Westmoreland
Selectmen's Minutes
July
17, 2008
PRESENT:
Dave Putnam, Marjorie Merena, Russ Austin, Bob
Moore, Gary Hudson, Gary Smith, Cynthia Atwood,
Mike Hartness, Andrew Geffert
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Dave Putnam called the meeting to order at 7:00pm.
PUBLIC BUSINESS:
Gary Smith-regarding June 25th Public Meeting
The findings of the public meeting were
discussed. Road Agent Gary Hudson answered
questions to the satisfaction of all concerned.
Cynthia Atwood was assured that any work
affecting her driveways would result in the
driveways' return to their original condition
(repaved, etc.). Cynthia will also be advised,
beforehand, of any trees on her property being
removed and that nothing on her property will be
disturbed if not necessary. Care will be given to
maintaining the integrity of the road.
Dave made a motion to approve the
proposal from Gary Smith to upgrade 760', more or
less, of
V. The road upgrade will be done to Town
specifications and will begin at Cynthia Atwood's
driveway, continue 260' to Gary Smith's property
line then 500'. Russ seconded the motion. The
motion passed unanimously.
A letter with exact footage will be sent
to the Road Agent and to Gary Smith. When the
upgrade is completed to the satisfaction of Town,
a letter will go to the Road Agent and to Gary
Smith in that regard.
Gary Hudson spoke with us about 3 issues:
1. Letter from Patrick Baker -
continue to follow all state laws pertaining to
road widths.
2. Bridge replacement on
- Gary hopes to start this work shortly.
It will involve closing the road for a few days.
3,
see when the Town might expect the check covering
last year's
bridge work on the
Mike Hartness explained the Household
Hazardous Waste program. The HHW fiscal year
begins June 30. The schedule provided on the
Summer 2008 and Fall/Winter 2009 . This was not
accurate. Westmoreland will not be participating
in the program however residents can take their
hazardous household waste to
designated days and pay a small fee for disposing
of it. The Town received a bill for $625 for the
7 days of the Spring collection. About 20
Westmorelanders participated.
Andrew Geffert from SVE came with some
procedural questions on the Cersosimo Gravel Pit
issue presently before the Planning Board. The
Selectmen advised him that the Planning Board
should be allowed to make their decision before
anything else is done.
George Laine voiced concern for the
propane tank at the side of Town Hall not being
"plumb" due to erosion from the severe rain. The
Road Agent will see to its repair.
ACCOUNTS PAYABLE:
Russ motioned to accept the manifest in the
amount of $106,223.22. Marjorie seconded the
motion. All in favor so voted.
There was some discussion about how to pay the
bill ($5426.61) for the repair of Tanker One. It
was decided that $2500 would come from the Fire
Department budget and the remainder would come
from the Town budget.
SELECTMEN'S MINUTES:
Marjorie motioned to accept the minutes of
3, 2008
so voted.
NEW BUSINESS:
A letter from Pam Martens (dated
was received in the Selectmen's Office on July14,
2008. The letter was discussed at tonight's
meeting and is included in its entirety below:
July 11, 2008
To: Selectpersons, Town of Westmoreland
From: Pam Martens
Cc: Lauren Bressett, Chair, Westmoreland Planning
Board
Peter Remy, Chair, Westmoreland Zoning Board
Marshall Patmos,
Chair, Westmoreland Conservation Commission
Re: Cersosimo Industries Site Plan Review
I hold the utmost regard for those dedicated
public servants who tirelessly serve our town as
volunteers or quasi volunteers, taking time from
their families and leisure activities to keep our
town functioning.
When, however, a systemic failure in public
service procedure occurs, good citizenship
requires determined action.
I write regarding the Cersosimo Industries matter
currently before the Town of
Planning Board
following substantive irregularities in the site
plan review, with the aid of legal counsel if
necessary. In the statutory area of open access,
you also have the Right To Know Oversight
Commission established by the legislature through
2010. ("Procedural defects shall result in the
reversal of a planning board's actions by
judicial action only when such defects create
serious impairment of opportunity for notice and
participation.") (RSA 676:4(4) )
Moreover, I am formally requesting that you
include the following summary of my letter in the
Selectmen's minutes: "Letter from Pam Martens
pertaining to procedural deficiencies in Planning
Board Review of Cersosimo Gravel Pit Expansion."
A. The Hearing of June 10, 2008 Was Procedurally
Flawed in Numerous Respects and Reached An
Arbitrary and Capricious Conclusion
Under Town of Westmoreland Rules of Procedure
for the Planning Board in the section pertaining
to Public Hearings, it states: "The Chairman
shall call the hearing in session, identify the
applicant or agent and ask for the Secretary's
report on the proposal. The Secretary shall read
the application and report on the manner in which
public and personal notice was given."
Page Two
At the
not present and no public reading of the
application occurred. It is the publicly stated
view of the chairperson of the Planning Board
(per the hearing on
rule means that the Secretary will read the
application silently to herself in all public
hearings. Contrary to this illogical position
for a public hearing, RSA 676:17 states that
"Each local land use board shall hold its
meetings and maintain its records in accordance
with RSA 91-A" which further requires that
"Openness in the conduct of public business is
essential to a democratic society. The purpose of
this chapter is to ensure both the greatest
possible public access to the actions,
discussions and records of all public bodies, and
their accountability to the people."
The "greatest possible public access" would
require that the Secretary or a designated
substitute read the application aloud, not to
herself, since many members of the public have
not had the ability to read the application
beforehand and no copies were handed out at the
hearing, leaving residents at the hearing in the
dark about its contents.
Had RSA 91-A been followed in both letter and
spirit, abutters and residents would have heard
the following language read on page two of the
application:
"One area where the plan does not meet zoning is
the lower proposed pond on the north end of the
site. Current zoning requires 200' between
excavation and the property line. This setback
is maintained for the most of the parcel.
However, in order to get water to flow down hill,
the lower pond had to be moved down the slope
towards the west. There will still be a 50'
setback between the excavated pond and the
property line. Currently, this north end of the
neighboring property (Howe) is forested, which
means that this will not impact the existing
house or other structures."
At no time during the
the applicant reveal that he was seeking to
reduce a Westmoreland Zoning Ordinance from 200'
to 50'. Even more disturbing, at no time during
this hearing did any one on the Planning Board
bring up this issue.
The result was the following: sitting in the
10, 2008
abutting Howe property, Pam Wallace, who had
never been advised that Cersosimo was proposing
to shrink the required setback by 75%. She had
never been asked for a waiver; she was simply
left in the dark about the matter. Nor did the
other town residents who were present have the
opportunity to voice a protest concerning an
attempt to discard an important Westmoreland
Zoning Ordinance that reflected the will of the
people.
Page Three
Additionally, under both state and town statutes,
if the Cersosimo application was deemed
incomplete, it was to be rejected. Missing from
the application was the required data on water
tables; certainly an important matter in
protecting the public interest. Nevertheless,
the application was accepted as complete despite
this missing data.
The hearing was adjourned to July 8 to give the
Westmoreland Conservation Commission time to
review the application.
B. The Hearing of July 8, 2008 Was Procedurally Flawed in Numerous Respects
Perpetuating this peculiar silent treatment of
residents in the audience, the minutes of the
prior meeting on June 10, 2008 were announced to
be read by the Board among themselves, NOT aloud
to the audience. (As of
after the first hearing occurred, the minutes
were not on the Town's web site nor were they
posted on the Town Hall bulletin board nor were
they inside the building. (The Secretary to the
Selectpersons was gracious in tracking them down
and emailing a copy the same day that a request
was made by my husband who was pursuing another
matter.) Our town ordinance requires that the
minutes "shall be open to public inspection
within 144 hours of the public meetingS."
Between the June 10 and July 8 hearing, a member
of the Westmoreland Conservation Commission read
the Cersosimo application and discovered the
proposed reduction in the setback from 200' to
50'. This information was announced publicly at
the outset of the July 8 public hearing by Russ
Martens, secretary of the Conservation Commission.
The applicant, Michael Cersosimo, now stated his
position that he didn't seek a waiver from the
abutting property owner because he didn't believe
the setback for creating the pond required a
zoning variance because it wasn't really
"excavation" as contemplated by the Zoning
Ordinance.
This elicited a motion from the Board to refer
the matter to the Town's attorney to determine if
indeed the pond was "excavation" pertinent to the
Westmoreland excavation ordinance.
Page Four
Had the Planning Board carefully read the
Cersosimo application, had they referred to it
during this debate, it would have been evident
that the Cersosimo arguments were disingenuous,
at best, and something more problematic, at worst.
That is, the applicant had acknowledged in
writing in his application that he was aware that
the "One area where the plan does not meet zoning
is the lower proposed pondSCurrent zoning
requires 200' between excavation and the property
lineSThere will be a 50' setback between the
excavated pond and the property lineS."
In other words, the applicant had stated he knows
the plan does not meet zoning. He has stated the
pond is to be "excavated." But the Board does
not reprimand him for this double talk and,
instead, passes a motion to refer the matter to
the town attorney, presumably at taxpayer
expense, to determine what the meaning of
"excavation" is.
This untoward deference to a commercial interest
is underscored by the easily obtainable and
no-wiggle room New Hampshire State definitions of
excavation:
The Department of Revenue Administration of the
State of New Hampshire interprets "excavating" as
follows: (See
http://www.gencourt.state.nh.us/Rules/rev.html)
" 'Excavating' means extracting earth from its
state of natural repose by any method, such as
dredging, blasting, digging out and removing, or
forming a cavity or a hole in any land area. The
term includes excavate." (Rev. 501.04)
The
" 'Excavation' means a land area which is used,
or has been used, for the commercial taking of
earth, including all slopes." (RSA 155-E:1)
Page Five
Meanwhile, the property abutter, Pam Wallace, has
learned for the first time this evening that she
has lacked a full set of facts on which to
fashion a well-framed objection, or hire an
attorney, despite having taken an abutter's tour
of the property and attendance at the public
hearing of June 10, 2008. (In addition to the
setback issue, Ms. Wallace represented at the
June 10 hearing that she had deeded rights for
spring water pipes over the Cersosimo land at
issue. The Cersosimo representatives stated at
that meeting that no such deeded rights existed,
only to correct themselves at the subsequent
hearing.)
In summary, under the Town of
Plan Regulations
regulations is vested with the Selectmen." I,
therefore, formally request that you take the
following actions as soon as reasonably possible:
(1) Instruct the Secretary of the Planning Board
to read all applications aloud in all future
public hearings;
(2) Instruct the Secretary of the Planning Board
to read all minutes aloud in all future public
hearings and bring the minutes current on the
town website. The last minutes are six months
old;
(3) Instruct the Planning Board to stop placing
excessive reliance on verbal representations from
applicants and pay stringent heed to written
submissions;
(4) Reject incomplete applications as required by statute;
(5) Meticulously follow both the letter and the
spirit of our town and state statutes in the
future;
(6) If the Zoning Board has been remiss in any of
the above areas, send the same message their way;
(7) Because these flawed procedures are
apparently of long duration, appoint an unbiased
Community Planning/Zoning Oversight Board to
review past files for occurrences of zoning
violations or improper approvals.
Respectfully submitted,
Pam Martens
Note: These comments relate to procedural
matters. My objections to the Cersosimo plan
itself will be made in the appropriate forums.
After discussing Pam's letter, the Board agreed (unanimously) to the following:
1. To ask all Board members to arrange to
have their minutes open for public inspection not
more than 5 business days after their public
meeting (RSA 91-A:4). This is not to infer that
the minutes must appear on the Town's website. We
will, however, work toward getting the minutes of
all town meetings on the website as soon as
possible.
2. As of this date, the Board feels that
the Cersosimo Gravel Pit issue will eventually be
appropriately decided by the Planning Board. The
Zoning Board may, or may not, need to be involved
also.
3. The Board does not see a need for the
Conservation Committee to be involved at this
time. However, the Planning and/or Zoning Boards
may have questions for this committee and may ask
for its input.
4. The Board has confidence that both the
Planning and Zoning Boards will ultimately make
appropriate decisions for the citizens of
Westmoreland. Members will seek legal advice - as
they have done in the past - if they feel it is
indicated.
5. The Board sees no need to either
establish or to appoint "an unbiased Community
Planning/Zoning Oversight Board.
6. The Board definitely does not agree that "a
systemic failure in public service" has occurred
because of the actions of any board".
OLD BUSINESS:
Letter from Gary Smith regarding
Twin State Truck Service, Inc. invoice. Addressed above
Letter from George Malloy regarding down tree.
The letter stated that the tree will be removed
and thanks for our patience. Thank
you George.
Waste Management invoice - The Board is
requesting that WM reissue the invoice and
specify exactly what equipment is being sold to
the Town.
Letter from Attorney Bradley - Hatt vs. Town of
WARRANTS:
Mark Edgington -Timber Tax -R15,
LETTERS TO BE SIGNED:
PA-28 Inventory of Taxable Property form
for 2009: The Town will not be sending out this
form.
Marjorie made a motion to go into non-public session at
The non-public session ended at
Russ moved that the meeting adjourn at
Marjorie seconded the motion. All in favor so
voted.
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David Putnam, Chair
M. Merena for Tina Cutter, Secretary
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Marjorie Merena
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Russ Austin
THESE ARE UNAPPROVED MINUTES. ANY CORRECTIONS
WILL BE SHOWN IN THE SELECTMEN'S MINUTES OF