’s not picking up the tab. And the applicant has the right to not be stalled forever.”
ABM referred to article number 4 regarding Planning Board minutes. “Attorney Callen mentioned that refusal was unlawful and unreasonable and the failure of the minutes to reflect this is accurate and is a perfect demonstration as to why written submittals is statutory. It is my understanding that when the Zoning Board is hearing a case, you are listening and you have your pens out and taking notes. And the courts don’t expect the minutes to reflect everything that is said. It’s a set of minutes that NH Supreme Court has said that really to be given just the important aspects of what has been said. And only the ZBA will determine what was important and what wasn’t. And every meeting I have been to in this town for Planning or Zoning the members have had their pens
out and have been jotting down notes. So, you take those notes and you read the minutes and you have your own set of notes. Those notes don’t have to end up in the minutes. Minutes are just the best outline you can come up with and the courts say that is acceptable. Attorney Callen commented a number of times about refusal of graphic depiction, I recall the hearing the same as tonight where they brought here the same pictures to show, you saw them, they don’t need to be incorporated into the record. They had seen ads for the hearing, they could have brought it and submitted it. There is no one else that appealed to the Zoning Board about submitting the writing information. Attorney Callen did submit information by the date and so he could have submitted everything. He had ample time, more than what was required by the statute. The Zoning Board could have submitted an ad and said “we are having a hearing 5 days
from now”. It didn’t, they actually gave you extra time which further delayed the applicant, so this Zoning Board went beyond what was required and catered to Attorney Callen and his clients but Attorney Callen couldn’t get his act together in that extra amount of time to put the documents in in time, that’s his own concern.”
ABM referred to number 6: “Large packet of letters, I understand that has been resolved based on the conversation between the Board’s attorney and Attorney Callen.
ABM referred to number 7: “The granting of the special exception was unlawful because the Zoning Board repeatedly in it’s deliberation relied on the Planning Board’s conditional approval of an excavation permit. And then he goes on to talk about that creates some circular and illogical and unlawful conduct of the Zoning Board. My understanding of the law and I’ll ask the Board to seek council and get it’s own opinion there. When a Board is acting as a Zoning Board you do so with knowledge of what the zoning board’s duties and obligations are. You also do it with the knowledge of what the Planning Board’s obligations are. And you have a right to rely on that information especially when it comes to information like a Master Plan. Planning
Board puts together the Master Plan but the Zoning Board needs to know what the Master Plan is. You have the right to rely on that information on any application. Those are all things that the Zoning Board must and has a right to rely on. The zoning board isn’t in a vacuum. You don’t have to make believe that you can’t consider anything unless it is presented here. You have local knowledge, you had knowledge of the parcel from a previous application. If you are going to approve a Special Exception, you have knowledge of what the Planning Board would have to do next. The Chairman of the Planning Board came here as a public citizen and stood up and told the public what he had experienced and the Planning Board has the right to do that and this Zoning Board has the right to hear that and give it whatever weight it considers is sufficient. Attorney Callen makes the argument that it’s unlawful for the Zoning Board to do
that but I have not heard him site the law on that issue that are relative and I’ll leave it to the Board to review the sites that Attorney Callen alleges or supports his argument. I am convinced that if you look at them you will see that it doesn’t support. This Zoning Board based on my knowledge and review of the record never went over and got the Planning Board and put it in your record. The Zoning Board has it’s own record and at the last hearing we came back to you because of the notice issue. When the first appeal Attorney Callen argued that you used insufficient information. We came to the Zoning Board with the same experts that went through the whole Planning Board process. We addressed all the issues and concerns regarding traffic, hydrology, blasting. When you have expert testimony before a zoning board and people stand up and so far tonight all I have heard is I don’t want this in my back yard or I don’t want to listen to noise, well that isn’t reasonable given
that even Attorney Callen and his clients, they have the right to make noise on their own property. Just because they prefer to not have that on that property, that’s not right, it’s not reasonable. A property owner has the right to develop their property within the law and that’s exactly what Mr. Champagne’s doing. He’s come before you for a Special Exception to excavate material, something that the state thought was so important that they passed a statute guaranteeing that this could happen to towns. Attorney Callen’s clients are trying to stop excavation from occurring. Legislature passed a law to make sure they couldn’t do that.”
ABM referred to number 8: “The grant was unlawful because the Board repeatedly relied on plans and documents submitted to the Planning Board and not the ZBA during the process. I don’t believe that is true. I ask for you to go back and refer to your own notes. Yes, a lot of things we brought to you were the same things we brought to the Planning Board, that doesn’t mean you can’t consider them. As far as Attorney Callens allegations about some of his clients going to the town and asking for records and what they were told, I ask the Zoning Board to give it the weight you feel it deserves. In court I would object that it is hearsay.”
ABM referred to number 9: “The Zoning Board relied on it’s own opinions on what the site looked like and the use for the future. When I read through this there is a lot of talk about industrial use. I assume that Attorney Callen read the Master Plan for Lisbon, I know the Zoning Board read it. That’s what the Town would like to see in this area and that is exactly what Mr. Champagne has said from the beginning and so it is proper for the Zoning Board to discuss things like that. What happens to the property in the future. It makes sense to want to know what is going to happen to the property after. The Master Plan says what it would like to be and Mr. Champagne has said what his plans are for in the future. This is something the Board should want to know. Attorney Callen kept saying and I think he wrote it in his documents, that the Zoning Board considered the industrial park to be a “key factor”, in the approval. When I read the approval and I looked at my notes, a few of
you said it was “a” factor. I never once heard the Board say this is a key factor, that’s Attorney Callen trying to put a spin on what this Board did in trying to gape all the other comments this Board said when they went down each separate section.”
ABM referred to number 10: “He speaks that the proposal illegally uses the town boundary line with Sugar Hill as a subdivision. All I can say is the records are before you. He keeps talking about a 200 foot frontage. I would ask the ZBA to take a look at what the frontage is in the previous or as it is now before any excavation because there is not 200 foot of frontage. The other access to the property in Sugar Hill. I am confident Sugar Hill will come back and say there is no violation.”
Attorney Tanguay wanted to clarify the legal point. Attorney Tanguay asked ABM which RSA he is relying on. ABM stated: 674:53 and also relying on the deeds of the property and the access that has already be approved for the parcel in Sugar Hill.
No need to respond to number 11. ABM felt as if he had already addressed this issue.
ABM referred to number 12: Regarding an appraisal that was done. “Throughout the entire process we have found there are several gravel pits in town and we couldn’t find in any of your records where residents abutting those gravel operations requested a tax abatement. So this is great dimmunition of value, how come there hasn’t been any tax abatement requests. You have several gravel pits in this town. This was not an appraisal, it was someone who wrote in that was a broker who thinks this is going to devalue property.”
In summary, ABM apologized for fumbling along as he was trying to follow along with Attorney Callen’s thought process and “it wasn’t one he would normally try to follow. Every hearing before the Zoning Board we brought before you the entire project. We came back, we brought our experts and addressed all the questions that the Zoning Board had and all the questions and concerns the public had. I have not seen the public come back with any experts that are contradicting anything significantly what our experts say. Is it reasonable for abutters to have concerns about the operation? Yes, I am sure there are concerns. Is it reasonable to the standard the Zoning Board is at to stop the application or stop the excavation on the site, in this case the Special Exception?
No it isn’t reasonable. We have had a bunch of experts telling you what you needed to know. It’s not reasonable for someone to say “I don’t want it in my back yard” as a reasonable objection to the standard where you should deny or reverse your decision of your previous approval. Merely standing up saying I don’t want to hear noise, or blasting is not reasonable. I don’t want to hear trucks go by on a public road, it isn’t reasonable. This is a clear case of they don’t want it in their back yard, they want something else, that’s fine, they can get together and buy the property, but they didn’t. Mr. Champagne has the right to develop it in accordance to NH State Law. The Zoning Board has the right to rely on it’s experience and what it knows what the Planning Board has to do. You know what the Planning Board had to do and you have the right to rely on that
knowledge.”
EY asked if there were any questions from the Board. There were none.
EY asked Attorney Callen for his rebuttal regarding any comments made by the applicant or by members of the public.
JC stated he would be overjoyed if the Board would deny the motion to rehear and start the clock. He further stated there were several errors that he had stated the last time and this time. AC stated he would ignore the “not that subtle” digs at JC and my process. JC stated the reason why his presentation was as long as it was, was because he couldn’t hand it in and summarize briefly. JC did not want to be rushed. JC quoted Attorney Marshall regarding the Master Plan with respect to the future use of this industrial area. “That’s simply wrong.” The Master Plan is an attempt to look into the future. The fact that there is something in the Master Plan regarding Industrial Zoning is wrong. The issue about the Master Plan regarding the
Littleton/Lisbon town line is an aspiration that wasn’t met. Regarding the property boundary doesn’t have 200 foot of frontage now. That is a grandfathered lot which was created with less than 200 feet. There are subdivision regulations.
JC spoke regarding ABM’s comment about the abutters objections and concerns. To equate the amount of noise a residential property has compared to a gravel operation is disingenuous.
JC finally stated “I stand on my written submission that I said you should grant the rehearing and with my suggestions, start a new record”.
EY stated: “Perhaps there is some confusion out there, this is the rehearing this evening.” AC then asked “this is not, you are here to deliberate on a special exception not to grant a rehearing or not? I asked that question extremely explicitly at the beginning and you said no.” Attorney Tanguay spoke “there was never any question posed by you nor was there any answer by the board about this, this is a decision that you made apparently in your own mind, this has been noticed as a rehearing, it’s been very clear to everyone here that this is a rehearing. The motion to grant the rehearing was granted several weeks ago.”
EY we have had our rehearing.
JC stated I thought the minutes reflected that I understood that tonight to be a rehearing I expected an application for a special exception to be argued and to respond to that. I then understood your statement at the beginning was to decide whether to rehear.” Whether it is or not, here is my point, when a board grants a rehearing, it wipes the slate clean, there is case law that says the board needs the applicant to make its case and allows the public to comment, I have hear no case made on behalf of the applicant.” JC objected that just about everything is improper and if you now deliberate and grant a special exception you will do so with an objection that I think you confused the entire audience as to what you were hearing.”
EY asked for a motion to continue. BL made a motion to continue the meeting to March 4, 2009 at 6:00 pm at the town hall. JI 2nd. So voted all. EY stated the meeting will continue on Wednesday, March 4, 2009 at 6:00 pm at the Town Hall and there will be no public comment or submittals. Thank you.
Motion to close JI, BL 2nd, so voted all.
Motion adjourned at 9:00 pm.
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