ZONING BOARD OF ADJUSTMENT

Walpole, NH  03608

Minutes-----5 December 2007

Special Meeting

Motion for Rehearing

In re: Grant of Special Exception of Chamberlain Machine, Inc.

PRESENT:            M. Mansouri, Ch., J. Galloway-Leclerc, L. Carignan, L. Britton, L. Weber, B. Webb, (alt.) MT. Lester, (alt.) P. Pschirrer, (alt.)

ABSENT: D. Calhoun (alt.)

Note:  These minutes are unapproved and will be reviewed on 19 December 2007 for errors, omissions and corrections.

  The meeting was called to order at 7:30 pm.   Ms. Mansouri stated this is a Public Meeting, it is not a rehearing.  There will be discussion among the Board members but there will be no comment from the audience.  The public can be heard if the Board votes to hold a rehearing.  The Board received a Request for Rehearing from Attorney Todd, representing a group of residents.  The Board also has the minutes of the October meeting at which the special exception was granted.  The Board has also received the memo of Attorney Kinyon, representing Chamberlain Machine, Inc., opposing the grant of a rehearing.

  Ms. Mansouri stated that one of the papers attached to Atty. Todd’s submission was a copy of the Water Source Protection Delineation.  Ms. Mansouri said that the submission was not an accurate copy of what was actually adopted.  Ms. Mansouri passed around a copy of the delineation of the Protection Delineation as passed by the Town on March 9, 2004.  While the Board members were examining the copy brought by Ms. Mansouri, Ms. Weber apologized for any confusion generated by the notice for the meeting.  Because of time constraints in getting out the notice, and based on a phone conversation with Ms. Mansouri relaying Attorney Hockensmith’s opinion that notice should be given just as if this were a new proceeding, notice of the meeting stated it was to be a public hearing, rather than a public meeting.

  At Mr. Britton’s suggestion, Ms. Mansouri read the letter from Atty. Todd dated November 15, 2007 submitted with the rehearing request, and the letter from Atty. Kinyon dated December 4, 2007 submitted with Chamberlain Machine’s response.  Ms. Mansouri then asked the Board members if they wanted to go down through the points in the request for rehearing.

  Ms. Weber said that she understood from the Handbook for Zoning Officials that the Board has the option to discuss the points in the submission or to vote to grant or deny the request without discussion.  She said she personally favors discussion.  She then addressed each numbered paragraph in the request for rehearing, reading or summarizing portions of each for the benefit of audience members.

  Paragraph 1 is a factual statement about Chamberlain Machine’s operation and proposed use. Paragraph 2 sets out the plaintiffs, and their interests in this matter.  Paragraph 3 quoted from the Walpole Zoning Ordinance about the purpose of the Rural/Agricultural District. Paragraph 4 sets out the provisions in the Zoning Ordinance with regard to the requirements for a special exception.  Ms. Weber noted these paragraphs are the foundation of how we got here. 

  Paragraph 5 states that Chamberlain did not meet its burdenof proof with respect to the special exception, and refers specifically to the requirement of consistency with the Master Plan.  Ms. Weber stated her understanding that the Board had relied on the recommendation of the Planning Board as presented to the ZBA on the issue of consistency with the Master Plan.  She said that this issue was particularly within the expertise of the Planning Board.  With respect to the assertion that Chamberlain did not prove that its use would not impact the rural and agricultural uses of the area, it was her understanding that the Board had considered that the parcel in question is already occupied by several industrial-type buildings, formerly used for research on chickens, that render it unsuitable for agriculture.

  Paragraph 6 states the ZBA failed to consider adequately the Well Source Protection Ordinance.  Ms. Weber said the Well Source Protection Ordinance provides for a separate hearing before the Planning Board specifically on the issues of well source protection.  It is her opinion that that hearing is the proper forum in which to raise these issues.  Paragraph 7 quotes the Source Protection Ordinance on the creation of the River Well Source Protection District.  Paragraph 8 quoted the source Protection Ordinance language on the prohibition of toxic substances.  Paragraph 9 argues that the Source Protection Ordinance prohibits all activities involving hazardous or toxic materials. Again, the Source Protection Ordinance is a matter for review by the Planning Board.

  Paragraph 11 argues that the presence of hazardous or toxic materials increases the long-term susceptibility of the aquifer to potential pollutants.  It further expresses the concern regarding unknown future owners of the property.  Ms. Weber noted that a special exception is granted for a particular use, and any change to the use requires a new review of the proposed changes.  Paragraph 12 sets out the history of the USGS and NH DES report on aquifers and concludes the Town of Walpole has an extraordinarily valuable and vulnerable resource that it should protect. 

  Paragraph 13 noted the failure in 2007 of a Town Warrant Article which would have rezoned a 43 acre parcel in the area as Industrial.  Paragraph 14 states that the grant of the special exception by the ZBA was contrary to the will of the voters as expressed at Town meeting.  With respect to both these paragraphs, Ms. Weber stated that the Board has to follow the standards set out in the Zoning Ordinance for a special exception.  Those standards are still part of the Ordinance, and the Board has to follow them.  Mr. Britton said that he had voted against the 43 acre rezoning because he was not in favor of having 43 acres open to all kinds of industry, heavy or light.  He is for this proposal, and thinks it is okay to review each case on a case-by case basis, as required by the special exception procedure.  Ms. Mansouri said she had opposed the 43 acre rezoning as she considered it spot zoning, which she opposes.  She is for using the special exception process.

  Paragraph 15 sets out the testimony the plaintiffs would provide at a rehearing.  Ms. Weber said it was her understanding that to grant a rehearing, there had to be new facts not ascertainable at the original hearing or mistakes of law made at the original hearing. The proposed evidence is about matters which could have been raised at the original hearing, and she is concerned that the Board would be vulnerable to a challenge by Chamberlain were it to allow the petitioners to have a second opportunity to raise matters which could have been raised at the original hearing. Ms. Weber said she was opposed to granting a rehearing.  Mr. Britton said he agreed with Ms. Weber.  Ms. Lester said that the attorney for Chamberlain had brought in testimony, it had been challenged and discussed and a reasonable judgment had been made.

  Mr. Webb said he couldn’t add anything to what had been said.  Mr. Carignan and Ms. Galloway-Leclerc agreed.  Ms. Mansouri said she believed the Board considered what was needed for a special exception.  Mr. Britton moved not to grant the rehearing.  Mr. Carignan seconded the motion.  All five regular Board members voted in favor of denying a rehearing.

  Ms. Mansouri adjourned the hearing at 7:50 pm.

Respectfully submitted,

Lucy Weber,

Secretary.