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Board of Selectmen Minutes -- 02/02/2012
Selectmen’s Board Meeting
February 2, 2012

Present:        Beatrice Davis, Chairman; Jerry Dougherty IV and John Allen, Selectmen

Visitors:       Office Administrator Diane Falcey, Police Chief Karl Meyers, Treasurer Warren Schomaker, Town Engineer Burr Phillips, Jerry Dougherty, Kathleen Dougherty, Bill Wogisch, Frank Benesh Gino Funicella, Hank Benesh, Larry Siebert, Sue Chase, Bernard Pelech, Burr Phillips, Bob Defuto, Bob Thompson, Dave Mason

Chairman Beatrice Davis called the meeting to order at 4:07 p.m.

  • Amend & approve minutes:
  • Selectmen’s Meeting – January 19, 2012  Selectman Dougherty, seconded by Selectman Allen, made a motion to approve the minutes of January 19, 2012.  The motion passed unanimously.
  • Non-Public Session #2 – January 5, 2012  Selectman Dougherty, seconded by Selectman Allen, made a motion to approve the minutes of Non-Public Session #2 of January 5, 2012.  The motion passed unanimously.
  • Moment of Silence – In honor of Paul Belluche   The Board observed a moment of silence in honor of Paul Belluche who passed away last night.  Following the moment of silence Bill Wogisch let everyone know services for Paul would be held on February 9th at Our Lady of the Mountains Church in North Conway at 11 a.m.
  • Police Report  Police Chief Karl Meyers presented a bag with two pounds of marijuana that had been intercepted after being sent to a Jackson address noting this is two pounds that won’t be sold or smoked in the town of Jackson.  Selectman Allen asked if the package had been mailed which Chief Meyers affirmed.  Chief Meyers reviewed other activities since the Board’s last meeting; some items included a motor vehicle accident on Route 16 where the car had slid off the road and another accident which resulted in a rear-end accident.  Officers assisted the Ambulance with a male subject that was attempting to hurt himself.  Chief Meyers has been checking on a home where an owner has registered a car here but doesn’t live here; the car is not here so he wrote a letter for the Town Clerk.  A report was taken from a woman who felt her ex-husband had gone through the house but when officers called the ex-husband he was at his house.  The Jackson Cross-Country Ski Race went well.  Officers assisted the ambulance for a call at the skating rink.  Officers arrested a man who was intoxicated and domestically assaulted his girlfriend; he held her against her will.  There was a statuette stolen from a house that was identified and returned to the owner.  There is a new business in town that is getting fraudulent orders via the internet from Canada.  There was an accident with a town Highway truck on Cross Street.  Officers provided a medical assist at a hotel where a visitor fell on the ice; two cases were adjudicated in court; there were some kids who missed the Jackson bus and had no way to get home so Chief Meyers got them and brought them home.  A report was taken of a window broken by salt or a rock kicked up by a town truck.  At a local business the snow came off the roof and literally buried an elderly woman to the waist; the employees saw what happened and dug her out; she apparently only hurt her ankle.  There was a report of a canine chasing cars.  Last week Route 16 was closed, between Jackson and Berlin due to ice and a number of cars off the road, until a deicing crew was sent from the State Highway Department.  A complaint was taken about Verizon employees working on a corner without a flagger; Chief Meyers spoke to them.  Officers stopped a reckless operator who was passing on the shoulder, on curves and solid lines.  There was an argument between an employer and employee; Officers escorted the employee off the premises and let the employee know not to come back.  Last night Officers responded to the call for Paul.
  • Building Permits - Andy Chalmers, Building Inspector
  • Jackson Town Office (Map R14, Lot 8) Install 10 circuit manual transfer switches for remote generator  Selectman Allen, seconded by Chairman Davis, made a motion to approve the Building Permit for the Jackson Town Office (Map R14, Lot 8).  The motion passed 2-0-1 (Dougherty abstains).
  • Petruska, Leonard (Map R17, Lot 26A) Kitchen remodel; electrical & plumbing upgrades  Selectman Allen, seconded by Chairman Davis, made a motion to approve the Building Permit for Petruska, Leonard (Map R17, Lot 26A).  The motion passed 2-0-1 (Dougherty abstains).
Selectman Dougherty pointed out that issuing these building permits conflicts with the Board’s last adopted policy.  He read a section of the minutes from April 1, 2010 when the Board revised the permit application.  He contends that the current policy has not been adopted by the Board.  When reminded this has to do with electrical and plumbing work Selectman Dougherty noted he understands that; the revision says work that involves plumbing and electrical, if the work is under $10,000, may require inspections but does not need permits.  The policy of issuing permits for work under $10,000 has not been adopted by the Board; he asked where, in the record, did that policy come to be.  Office Administrator Falcey noted during the Selectmen’s Work-Session in May 2011 and the Selectmen’s meeting following the work session to approve the recommendations made from the work session indicates that the record shows the policy was changed; Selectman Dougherty was there; he was instrumental in the change to the policy and Building Permit application.  Selectman Dougherty noted those minutes are from a Work-Session; that was not a policy change; the Board doesn’t change its policies in a Non-Public forum.  Chairman Davis will check back records to find out when it was adopted.

  • Intent to Cut: Baker Family Trust (Map R12-141) 11-231-11 T  Selectman Dougherty, seconded by Selectman Allen, made a motion to accept the intent to cut.  The motion passed 2-0-1 (Davis abstains).
  • Application for Veteran’s Tax Credit: DeLuca, Anthony (Map V7, Lot 25) The Board has an application for Map V7, Lot 25; Selectman Dougherty asked if this a new one that has come to the town; when this was affirmed he then asked if there is any reason the Board shouldn’t approve it which was negated.  Selectman Dougherty, seconded by Selectman Allen, made a motion to approve the Veteran’s Tax Credit for Map V7, Lot 25.  The motion passed unanimously.  
  • Board of Selectmen March Meeting: Reschedule March 15 to March 22  Chairman Davis noted that because Thursday March 15 is Town Meeting day the Selectmen’s Meeting will be rescheduled to Thursday March 22nd.
  • 459 Black Mountain Road: Sue Chase & Attorney Bernard Pelech  Ms Sue Chase and Attorney Bernard Pelech joined the Board; Attorney Pelech noted they are in attendance tonight to make the Board aware of the situation regarding a new driveway cut in just above Sue’s place; she has been experiencing serious runoff for a year.  Town Engineer Burr Phillips has been involved; the plan shows the detention basin that was constructed but it doesn’t detain anything.  Attorney Pelech distributed pictures to the Board that show the run off.  What is happening is that the water passes through culverts, into the detention basin and then it runs across Black Mountain Road onto Sue’s property; it has also degraded a riding path.  Attorney Pelech also had pictures that show the detention basin wasn’t working; there is a lot of sedimentation.  Sue hired White Mountain Survey & Engineering to look at it; a report from Mark Lucy, who is a professional engineer, indicated there are a couple of things that are not working with storm water runoff; it is not just storm water runoff there is continual ground water because when they cut the driveway they cut a number of springs; hopefully the detention basin will solve the problem; Sue will have to wait until the spring to know for sure if it works.  Mark’s report also indicated the driveway violated the Zoning Ordinance.  Attorney Pelech noted the basin still is not detaining anything but the town has been up there working on it; hopefully he won’t be back in the spring saying the problem is still there.  He assumes the Selectmen enforce the Zoning Ordinance; it was explained that the town does have a building inspector but the Selectmen have the final decision.  He pointed out that culvert #7 was always dry; culvert #8 is the culvert where the storm water runs on to Ann Peterson’s property.  There is water now passing through culvert #7; it is spreading out and eroding the bridle path.  It was noted water was running around the outlet pipe that was supposed to catch the water; the water was not going into the basin.  Selectman Dougherty asked Engineer Phillips to explain what the detention pond is supposed to do when it starts performing properly; Engineer Phillips noted there will still be water running through culvert #7; the pond would hold the water which then drains into the town culvert.  Sue noted she’s dealing with redirected water.  Engineer Phillips noted that on peak flows there is no increased flow from the site with the exception of the storm in November when the water filled the pond with sediment; the pond filled up to the top and water went into the spillway.  During that one event the flow exceeded the existing conditions.  From day one the plan for the pond is that it will always be discharging; making her land more wet than it was.  He stated it is not excessive to him but she may define it as excessive.  Mr. Shaw has offered to pay for that ditch but Sue hasn’t made a decision on that; he is prepared to repair the bridle path too.  Engineer Phillips noted the town can’t stop people from building there; they had a good plan but with the storm in November the system didn’t work.  Selectman Allen asked if the driveway is finished and when he was informed it’s not finished yet he noted no one can see what it’ll be like until the spring.  The vegetation needs to get going before the project is complete; there will always be water going through the pond.  When it was noted something needs to be done to mitigate the excess water going onto Sue’s property; Engineer Phillips asked what was meant by excess; he reiterated an event like in November where there is a large flow of water, then her horse path would be threatened again regardless of how well the basin performs.  Mr. Shaw has offered to repair the damage next fall when we know how it is working.  Engineer Phillips noted overtopping of the system should be very rare; maybe once in every twenty-five years.  He noted nine out of ten times detention ponds will dry out but there are springs there and there will always be a small steady flow of water similar to a garden hose going all the time.  Now that the springs have been exposed it will need to be diverted to the brook.  Sue asked why the water can’t just run down the road and Engineer Phillips noted best practice is to get the water away from the road as fast as possible.  Sue asked why Engineer Phillips said the water couldn’t be put through culvert #8 and he noted there was a plan that was originally approved that required an easement from Sue; when they didn’t get that they put the pond in.  There was an idea to send the water above but that plan would need Anne Peterson’s easement and she wouldn’t agree to it.  Sue asked why she can’t say no like Anne did and Engineer Phillips noted she did say no; that’s why they put in the detention pond.  Sue noted the reason there’s so much water going into her yard is because the driveway was cut through a wetland.  Engineer Phillips noted the driveway was not cut through a wetland; there is only an eight by ten foot area that is wetland.  Sue noted there are six culverts up there so obviously there is water up there and the culverts have rechanneled the water.  The only approved plan is this one; Selectman Dougherty doesn’t think the original plan was approved; it was approved conditioned upon needing the easements.  (Sue and Attorney Pelech left the meeting).  
  • Jackson ZBA Board – Hearing Process  Frank Benesh, ZBA Chairman, handed out a letter from the ZBA responding to Selectman Dougherty’s statements at the January 5th meeting.  He summarized the letter noting Selectman Dougherty felt the ZBA should have acted to reopen the Hearing on the Dickies’ case; the ZBA felt differently; they asked “would the question have been compelling enough that the Board would believe it had made a mistake”.  Selectman Dougherty noted from the minutes of the ZBA meeting of December 21st during discussion about the Selectmen’s request to reconsider reopening the Hearing the ZBA asked why the Selectmen didn’t come to discuss the issues which indicates the ZBA thought that was the proper forum to consider the issues; Chairman Benesh had wondered why the Selectmen didn’t come to present the information they had.  Procedurally, the ZBA was trying to rehear the actual case and that was not the proper forum for that.  The ZBA was to decide whether to grant the rehearing or not; the ZBA didn’t understand what it was doing.  ZBA Chairman Benesh noted the ZBA was deciding whether the Selectmen presented information that would cause the ZBA to reexamine the case and come to another conclusion.  Selectman Dougherty noted the ZBA thought if there was more information the Selectmen should have been at the meeting and that isn’t correct.  ZBA Chairman Benesh noted the challenge to the testimony should have been at the original Dickie Hearing.  Selectman Dougherty noted none of the Selectmen were aware the ZBA was having the hearing; it was noticed; but the Selectmen didn’t know it was happening; the Selectmen did have new information and there were factual inaccuracies in the testimony that the ZBA used to reach its decision.  Selectman Dougherty respects the ZBA’s decision but it’s procedurally incorrect.  ZBA Chairman Benesh noted the Board members tried to lay that out along with their decision not to grant the motion for a rehearing.  Chairman Davis pointed out that the ZBA did publish in the paper that they were going to have the Dickie hearing but she honestly forgot the date.  Selectman Dougherty noted the Selectman weren’t appealing the decision; they were asking the ZBA to reopen the hearing; the ZBA didn’t consider the Selectmen’s grounds only the accuracy of their original decision.  
Chairman Davis read the following statement:  

To the Jackson ZBA:  Regarding the Re-hearing of the Dickie Decision:  The ZBA has denied the Selectmen’s request for a rehearing.  There would be no gain for anybody to pursue this but at the very least Selectman Dougherty would like the Selectmen to have an in-depth discussion with the ZBA on the decision from a procedural standpoint; based on the reasons given he doesn’t know that the ZBA knew what they were deciding at the December 21st meeting.  The Selectmen weren’t appealing the decision; they were asking them to reopen the hearing because their decision was made on false information.  During the December 21st meeting the ZBA didn’t consider the Selectmen’s grounds for a rehearing; they only considered the accuracy of their decision.  The Selectmen were asking for a rehearing to present facts the ZBA didn’t have at the original hearing.  While the Selectmen can appeal the decision not to grant the rehearing it was decided not to do so that this doesn’t affect the Dickies anymore.  The process needs to be clarified with the ZBA so they understand their role and the Selectmen’s role.  Many of the facts they based their decision on were false.  

ZBA member Dave Mason asked that the Chairman read the ZBA’s letter into the record since the Selectmen’s statement was.

Chairman Davis read the following letter from the ZBA to the Selectmen:

February 2, 2012
Jackson Board of Selectmen

Dear Selectmen:

At your meeting on January 5th Selectman Dougherty expressed his desire to have an in-depth discussion with the ZBA in regard to procedures during their hearing of the selectmen’s request for a rehearing of the ZBA’s Dickie decision.  From the statement included in the January 5th minutes, it appears Selectman Dougherty feels the members of the ZBA lack an understanding of their responsibility in regard to a request for rehearing and the selectmen are positioned to instruct them in proper procedures.

We point out; the ZBA is an independent body that does not answer to the selectmen.  It is comprised of responsible people who volunteer and have available to them guidance from the Local Government Center and the NH Office of Energy and Planning.  Each member has reference material covering all aspects of the responsibilities of the Zoning Board of Adjustment.  Your request for rehearing was discussed in light of the guidance received from such sources.  Your request was based on your finding of “substantial errors in the statements of background and fact” presented in the ZBA’s decision.  Those were discussed to see if there was agreement with your premise of substantial error:  there was not.  Without specifying anything, you alluded to “new information”.  The Office of Energy and Planning has this to say about granting a rehearing; “The reasons for granting a rehearing must be compelling ones; the board has no right to reopen a case based on the same set of facts unless it is convinced that an injustice would otherwise be created, but a rehearing should be seriously considered if the moving party is persuasive that the board has made a mistake”.  A reference to unspecified new information, viewed against the background of the fact selectmen didn’t attend the original hearing or communicate any information in regard to their concerns, was not thought to be compelling.  The OEP also advises; “A person (party with standing, in this case the selectmen) has a right to apply for a rehearing and the board has the authority to grant it.  However, the board is not required to grant the rehearing and should use its judgment in deciding whether justice will be served by so doing.  In trying to be fair to a person asking for a rehearing, the board may be unfair to others who will be forced to defend their interests for a second time”.  Voting members of the ZBA feel justice was served by our decision.

Respectfully,
Frank Benesh, Chairman
Gino Funicella, Member
Martha Benesh, Member
Dave Mason, Member

ZBA Chairman Benesh thinks the motion for a rehearing, if granted, means the ZBA throws out everything it has done and starts over; the Dickies would be trying to do construction which would have to stop or they could proceed at their peril; they would have to re-notice everyone; a new hearing is unfair to the Dickies unless the motion for the rehearing has information in it that makes the ZBA think it made a mistake; there were things that were said at the original hearing that one may think were inaccurate or unfair but nobody from the town spoke; there was only one townsperson who showed up but he didn’t speak.  He noted that perhaps the decision could have been more artfully written but in todo there was not enough there to reconsider.  Selectman Dougherty noted the ZBA members changed some of their opinions in their consideration to rehear this; the members re-clarified their original decision.  He pointed out that the ZBA’s consideration for a rehearing is not the time to present the new information; ZBA Chairman Benesh told Selectman Dougherty he was wrong about this; Selectman Dougherty noted the two Boards should come to an understanding on this.  ZBA Chairman Benesh noted if any other party moves for a rehearing on a ZBA decision the reasons for the rehearing have to be in the motion for the rehearing.  Selectman Dougherty told ZBA Chairman Benesh he is wrong; it’s clear the two Boards aren’t going to resolve this; Selectman Dougherty doesn’t think it’s worth pursuing and it wouldn’t be fair to the Dickies.  ZBA Chairman Benesh noted the Board received guidance from the Local Government Center and the Office of Energy and Planning.  Selectman Dougherty noted, with all due respect, he also received guidance from the LCG and they indicated the request for a rehearing didn’t have to go into nearly the detail the Board went into; the Board could have just requested the rehearing based on new information; that’s where these two Board need to come to an understanding of each Board’s role to function properly; the Boards need to have a workshop about this.  He noted the ZBA has been granting a lot of variances with the volume ordinance which means there may be a problem with Jackson’s volume ordinance.  ZBA Chairman Benesh believes the ZBA wouldn’t agree with that; some of the variances were granted before the ZBA went to the Planning Board to ask for a change; that’s how the section on volume was amended; the ZBA granted a variance to Brian Byrne and Larry Garland after doing that.  David Urey and ZBA Chairman Benesh spoke to the Planning Board suggesting an amendment to the volume ordinance.  Each year the ZBA looks at what it is doing and will raise issues with the Planning Board; so far the ZBA doesn’t feel that’s the case.  ZBA Chairman Benesh sits on the Planning Board to help improve communications.  

  • MWV Economic Council Appointment (1 year)  
  • Jackson representation on Board of Directors – Jeff Hayes  Selectman Dougherty, seconded by Selectman Allen, made a motion to appoint Jeff Hayes as the Jackson Representative on the Board of Directors.  The motion passed unanimously.  It was noted that Jeff is a great asset in this position.
  • 2012  Budget updates
  • Petitioned Warrant Art. –To see if the town will vote to instruct the selectmen not to enter into a new contract for municipal services at the Bartlett/Jackson Transfer Station extending beyond the current budget year  Selectman Dougherty made a motion to not favor the article but was reminded that Robert’s Rules of Order require the motion be in the positive with members voting “no” if they don’t agree.  Selectman Dougherty will not make a motion to that effect.  If there is no motion to favor it; the article would be “not favored” by the Selectmen.    
  • Petitioned Warrant Art. – To see if the town will vote to instruct the selectmen to continue to enforce the State Building Code, adopted by the State of NH as RSA 155-A and applying to all construction in the State pursuant to Section 16, Administration and Enforcement, of the Town of Jackson Zoning Ordinance  Once again, without a motion the Article will be “not favored” by the Selectmen also.  
  • Library:  $800.00 increase – funded by trusts
  • Cemetery:  $7300.00 – Tax appropriation
  • Old Library: $5000.00- Tax appropriation
  • Maintenance of Town Buildings – $3000.00- Tax appropriation/Police Office upgrades  Selectman Dougherty will answer any questions about this; Chief Meyers is requesting the money to have the exterior door replaced with a full glass door with a more significant lock which will be more secure and efficient; he also wants to have the air conditioning ducts moved into his office.  When asked why the Chief wants the door to be a full glass Selectman Dougherty noted he’ll check with Chief Meyers about that to make sure that’s the plan.
  • Projected Tax Rate due to adjustments: $4.13
The Board was asked if it will have the vote to recommend or to not recommend on the petitioned articles.  While it was noted these articles have to be put on the warrant the Board isn’t sure if it’s policy has been to vote to recommend or not recommend petitioned articles or not.  Gino Funicella would suggest the Selectmen take a vote to favor or not favor.  Jerry Dougherty noted all petitioned articles said whether the Selectmen did or did not favor them last year.  The Board will take a vote to favor or not each of the articles at the Budget Hearing.  

  • Public Comment  Gino Funicella noted the Board has been going into Non-Public Session a lot lately; what was done in the past when there was a complaint from an employee, if the person bringing the complaint allows it, the complaint was made public.  He would suggest that if the employee would waive the Non-Public option it could be brought forward in Public Session.  He asked if the Public can know who the complaint is against.  Selectman Dougherty noted the Public is not allowed to know that; it is not up to the employee to determine if the information is to be discussed in Public or Non-Public Session; it’s up to the Selectmen.  Dave Mason disagrees; it is up to the employee; if the employee making the complaint wants to have a public hearing then the Board can make it public; Selectman Dougherty noted this all depends on the circumstances; it wouldn’t be up to the employee; at this time the Selectmen don’t know what the circumstances are of the grievance.  Chairman Davis has read the complaint and feels the Board needs to go into Non-Public Session to discuss it.  Selectman Dougherty reiterated the determination is made by the Selectmen not the employee; the determination to go into Non-Public Session is up to the Selectmen.    
Jerry Dougherty would just like to reaffirm that the Selectmen do not favor either of the petitioned articles discussed tonight; this was affirmed.

Selectman Dougherty, seconded by Selectman Allen, made a motion to go into Non-Public Session at 5:21 p.m. in accordance with RSA 91-A3, II (a) to discuss an employee grievance.  The motion passed unanimously.  

  • Non-Public session pursuant to RSA 91-A:3,II (a):  Employee Grievance  
The Board returned to Public Session at 5:57 p.m.

The meeting was dissolved at 5:58 p.m.

                                                                Respectfully submitted by:

                                                                Martha D. Tobin

                                                                Recording Secretary