Westmoreland Planning Board
Public Hearing Minutes
Applications have been submitted by Cersosimo
Industries for a Special Exception of Article 501D, Table 505 #1 of the
Westmoreland Zoning Ordinance and for the expansion of the existing gravel pit
onto the adjacent property located on River Road, Map R1, lot 20, in the Rural
Residential District. As defined in RSA 155-E, the expansion is defined as a
new pit
UNAPPROVED
MINUTES
An audio recording of this hearing is
available on CD at the Town Hall.
Zoning Board of Adjustment Members present: Present: Chairman Peter Remy, Brian Merry, John Burt, Barry Shonbeck, Nancy Ranson.
Planning Board Members present: Chairman Lauren Bressett, Laurie Burt, Jim Starkey, Nancy Zeller, Russ Kotfila, Jim Ranson.
Town Attorney: Sam Bradley
Excused absence: Bruce Smith and Bob Harcke
Members of the public were present.
Planning Board Chairman, Lauren Bressett called the hearing
to order at
(Note that each Board addressed housekeeping items prior to the beginning of the hearing)
The Zoning Board
voted unanimously to accept the minutes for the hearing of
Planning Board-Minutes
of
Lauren confirmed that correspondence had been received from Selena Gallen, the Conservation Committee and S.W.R.P.
Chairman Bressett called the joint hearing together at
**Note: to provide the
public with minutes of the entire hearing, unapproved Zoning Board minutes have
been cut and pasted into this document. Amendments will be made as necessary
after being voted on at the next regular meeting of the Zoning Board. (LAI)
Chairman Remy began the Zoning Board hearing by explaining that the previous meeting had ended in a continuance when the Board discovered that there had not been proper notification of The Town of Chesterfield and the Southwest Region Planning Commission which was necessary because of the regional impact of the Cersosimo proposal. Thus he would start the present hearing by formally ending the previous meeting and begin a new hearing.
The first order of business was to review the Cersosimo
application. Mr. Remy reminded the Board
that Cersosimo Industries had applied for a special Exception to permit them to
operate a ‘quarry’ on their property in a rural Residential Zone. The Zoning Ordinance allows this use by
special Exception in Table
This brings into question the definition of a quarry and how it relates to sand and gravel.
Mr. Remy consulted Webster’s dictionary which says that a quarry is “a place where stones are hewn for building; a place where they are squared; a place where stone or slate is excavated by cutting for building purposes, etc.; and it is open to the light and differs from a mine.” Sand and gravel were not mentioned. The Wikipedia definition of ‘quarry’ says it ‘is an open mine from which rock and minerals are extracted. It is generally used for extracting building materials such as dimensional stone, construction aggregate, rip-rap, sand and gravel.
The Westmoreland Zoning Ordinances section on General Regulations. Section 441, addresses the ‘extraction of sand and gravel’, and says that in accordance with Chapter 155E, in any district the removal of sand and gravel for sale, except when incidental to the construction of a building on the same premises, shall be permitted only upon approval of the plan for rehabilitation of the site by the Planning Board. In any district the following provision shall apply,” and it goes on to explain that the application has to meet the requirements of 155-E which is what the Planning Board hearing is set to do.
Chairman Remy says the Board must first consider the definition of ‘quarry’, and then, whether the words of Section 441, ‘in any district’, would take precedence over Table 505 which says a quarry needs a Special Exception.
Barry Shonbeck opened the discussion. He interpreted the phrase, ‘in any district’, as not giving carte blanche permission for sand and gravel excavations but rather that the districts in which they are permitted must comply with the conditions of RSA 155-E.
Brian Merry inquired whether Table 502 is applicable, which permits sand and gravel permission by Special Exception. Chairman Remy clarified that Table 502 is for a different zone than the one in which the Cersosimo property is located.
Nancy Ranson inquired whether the wording of the application could be changed to specifically mention sand and gravel. Chairman Remy clarified that the Rural Residential Zone Special Exception Table only uses the term ‘quarry’.
Pam Martens of River Road offered a Point of Information. If the Commercial/Industrial zone is the least restrictive zone, and it would require a Special Exception for a gravel pit, then certainly a more restrictive zone, ie. Rural Residential would need a Special Exception.
Brian Merry pointed out that if the definition of a gravel pit does not meet the definition of a quarry, Cersosimo could not apply for a Special Exception.
Chairman Remy said that is one issue, the definition of ‘quarry’, and the other issue is the interpretation of Section 441.
Pam Martens offered to provide another Point of Information which, upon advice of Attorney Bradley, the Board was not prepared to hear at that time.
Barry Shonbeck inquired whether the state offered any definitions. Chairman Remy read from the state statute that, “Quarry means an excavation in bedrock, open to the surface; excavation for the purpose of removal of rock, minerals, or metallic ores.”
Attorney Joseph Hoppock of
Mr. Merry asked if the Chairman was looking for a motion to determine which definition the Zoning Board should use. Mr. Shonbeck inquired whether the Board might have some guidance from Attorney Bradley about how much leeway the board had in interpreting the definitions.
Attorney Bradley said that it was up to the ZBA to interpret its own ordinances. The issue was whether a gravel pit was permitted by Special Exception in the Rural Residential zone; that the chairman had pointed out the anomalies in the ordinances and the Board must interpret them. Is it permitted or not? If it is a permitted use there is the issue of RSA 155 E, whether it is an existing or abandoned excavation. If it is not a permitted use in that zone, in his opinion they [Cersosimo] would have to start over. On the new piece they would need a Variance. On the old piece they would have to establish that it is an existing excavation or the opponents would have to establish that it is an abandoned excavation. But the question of abandonment does not even come up if it’s permitted by Special Exception because it becomes moot.
Mr. Shonbeck tried to get at the original intent of the
people who drafted the ordinances. He
thought that when the lists [of Special Exceptions] were drafted they said,
“We’ve already got these things in this zone and they permitted them. There was already a quarry in the
Chairman Remy recalled that when he worked for Arthur Whitcomb the term ‘quarry’ was used across the board, including for sand and gravel.
Attorney Hoppock commented that the Wikipedia definition would not be acceptable and, in his opinion, the Board was legally obliged to use the state definition for ‘quarry’ and since there was no bedrock in the Cersosimo operation, it could not qualify as a quarry.
Attorney Bradley disagreed with Attorney Hoppock and said the Board could use whichever definition they wanted to use.
Mr. Merry asked for
the state definition to be reread , which the chairman did, and Mr. Merry moved
that the Board accept the state’s definition of ‘quarry’. Mr. Burt seconded the motion and all voted in
favor.
Chairman Remy moved on to the question of Section 441 of the ordinance, which he reread.
The Westmoreland Zoning Ordinances section on General Regulations. Section 441, addresses the ‘extraction of sand and gravel’, and says that in accordance with Chapter 155E, in any district the removal of sand and gravel for sale, except when incidental to the construction of a building on the same premises, shall be permitted only upon approval of the plan for rehabilitation of the site by the Planning Board. In any district the following provision shall apply,” and it goes on to explain that the application has to meet the requirements of 155-E which is what the Planning Board hearing is set to do. He asked how they should interpret the words, ‘in any district’. Did it mean the extraction of soil and gravel is allowed in any district?
Mr. Merry said that the Cersosimo property is in a Rural Residential district which allows quarries. Was the Chairman asking if the Board should allow quarries in any district? The Chairman said that he was asking the board to interpret Section 441.
Mr. Shonbeck remarked that he did not know of any regulation that trumps another; that the Board has always lived by the lists [of Special Exceptions]. He had to believe that the intent was not to give a general approval of removing sand and gravel from any district, but rather that if you are removing sand and gravel you must comply with 155E.
Ms. Ranson commented that a quarry is much more onerous than a gravel pit. If they would allow a quarry, why would they not allow a gravel pit?
Resident Pam Martens said the state has a handbook, The Law of Earth Excavations, which says that there is a list of prohibited projects which the public could nullify in any part of the town.
Former owner of the existing gravel pit, Stubb Thomas, commented that no matter what you call it, it’s all the same. The gravel pit had been there since the 1930’s. He believes that if it was started prior to 1979, it doesn’t even need a permit. The only reason he came to the Board when he bought it was to get started off on the right foot with the towns. And now someone seems to want to tip the cart over.
Attorney Hoppock commented that Mr. Shonbeck was correct in his interpretation of Section 441. It is in the General Requirements. The Board appears to be giving priority of something more specific over something more general. There are two things in 441 that are general; RSA 155 E and the phrase ‘in any district’ which cannot be used in isolation. The gist of Section 441 is what is to be done to reclaim the land.
,
Chairman Remy asked
for a motion. Mr. Shonbeck made a motion
that the removal of soil, sand, or gravel under section 441 was not intended to
mean that it is generally allowed in all districts but that it be interpreted
to mean if it is allowed, in those districts where it is allowed by
[Special Exception] lists, it must meet the criteria following the definition.
Nancy Ranson seconded
the motion.
Chairman Remy, Brian Merry and Nancy Ranson opposed the motion.
Chairman Remy asked for the motion to read aloud again. The clerk read the motion and Mr. Shonbeck restated his interpretation. Chairman Remy explained that if the motion were voted down, Cersosimo industries would not need a Special Exception to continue into the second lot. They could do it by the sheer fact of Section 441.
Mr Shonbeck pointed out that if 441 was not interpreted according to his motion, in the future anyone could have a sand and gravel pit in any of the town’s districts.
Mr. Burt asked for further clarification.
Mr. Shonbeck said, ‘If there is a table that says you can do soil, sand, or gravel removal, that shall only be allowed if they follow RSA 155 E. In my mind that just outlines the conditions for granting a Special Exception in those districts where it is listed. This [complying with RSA 155 E] is a further burden on those who are granted a Special Exception..
Others interpret [Section 441] to mean in any district you can do these things [removal of soil, sand, or gravel], which contradicts the lists we have.
Mr Merry: Are you saying they wouldn’t need a Special Exception?
Chairman Remy: Correct. It would be a moot point. Section 441 says it is allowed.
Mr. Merry to Mr. Shonbeck: So you are saying that you want excavation only in those areas where it is already listed.
Mr. Shonbeck: Exactly. The lists are the only precedents.
Mr. Merry: So the only districts would be 502 and 505.
Mr. Shonbeck: Yes, without changing it in March.
Planning Board Chairman Bresset offered a clarification of Mr. Shonbeck’s position. She said that the Planning Board allows residential except in Commercial/Industrial and where it is by Special Exception, so you could also interpret it as 441 saying it’s allowed but in Commercial/ Industrial it needs to be Special Exception because there might be other parameters.
Mr. Merry: Even if 441 was to remain as stated, in any district, it will still have to fulfill all these conditions about reclaiming?
Chairman Remy: Yes, and that is what they [Cersosimo] are prepared to do.
Chairman Remy: I just want us to understand what the motion is because it is rather important. Please read it again, Jackie.
“Section 441 does not allow the removal of soil, sand, and gravel in all districts but rather imposes an extra burden when you do remove gravel in the districts where it is allowed by Special Exception.”
Chairman Remy: I want to make sure everybody is clear and
would like to put it to a vote again.
Mr. Shonbeck voted in
support of the motion.
All other members
voted against. The motion did not pass,
four against and one in favor.
Chairman Remy: That said there is no Special Exception required.
(end of unapproved Zoning Board minutes)
Chairman Bresset stated that due to the Zoning Board’s determination that a Special Exception is not necessary; the joint hearing would now be a hearing for the Planning Board alone.
The Planning Board Hearing began at
Note: The application had been accepted with conditions at
the Planning Board meeting on
Andrew Geffert, representing Cersosimo Industries presented an aerial photo showing the pit. He pointed out the existing pit and the proposed pit. He addressed concerns that had been raised previously including the pits hours of operation, pit visibility from River Road, the existing bond will be increased to $22,000, ownership history of the pit, grandfathering history of the pit, reclamation time table, impact on property values, certified engineer stamp not needed, Pam Wallis water line, noise and dust abatement.
Board Questions:
Jim Starkey asked how the new Bond figure was determined. Mr. Geffert stated that he compared the area needing reclamation to the exposed acreage now which is essentially the same and increased the exposed acreage value by the 47% proposed increase in exposure and inflated it using 2009 dollars. Lauren asked what the cost to Cersosimo would be to carry out the reclamation on the Westmoreland side. Mr. Geffert stated that the cost would depend on how it would happen. An estimate for the entire project would be difficult to determine. Mr. Jeff Morris, V.P. and General Manager of Cersosimo Industries stated that the reclamation would be ongoing using the man and material on site cost and with the exception of the cost of grass seed the actual cost of reclamation would be next to nothing. Jim Starkey asked for clarification on the bond process. Lauren stated that the bond is in place to protect the Town if Cersosimo did not do reclamation and another firm was needed. Additional discussion ensued revolving around the purpose and workings of the bond. Lauren stated that she feels that the Board needs additional information and that we should hire someone to review the reclamation plan. Mr. Bradley suggested the board listen to public comment before making further requests.
Lauren then opened the hearing to public comment.
Public in favor,
abutters first:
Manuel Bosch- commented about reclamation and water flow. He
spoke favorably of the Cersosimo operation.
He noted that on
Public opposed,
abutters first:
Joyce Daniels stated that she is concerned with the water
runoff and the shifting of the soil on her property. Mr. Theodore Gewanter stated that he is not
opposed to the pit as it stands now but is opposed to the expansion or new pit
which would result in increased activity.
He feels it goes against our rural character. He suggested that due the pits location, most
people, other than abutters, are not concerned. Rebecca Todd (
Those neither in
favor or apposed:
Jon McKeon, representing the Chesterfield Board of Selectman
and Planning Board. Mr. McKeon stated that the Board of Selectman has no
opinion in this matter but he wanted to share some information so that
Westmoreland would have what Chesterfield
has, specifically relating to the water runoff that would be coming into
Chesterfield.
Lauren stated that the Board received a written response from Southwest Regional Planning Commission (The complete statement is located in the permanent minutes file and permanent application file), and they offered the following: That the use of native species for landscaping material be used during reclamation, that the roadway adjacent to the site be kept free of material being tracked onto the public road, Best Management Practices should be used throughout the operation. No maintenance, refueling, or washing of vehicles should be permitted on the site, exposed areas should be kept to a minimum and seeded when the area is not immediately scheduled for excavation and that the town be provided a contact person who will be responsible for inspecting the silt fences, sediment ponds and other erosion control methods on a weekly basis and after heavy rain events and records of those inspections be maintained. Pam Martens questioned if they said no fuel be kept on the site and Lauren responded that it was included under the Best Management Practices. Attorney Bradley clarified the State Statute. In addition, written response was received from the Conservation Commission. (The complete statement is located in the permanent minutes file and permanent application file) Issues under their purview were water quality, soil contamination and erosion. The Westmoreland Conservation Commission recommended the following: Provide periodic progress reports for activity at the pit, provide for periodic unannounced inspections of the site for Town officials and/or their representatives, follow NH Best Management Practices in the fueling and maintenance of equipment, inform town officials when the expansion work begins so that it can be periodically reviewed, notify town officials of any plan modifications, be more specific with a restoration plan including a timeline, and contact town officials when restoration and reclamation begin.
Clarification by applicant:
Andrew
Geffert responded to comments from the public. It is their intention to reclaim
as they extract material. The timing of the reclamation depends on demand and
that reclamation will follow state guidelines. He responded to Mr. Gerwanters
comment about out of site out of mind, stating that the pit is not seen from
the
Additional Comments:
Attorney
Bradley offered the following advice:
The Board should hire an expert who can review the reclamation plan and be
familiar with the cost of reclamation for the bond, the cost to be paid for by
the applicant. Request a drainage plan be submitted to
Lauren requested clarification pertaining to Laurie Schreier comments about the impact of a 42% expansion of the pit. Mr. Morris reiterated that what happens in the pit is dependent on product sales and that Cersosimo will create a projected timetable and the needed reclamation plan. Lauren clarified what the Board would be looking for. Laurie Schreier stated that she is a bit surprised that Cersosimo would excavate land if they do not know what material is there and felt that the Town would be permitting an increase in traffic. Mr. Geffert stated that they do not anticipate finding different materials than the type of gravel and sand that is currently being excavated. Pam Martens wanted to clarify that the carcinogens are created from the sandblasting, drilling, and crushing of stone and the fine particulates that are aerosoled into the air not the gravel roads. It is unique to sandblasting and splitting of rock. Lauren offered a point of clarification stating that there is no blasting being considered. Mrs. Martens stated that they are creating dust plumes.
Jim
Starkey asked if Cersosimo objects to the hiring of experts to review the
reclamation plan and bond. Mr. Morris
stated that they do not object to the hiring of an expert consultant but would
like to put some limitations on the expense. He indicated that it is something
they have had to do in the past. Mr.
Hoppock inquired about the truck limits imposed by
Jim Starkey questioned the time line that the Board has to work with either to accept the proposal or deny it. Lauren indicated that the Board would need to vote at the February meeting; however, the Board can ask the applicant for an extension. Mr. Morris indicated that they are willing to work with the town to move the process along.
Lauren stated that she would like to see the following provided; better information on the determination of the bond level, a reclamation plan that meets paragraph 155 E:3 VI to include a timetable, drainage information and a traffic plan. Some additional discussion ensued revolving around drainage requirements.
Pam Marten wanted to clarify what the state regulates with regards to their Alteration of Terrain Permit. She read: The permit is a technical permit to protect water quality and does not address other impacts which tend to be of concern to local citizens such as aesthetics, noise, dust, etc. These types of issues are addressed at the local level, usually by the Planning Board under authority granted by RSA 155-E. (The complete statement is located in the permanent minutes file and permanent application file.)
Jim Starkey moved to continue the public hearing at the next regular meeting of the Planning Board to be held at the Westmoreland Town Hall, February 9, 2010 at 7:00PM to allow time for the applicant to provide the following information: 1. Detailed Reclamation Plan 2. Traffic Plan, 3. Bond level 4. Allowing Westmoreland time to hire a professional consultant. Russ K. seconded the motion. All Board members voted in favor. Motion carried.
Hearing
adjourned at
Respectfully submitted,
Lori-Anne Ingram
Secretary
(UNAPPROVED MINUTES)
See attached document list
Cersosimo Industries
Support Documents for Joint Hearing
·
1-Audio
recording representing entire meeting.
·
·
Letter
of Continuation dtd
·
Powers
& Assoc. Study dtd 112-14-09 provided by
·
Letter
from S.W.R.P. dtd
·
Westmoreland
Conservation Comm. Recommendation letter dtd
·
Letter
from Atty. Hoppock- request for information dtd
·
Pamela
Wallis property deed- provided by Atty. Hoppock
·
NH
Notice of Intent to Excavate Earth dtd 04/1998 – 03/1999
·
NH
Report of Excevated Material dtd 04/1998 – 03/1999
·
NH
Notice of Intent to Excavate Earth dtd 04/1999 – 03/2000
·
NH
Report of Excevated Material dtd 4/1999 – 03/2000
·
Testimony
from Pamela Martens dtd
·
Fax
copy letter from Joseph Perrini dtd
·
Fax
copy of Pamela Wallis testimony dtd
·
Fax
copy of statement from Dennis Swartout dtd
·
Statement
from Selena Gallen dtd
·
Fax
copy of statement from Samantha Shad dtd
·
RSA
155-E The Law Governing Earth Excavations provided by Pam Martens
·
1
page from the N.H.D.E.S. website dtd
·
1
air photo overlay of the River Road Gravel Pit provided by Andrew Geffert
**due
to the size of the file, supporting documents are located in the Planning Board
file cabinet in a file folder labeled – Cersosimo Joint Hearing documents
1-27-10-lai