TOWN OF WALPOLE
BOARD OF SELECTMEN
PUBLIC HEARING
MAY 3, 2007
Selectmen Present: Charles Miller, Sheldon Sawyer, Whitney Aldrich
RE-HEARING ON MOTION:
Ernie Vose, Moderator, called the Public Hearing to order at 7:15 P.M. in the Town Hall.
Mr. Vose advised that the Selectmen called this Public Hearing for a Rehearing on Article 3 of the March 13, 2007, Town Meeting, on May 03, 2007, at 7:00 PM at the Town Hall.
ARTICLE 3: Are You in favor of the adoption of Amendment #2, as proposed by the Planning Board for the Walpole Zoning Ordinance as follows: “To amend Article VI Commercial District, Section B. Uses Permitted 3. “Shops, restaurants, and other retail establishments not exceeding 40,000 square feet in gross floor area.” And Article VIII Rural Agricultural District, Section C. Special Exceptions: (g) “No retail commercial establishments shall be permitted which exceeds 40,000 square feet in gross floor area.” By replacing the words “establishments” with “buildings”.
The motion for rehearing references RSA 677:2, and Attorney Hanna has correctly requested that the Board of Selectmen consider the motion. Mr. Vose explained that this is not a Public Hearing but rather a Rehearing. Mr. Aldrich said that the public is allowed to be here but the Local Government Center advised that: “This is not an opportunity for affected persons to renew debate about the underlying issue, nor is it a public hearing where members of the public could provide input and opinion on the issue. There is no requirement that the selectmen allow anyone to speak, or that they take any additional information before making a decision.”
Mr. Sawyer noted that the Board of Selectmen sought legal counsel from the Local Government Center and they are prepared for this Hearing. Mr. Aldrich advised that they have two choices “yes” or “no”.
Attorney Thomas Hanna represents Berkshire who owns property on both sides of the existing shopping center. He is at this meeting to convince the Board of Selectmen to call a special Town Meeting to segment Article 3 into two parts. It is not a question of clarity but of not being allowed to vote on a disparate issue. There should be a vote for the Rural Agricultural District and a different vote for the Commercial District. He expects this hearing to be one of fairness and process and not the merits.
Attorney Thomas Hanna distributed copies of a memorandum “In Support of Motion for Rehearing”, dated May 3, 2007, to the Board of Selectmen and read portions of that document.
“There is a huge difference between Walpole’s Commercial District – which covers a relatively limited area – and the Rural Agricultural District which covers most of the Town. It goes without saying that a discriminating voter would likely choose to have more intense commercial activities in the Commercial District than in the Rural Agricultural District.
Article 3 on the 2007 Town Warrant deprived voters of the opportunity to discriminate between activities in disparate zoning districts.
Board of Selectmen Meeting – May 3, 2007 – Page 2
We ask the Selectmen to remedy this unfairness by calling a special Town Meeting so that there can be a separate vote on the two distinct policy issues which were commingled in Article 3.
Walpole voters were disadvantaged when they cast their votes on Article 3, because they were denied the opportunity to vote separately on the amendment for each of the affected zoning districts. Votes may have considered a 40,000 square foot limitation on retail buildings in the Rural Agricultural District to be in the best interest of the Town, while simultaneously not wanting to limit retail buildings to 40,000 square feet in the Commercial District. Voters at the 2007 Town Meeting had no such choice. Those in favor of limiting retail “buildings” in the Rural Agricultural District to 40,000 square feet could only do so by also limiting retail buildings in the Commercial District.
The primary purpose of establishing different zoning districts is to allow municipalities the opportunity to create different regulations for different areas of the municipality. RSA 674:20 governs zoning districts. It states:
‘RSA 674:20 Districts. – In order to accomplish any or all of the purposes of a zoning ordinance enumerated under RSA 674:17, the local legislative body may regulate and restrict the erection, construction, reconstruction, alternation, repair, or use of buildings, structures, or land within each district which it creates. All regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.’
The local legislative body that voted on Article 3 at the 2007 Town Meeting was deprived of the right to adopt a regulation in one district that was different from the regulation in another district, because Article 3 unreasonably and unfairly presented two separate zoning amendments in one warrant article.
At its meeting on June 13, 2006, the Planning Board recognized that the 40,000 square foot limitation could apply in one district and not another. When discussing the adoption of a resolution “that it is the understanding of this Planning Board that no single retail building shall encompass more than 40,000 square feet.” Mr. Sawyer “asked if it was just in the commercial zone, answer was yes.” (See June 13, 2006 Planning Board minutes.)
The vast difference between the purposes of the Commercial District and the purposes of the Rural Agricultural District is demonstrated by the preambles at the beginning of Article VI and Article VIII, respectively, of the zoning ordinance:
Article VI, “Commercial District”
- Preamble
The purpose for establishing a Commercial District is to provide within the Town ample area in which business and the sale of merchandise can be conducted with its inherent traffic, loading, parking, and activity normally unpleasant in close proximity to restful and comfortable residences.
Article VIII “Rural / Agricultural District”
- Preamble
The purpose for establishing a Rural/Agricultural District is to provide ample area for pursuit of agriculture including, but not limited to: dairy farming, poultry raising and timber harvest.
Board of Selectmen Meeting – May 3, 2007 – Page 3
Within this district in Walpole, it is expected that residential living will be enjoyed on what were once farms of large acreage, with or without leasage of some of the land for tillage and the usual agricultural pursuits. The Planning Board recognizes that there may be fewer active farm units in the Town in the future, but probably these will use more land by lease or other arrangement. It may be that in the future, amendment to this Ordinance may be needed to increase the Residential District along certain highways, yet retaining the arable land set back from those highways for this Rural/Agricultural District.
The Protest Petition Statute Further Demonstrates Why Amendments in Article 3 Should Be Voted on Separately: New Hampshire law providing for protest petitions – which, if properly filed, requires a two-thirds majority vote – further demonstrates why Article 3 unreasonably combined amendments affecting two zoning districts. One amendment in Article 3, the portion affecting the Commercial District, could legally be protested under NHRSA 675:5. On the other hand, the amendment in Article 3 relating to the Rural Agricultural District could not be legally protested, because the Rural Agricultural District encompasses more than one-third of the land area within the municipality. RSA 675:5, I-b.
Article 3 Was Not Merely A Housekeeping Change: Amendment #2, which became Article 3 on the 2007 Town Warrant, was presented by the Planning Board as being a clarification of the meaning of the word “establishments” as used in the existing language of the zoning ordinance. In fact, the changing of the word “establishments” to the word “buildings” was a substantive amendment, not mere clarification.
When a citizen’s group and the Planning Board originally proposed a 40,000 square foot limitation (adopted at the 2000 Town Meeting), they discussed whether to use the word “establishments” or the word “buildings.” The draftsmen of the original limitation decided to use the word “establishments” rather than “buildings” because this accomplished their objective (stopping a “big box” retail store) and because they did not want to cause the existing shopping center on Route 12 to become non-conforming under the zoning ordinance. See Affidavit of David M. Edkins attached hereto as Exhibit A.
The contention that the word “establishments” in the 2000 ordinance was not intended to mean “buildings” is further supported by basic rules of statutory construction. The Planning Board in 2000 demonstrated that it knew how to use the word “buildings” if that was what was intended, because the same Board in 2000 reviewed and recommended an amendment to the zoning ordinance to add a definition of “building”. See 2000 Town Warrant, Article 3. Clearly then, the Board would not have used the word “establishment” in the 40,000 square foot limitation zoning amendment if it intended that “establishment” should actually mean “building”.
Article 3 Fails to Satisfy the “Single Subject” Rule: The “single-subject” rule prohibits a municipality from combining disparate changes to a zoning ordinance in a single warrant article. Handley v. Town of Hooksett, 147 N.H. 184, 190 (2001); see also Albert v. City of Laconia, 134 N.H. 355 (1991). (Attorney Hanna had a copy of the findings on Handley v. Town of Hooksett. He will provide a copy of the findings on Albert v. City of Laconia to the Board of Selectmen.)
Conclusion: For the foregoing reasons, Warrant Article 3 and the resulting March 12, 2007 vote in favor of said article were unreasonable and illegal.
Board of Selectmen Meeting – May 3, 2007 – Page 4
Accordingly, I respectfully request that the Selectmen call a special town meeting to allow voters to vote separately on the zoning amendment affecting the Commercial District and the zoning amendment affecting the Rural Agricultural District. At a special town meeting, the voters may vote to adopt the amendments pertaining to both zoning districts, but at least they will have the right not to.”
There were approximately 39 people in attendance.
There being no other public comment, Mr. Vose closed the Public Rehearing at 7:46 P.M.
Mr. Aldrich moved that the Board of Selectmen stand by the Town vote of March 13th, 2007, for Article No. 3, Amendment No. 2, by a legal interpretation. Seconded by Mr. Sawyer.
Mr. Sawyer noted that one thing that bothers him is that this is the only time he heard about a voter not having a choice. He doesn’t believe that the voters meant to separate Article VI and Article VIII under Article 3.
Romey Biron advised that right now there a lot of people here that are confused on what has been said and on the day of the vote there were some people that might have voted differently.
Attorney Robert Kasper felt that the Board of Selectmen has to talk to the Town Attorney and then make a decision. There are two sides to this issue. You can argue that it was logical and fair but the wording was changed and so several sections of the ordinance had to be amended. It seems that we should do it all at once rather than piecemeal.
Vote on Motion: Mr. Aldrich, Mr. Miller and Mr. Sawyer were in favor, the motion was approved.
PUBLIC BUSINESS:
RED SMITH – 1824 Washington Street Property: Red Smith displayed sketches of the proposed restorations to the 1824 Washington Street property. There will be some commercial space and apartments. Mr. Smith plans to attend the next Planning Board meeting.
ANNUAL TOWN MEETING – MAY 5, 2007: Ernie Vose reviewed the items to be voted upon during the continued Annual Town Meeting on Saturday, May 5th: Article 6 - the Ballam Farm property and Article 22 – Cochran Road
ACCOUNTS PAYABLE: Mr. Aldrich moved to approve the Accounts Payable check register and manifest in the amount of $539,625.33. Seconded by Mr. Sawyer. All in favor, so voted.
The above amount includes a monthly payment of $434,569.83 to the Fall Mountain Region School District.
Mr. Aldrich moved to approve a voided check register for check No. 050220. Seconded by Mr. Sawyer. All in favor, so voted.
PAYROLL: Mr. Sawyer moved to approve the payroll voucher for the week ending April 28, 2007, for gross wages in the amount of $17,459.35 or net wages in the amount of $9,788.20. Seconded by Mr. Aldrich. All in favor, so voted.
Board of Selectmen Meeting – May 3, 2007 – Page 5
Mr. Aldrich moved to approve the electronic fund transfer for the Withholding, MEDI and FICA taxes in the amount of $4,134.78. Seconded by Mr. Sawyer. All in favor, so voted.
Mr. Aldrich moved to approve the supplemental payroll voucher for gross wages in the amount of $115.01 or net wages in the amount of $63.06. Seconded by Mr. Sawyer. All in favor, so voted.
Mr. Aldrich moved to approve the supplemental electronic fund transfer for the Withholding, MEDI and FICA taxes in the amount of $24.00. Seconded by Mr. Sawyer. All in favor, so voted.
TRANSFER: Mr. Sawyer moved to authorize Myra Mansouri, Treasurer, to transfer $500,000.00 from the MBIA to the Savings Bank of Walpole. Seconded by Mr. Aldrich. All in favor, so voted.
Mr. Sawyer moved to authorize the Chairman to sign the withdrawal form for the above transfer. Seconded by Mr. Aldrich. All in favor, so voted.
MINUTES –SELECTMEN’S MEETING- APRIL 26, 2007: Mr. Sawyer moved to approve the Minutes of the public Board of Selectmen’s meeting of April 26, 2007, as printed. Seconded by Mr. Aldrich. All in favor, so voted.
DEPARTMENT / COMMITTEE REPORTS:
The Board of Selectmen received and reviewed the minutes of the North Walpole Village Board of Commissioners meeting of May 01, 2007.
WARRANTS:
WATER AND SEWER WARRANTS – WALPOLE ONLY: Mr. Aldrich moved to increase the Walpole Water and Sewer rates by 8% and to increase the North Walpole Sewer rate by 8%. Seconded by Mr. Sawyer. Mr. Miller was opposed. Mr. Aldrich and Mr. Sawyer were in favor, the motion was approved.
Mr. Sawyer moved to sign the Warrants for Water and Sewer as soon as they are prepared. Seconded by Mr. Aldrich. All in favor, so voted.
BUILDING PERMITS:
FRANK PALMIERI – MAP 012-055-007: Mr. Aldrich moved to approve Building Permit No. 2007-012 for Frank Palmieri to construct a 14’ x 16’ finished porch on Dearborn Circle. Seconded by Mr. Sawyer. All in favor, so voted.
GEORGE AND SUSAN KERSHAW – MAP 019-046-000: Mr. Aldrich moved to approve Building Permit No. 2007-011 for George and Susan Kershaw to construct a 12’ x 16’ deck at the rear of the house. Seconded by Mr. Sawyer. All in favor, so voted.
OLD BUSINESS:
TKG – CONTRACT NORTH SIDE: Mr. Sawyer moved to authorize the Chairman to sign the contract with TKG Contracting for work to be done to the north end of the Town Hall. Seconded by Mr. Aldrich. All in favor, so voted.
MELANSON’S ROOFING – TOWN HALL ROOF: Elaine Moore reported that Melanson’s Roofing came today to look at the Town Hall roof in the cupola area. Some pictures were taken.
Board of Selectmen Meeting – May 3, 2007 – Page 6
A crane will be needed to get to the cupola area to do a quick fix and to provide an estimate for work to be done in the future; the cost will be $2,500.
Mr. Sawyer moved to go ahead with this project and to have the Chairman sign the acceptance agreement. Seconded by Mr. Aldrich. All in favor, so voted.
STATE OF NEW HAMPSHIRE – COLD RIVER ROAD BRIDGE: A letter was received from L. Robert Landry, PE and Project Manager for the Cold River Road Bridge, advising that there will be a Department of Transportation Hearing on May 15, 2007, at 11:00 am in room 112 in Concord. The intent of this meeting is not to continue taking testimony as was done in the January 24, 2007 Public Hearing but instead the meeting serves as a decision making forum for the Hearing Commissioners. The public may observe the proceedings, however no public testimony will be taken.
NEW BUSINESS:
SET WORK SESSION TO REVIEW PROPERTY CARDS: The Board of Selectmen set a Workshop Meeting for Monday, May 7th at 5:00 pm to review the property cards.
EMERGENCY MANAGEMENT GRANT: Richard Hurlburt, Emergency Management Director, requested that the Board of Selectmen sign the agreement for an Emergency Management Grant that will require matching funds.
Mr. Sawyer moved that the Chairman be authorized to sign the Emergency Management Grant document. Seconded by Mr. Aldrich. All in favor, so voted.
MUTUAL AID AGREEMENT FOR PUBLIC SERVICE – BELLOWS FALLS: Mr. Sawyer moved that the Board of Selectmen sign the Mutual Aid Agreement for Public Service between the Village of Bellows Falls and Town of Walpole. Seconded by Mr. Aldrich. All in favor, so voted.
ROYAL GLASS & SECURITY – COUNTRYSIDE LOCK AND ALARM: Mr. Sawyer moved to change the Town Hall security from Royal Glass & Security to Countryside Lock and Alarm. Seconded by Mr. Miller. All in favor, so voted.
TOWN HALL CHAIRS AND TABLES: Mr. Aldrich said it was brought to his attention that the Town Hall is in need of some new chairs and tables. There was discussion relative to having 6-foot tables so they will fit in the elevator. There was a consensus to explore costs.
HEALTH INSURANCE: The Board of Selectmen discussed an issue involving a duplication of health insurance for an employee and his spouse. Before making a decision the Board of Selectmen will request a copy of the spouse’s Personnel Policy.
TRANSFER STATION: A memo from Rick Cooper pertaining to employees was received and reviewed.
PUBLIC BUSINESS (Continued):
DAVID BEAUDREAU: Mr. Beaudreau purchased the property at 24 North River Road. It is in the process of being cleaned-up. He is working with the Fire Chief so some fire training can be done on the property until June 3rd. He discussed his plans to re-build.
Board of Selectmen Meeting – May 3, 2007 – Page 7
LETTERS TO SIGN:
BARKLEY BULL: Mr. Sawyer moved to sign the letter to Barkley Bull regarding the Town Common. Seconded by Mr. Aldrich. All in favor, so voted.
Mr. Sawyer moved to adjourn the Board of Selectmen’s meeting and to enter into a Trustees of Hooper Trust meeting. Seconded by Mr. Aldrich. All in favor, so voted. The time was 10:24 pm.
TRUSTEES OF HOOPER TRUST
Dead Trees: A request was received from the Hooper Trust to take down some dead trees. There was a consensus of the Board of Selectmen to do a site visit after the leaves come out before making a decision.
Approve Bills:
Mr. Aldrich moved to approve payment of the bill from Brendan Honey in the amount of $5,854.18 for work done on the Hooper Mansion. Seconded by Mr. Sawyer. All in favor, so voted.
Mr. Aldrich moved to approve payment of the bill from E.E. Houghton Company in the amount of $410.24 for work done at the Hooper Institute. Seconded by Mr. Sawyer. All in favor, so voted.
Mr. Aldrich moved to approve payment of the bill from E.E. Houghton Company in the amount of $103.00 for work done at the Hooper Mansion. Seconded by Mr. Sawyer. All in favor, so voted.
Mr. Aldrich moved to approve having the security for the three Town facilities – Town Hall, Hooper Mansion and Hooper Institute - changed over to Countryside Lock and Alarm as soon as contracts are received. Seconded by Mr. Sawyer. All in favor, so voted.
Mr. Sawyer moved to adjourn the Trustees of Hooper Trust meeting. Seconded by Mr. Aldrich. All in favor, so voted. The time was 10:36 P.M.
Respectfully submitted,
Regina Borden, Recording Secretary