Westmoreland Zoning Board of Adjustment
Unapproved Minutes of Joint Public Hearing
An audio recording of this hearing is available on DVD
at the Town Hall.
Present: Chairman
Peter Remy, Brian Merry, John Burt, Barry Shonbeck,
Nancy Ranson . Town attorney, Sam
Bradley of
On Wednesday, January 27, 2010, beginning at 7:30pm in the
Town Hall, the Westmoreland Zoning Board of Adjustment and the Planning Board
held a joint public hearing to consider the applications 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 AND for changes to the final grade of parcel
R1, Lot 19, in the Rural Residential District with some of the eastern portion
of the property in the Forest District.
Planning Board Chairman, Lauren Bresset,
called the meeting to order and the Planning Board and the Zoning Board
conferred separately to review the minutes of their previous meetings.
The Zoning Board
voted unanimously to accept the minutes for the hearing of December 23, 2010.
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 it’s 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.
At this point Chairman Bresset began the Planning Board hearing.
Respectfully submitted,
Jacqueline Cleary, Zoning Board clerk