TOWN OF DERRY
Town Council Meeting July 14, 2009
Derry Municipal Center Tuesday 8:00 p.m.
GOALS SETTING WORKSHOP
Non-Public Session RSA 91A:3 II (a)
Staff present: Chief Garone, Frank Childs
Salute to Flag, Warning of Fire Exits, Handicap Access, Turn off all Cell Phones and Pagers
Roll Call: Councilors- Wetherbee, Fairbanks, Carney, Coyle, Chirichiello, Benson and
Chairman Metts.
Consent Agenda
09-99 Acceptance of Non-Public Minutes - June 16, 2009
09-100 Acceptance of Minutes - June 16, 2009
09-101 Schedule Public Hearing - August 11, 2009 - Beaver Lake
Sewer Betterment Assessment: Lots 56061 & 56064, 34¼ and
34½ North Shore Road
09-102 Schedule Public Hearing - August 11, 2009 - Amend the Code
of the Town of Derry - Article VI, Section 165-45.D.2, Medium High Density Residential,
Section 165-45.1.C.2, Medium High Density Residential District II, and Section 165-46.B.2, Medium
Density Residential, subparagraph “d”
09-103 Schedule Public Hearing - August 11, 2009 - Amend the Code
of the Town of Derry - Article VI, Section 165-45.D.2 Medium
High Density Residential District (MHDR), Section
165-45.1.C.2, Medium High Residential District II (MHDRII), and
Section 165-46.B.2, Medium Density Residential District (MDR),
to delete subparagraph “j” in its entirety
09-104 Schedule Public Hearing - August 11, 2009 - Amend the Code
of the Town of Derry - Article II, Section 165-5 Definitions - to
add Article XX, Livestock and add Sections 165-154 through
165-160, which contain the provisions of the Article
Consent agenda approved as written.
Chairman’s Report -
Charter Commission Elections --08/04/2009 will be held at Gilbert H. Hood School from 7 AM to 8 PM.
Construction of the bike path has begun.
Regional Economic Development Steering Committee, the Council needs to appoint two members and one alternate. Both Town Planner Sioras and Town Administrator Stenhouse have volunteered to serve on this committee, if appointed by council. Council also needs to appoint someone else as an alternate. . Mr. Stenhouse suggested the appointments could wait till August.
This will be agendized for the August 11, 2009 Meeting.
Chairman Metts has been invited to a meeting with Gov. Lynch on July 28, 2009 at the Derry Cooperative School District building. He is allowed to bring a guest and he would like counselors to e-mail him with any questions. He can provide the questions to Gov. Lynch.
Derry has lost one of its finest citizens, Bernie Resnick. He was involved in the Derry Rotary.
He was a mover and shaker for the monuments that have been put in town, and Marion Gerrish
Center.
Administrator’s Report –
- Town Administrator Stenhouse has also been invited to the meeting with Gov. Lynch. This meeting is a follow-up from the meeting held a few months ago.
- The town’s 2009 tax warrant collections are slightly better than they were in 2008. We are at 91% collection versus 90% for 2008.
Public Forum - Non Agenda Items
Motion to open the public forum 7-0-0.
Maureen Rose, Windham Rd - read a statement regarding a situation with Councilor Chirichiello and Councilor Benson and the apology. She stated, this is about, Town Councilors performing their elected duty without prejudice or malice.
Al Dimmock, High Street - Mr. Dimmock asked Councilor Benson to step down.
Art MacLean, Village Brook Lane - feels that this is a political vendetta against Councilor Benson and is beyond disturbing.
George Chaloux, Karen Ave. - Mr. Chaloux asked for removal of the councilors when the incident happened. However, it was referred to the Atty. General's office.
Joel Olbricht, Colony Brook Lane -Mr. Olbricht read articles from the Nutfield News regarding the DEDC and Councilor Fairbanks statements specifically regarding him. He feels her statements made in the article were a public defamation of his character and as a minimum she should apologize.
Mike Gill, Gill Road -- the Witch Hazel property at 146 A & B Warner Hill Rd has a stone foundation and children have been playing in this area, which is a liability to the town. He would like to schedule a public hearing to purchase 146 A & B Warner Hill Rd for a total of two dollars.
Chris Niland, Mundy Lane -- he has heard that Town Administrator Stenhouse is going to request a one-year extension on the Private Roads issue.
Motion to close the public forum 7-0-0.
Public Hearing
09-94 FY 2009 Justice Assistance Grant of $41,646
Chief Garone made a brief presentation: DOJ requires that prior to the expenditure of any funds associated with the JAG Award, a notice must be provided to the governing body and an opportunity provided for public review.
Motion to open Public Hearing
No input
Motion to Close the Public Hearing
Move that the Derry Town Council accept the FY2009 Justice Assistance Grant of $41,646. Motion by: Councilor Carney, Seconded by Councilor Benson Vote: 7-0-0
09-98 Proposal from East Derry Village Improvement Society relative
to the future use of the Upper Village Hall
Ken Gould & Paul Dionne - The Upper Village Hall has not been useful to the town for many years. EDVIS would like to save the Town demolition expense. The NH Preservation Alliance is willing to assist the EDVIS.
They are asking for consideration to purchase the Upper Village Hall for $1.00, provide a public annual report, and will meet with the Derry Town Council on an annual basis. By end of the 10 year period, the society will have in place a sustainable management plan. If at the end of the 10 yr period the society has not met the terms of this agreement, the town has the right to take possession of the building and any betterments and improvements made by the society.
Paul Dionne gave the outline of the business plan and explained the repairs necessary to bring the building back its original restoration.
Open Public Hearing 7-0-0
Rick Holmes, spoke on history of the building.
Mike Gill – supports a private entity relationship with the town owned property at 52 East Derry Rd. It is assessed at $ 511,900. EDVIS is a 501C none profit organization. He gave a report on his findings of information regarding the EDVIS. Asked that the Town Council consider leasing with what
EDVIS says they’re going to do for 3 years. Don’t let it go. Sign a lease agreement.
Mike ? West Derry -stated every time we move forward issues arise. Hopes this doesn’t become a long time issue.
Web Palmer, Warner Hill Rd. - wants to save the building. He is the President of the EDVIS.
Paul Doolittle, Old Chester Rd – Spoke on the business plan aspect. Leasing makes some sense. However, if it is a town building, the renter can’t serve alcohol. This could be a Community Center for the whole town.
Al Dimmock, High St - Stands for the history of Derry. As it is town property now there are no taxes or income either.
David Barka, E Derry Rd - Doesn’t want the building demolished. It adds character. It appears that there is a good group of people who want to take it over.
Motion to close the Public Hearing 7-0-0.
Councilor Coyle asked questions of the EDVIS treasurer regarding assets.
Mel True, Old Chester Rd – Answered Councilor Coyle’s questions. Liquid assets- approx. $2800 cash 5900 money market account, own stocks given to organization in 1902 of around $10,000. Not so sure if great momentum with stocks.
Councilor Coyle would like to lease the building until the EDVIS can show the work was done then have the town sell the building to them for $1.
Mr. True stated they can’t go for funding if they don’t control it.
Chairman Metts asked about the liability of rental. Town Administrator Stenhouse replied we would require insurance and that the town would have to be held harmless and also named by EDVIS as an additional insured if there was a lease.
Councilor Benson - asked what the time frame would be from start to occupancy of building.
Paul Dionne stated the main hall would be ready within six months.
Councilor Wetherbee thinks this great that a private organization wants to help.
Councilor Carney echoed Councilor Wetherbee. However, he wanted it to be clear that the EDVIS was only interested in a purchase.
Ken Gould stated that the presentation deals with the purchase, and this is not about a lease.
Paul Dionne stated that if the town wants to talk about some financial money then they will discuss a lease. But if the town doesn't want to offer financial help, they just want to purchase.
Motion: To enter into negotiations with the East Derry Village Improvement Society for the purchase of the Upper Village Hall. Motion by: Councilor Wetherbee, Seconded by Councilor Benson. Vote: 7-0-0
Sub Committee negotiation group will be Councilor Wetherbee, Councilor Coyle and Councilor Chirichiello.
Old Business
09-62 Private Roads Situation Follow Up
Town Administrator Stenhouse stated that Council has received the legal opinion of Attorney Boutin and the Petition received from Mundy Lane under RSA 647:40 is an invalid petition because based upon the title searches reviewed, they would have to submit a petition under RSA 231:8 Layout of a road.
He suggested that there be a delay of the implementation of the ordinance and to continue to service these roads for Winter Maintenance. Several of these roads were not laid out for the sewer and no permission was given.
Councilor Wetherbee requested to recess to consult with the Town Attorney. Vote: 5-2-0 (Fairbanks, Coyle) Recess until 9:45 p.m.
Chairman Metts asked Attorney Boutin what his official position was of the Mundy Lane petition.
Mr. Boutin replied, "I want to preface with some remarks.” In NH towns can only do what the legislature lets them do. One thing you can't do is step outside what the State Statue allows you to do. That being the case we designed the road ordinance to make it easier for people to accelerate the time frames. The road ordinance did otherwise and was to take methods that the legislature provides for roads to become public roads and put them in the ordinance. One of those methods was dedication and acceptance. In this case the petition came in as a dedication and acceptance petition it was picked up on the assumption that somewhere there was a plan that showed the road. This is what a dedication requires. In reviewing with the Planning Department, there was never any type of plan so you didn't have anyone
of the legal prerequisites for the Planning Board to go to a public hearing or for the petition to be in order. That means that this road is eligible for, if the town Council wants to cover it under some other State statue in some other section of the road ordinance. The way to clear this up is with a petition by some of the residents in, where one or more people can sign it is and bring it to the Council under RSA 231:8. What this means is that the town has to go out and locate the road. The reason why this has to happen in this case is that the title information revealed there is no road found through the titles and the only way to do that is by layout.
Motion to extend 10 minutes vote 7-0-0
Attorney Boutin continued with the explanation of the layout of the road. The expense is borne by the town.
Get the petition in right away under RSA 231:8. There is no designated spokesman and not all abutters have to be here. So the Council has to make a decision.
Council Wetherbee Motioned to reject the Mundy Lane petition under RSA 647:40 seconded by Councilor Carney. Vote: 7-0-0
Council Fairbanks, asked Attorney Boutin if the residents of Mundy Lane had to submit a separate petition for winter maintenance layout.
Attorney Boutin stated that the Mundy Lane residents should submit a petition, which does not require all signatures of the abutters. The petition to layout the road for winter maintenance under RSA 231:24. There are drawbacks to the winter road maintenance petition. It does let you proceed to get the road plowed, however the town is required to assess damages and there is a fee for that.
Joan Bostwick ,Mundy Lane - There are four out of the six residents here that are willing to change the petition. She stated that her lawyer got her road put on the State map as public road when the sewer was going in.
Councilor Coyle asked Attorney Boutin to take the petition to the back of the room to assist the residents.
New Business
09-105 Police & Fire Outside Detail Billing Rates
Frank Childs explained the reasoning for the significant rate increases.
Motion to Extend 10 Minutes Vote: 7-0-0
(1)Move that the Town Council adopt the revised outside detail billing rates as set forth in the attached schedules for Police and Fire effective August 1, 2009.
(2)Move that the Town Administrator be authorized to make future changes in said rates based on changes in any of the components used to develop said rates, and that the Town Administrator notify the Town Council of any such change prior to it becoming effective.
Motion by: Councilor Coyle, Seconded by Councilor Wetherbee Vote: 6-1-0 (Carney)
09-106 Environmental Advisory Committee
Councilor Carney requested to remove this item from this agenda and move to the next meeting 8/11/09
09-107 Julian Road - Acceptance as Class V Road
Town Administrator Stenhouse gave the events regarding Julian Road as a public road. However, the town considered Julian Road as a public road after 1991 and shows it in the road inventory until 1993 and 2001 and it is on the NHDOT list of public roads.
Move: The Derry Town Council moves to accept Julian Road as a Class V way based on previous actions by Derry Planning Board and the Derry Town Council.
Motion By: Councilor Wetherbee, Seconded by Councilor Carney. Vote: 6-0-1 (Coyle absent)
09-108 Council Investigation
Chairman Metts asked if Councilor Chirichiello or Councilor Benson would like to speak. Councilor, Chirichiello stated he had no comment.
Councilor Benson stated that he has repeatedly discussed his interpretation of the situation. And he has printed it publicly and expressed it verbally, and he stands by that apology for the comments he made to Councilor Chirichiello. “As I have explained to many people, the comments that I made are not comments Brian made. Unfortunately, Brian just happened to be there when I made these comments. I will apologize for the last and final time for those comments that were inappropriate, and for the private conversation that should have stayed private. In a respectful society, if we had one, we would not be talking about this tonight, but we do not live in this society. I apologize to the people who would put me in this position and that we have had to waste our time for three months on
this issue.”
Chairman Metts read a Motion: It is hereby recognized by the Town Council for the inappropriate conversation that took place between Councilors Benson and Chirichiello concerning Maureen Rose. This acknowledges that these remarks were inappropriate, and I apologize to Miss Rose as well as publicly stating the fact that the conversation was a serious error on their part. The Council acknowledges that these statements are not acceptable and in the future this type of behavior will not be tolerated. Finally, the Council hereby recommends a public reprimand be given to Councilors Benson and Chirichiello and entered into the record of July 14, 2009. No second
Councilor Fairbanks stated “I received a telephone call from a fellow Councilor apprising me that he had received a phone call from you, (Chairman Metts) asking what he would like the outcome to be pertaining to this issue. It appears to me that you will go to any length to avoid an investigation and inquiry into this matter. Any Councilor that has a predetermined decision regarding this issue is in violation of section 3C of the rules of the Town Council, which were adopted July 6, 1993 and amended on July 17, 2007.” Section 3C clearly states, Council members may "make decisions only after all the facts on that question have been presented and discussed". ” I had asked for this inquiry, investigation to be performed because all I have heard are rumors, and I would like to be
able to make a factually informed decision in regard to how we proceed in this matter as a board. I would remind everyone sitting here this evening on the board that we are obligated by the rules to proceed with this matter only after all the facts have been presented.”
“I have unanswered questions due to discrepancies that have been voiced. Is there anyone interested in either exonerating them or correcting them for doing something wrong? Your motion was in violation of section 3C, because all the questions have not been asked.”
Chairman Metts asked for motion to extend
Council Fairbanks motioned to extend 10 minutes, seconded by Councilor Carney. ( 5-2-0 vote is required to extend)
Vote: 4-3-0 motion failed
Adjournment 10:30 PM
_________________________________ ______________________
Town Clerk Date
Attachments: 9 items provided by Mike Gill - MAY BE VIEWED AT THE DERRY MUNICIPAL CENTER
Transcription by: Denise Neale, Town Clerk
Reviewed by: Town Administrator Stenhouse
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