ZONING BOARD OF ADJUSTMENT MINUTES
JANUARY 10, 2006
PUBLIC SESSION
APPROVED BY THE BOARD FEBRUARY 7, 2006
PRESENT: ABSENT:
Mr. Doug Leib, Chair
Mr. Earle Rourke
Mr. John Morin
Mr. Kevin Bassett
Mr. Kevin Jordan
OTHERS PRESENT:
Mr. John Teague, Attorney for ZBA
Mr. Edward Mosque, Attorney for USA Springs
Mr. Mike Russo, Neighborhood Guardians
Mr. Jim Hadley, Neighborhood Guardians
Mr. Chris Reagan, Neighborhood Guardians
Mr. Jeff Delucia, USA Springs
Ms. Kelly Tivnan, ZBA Secretary
The Chair called the meeting to order at 7:00pm.
DISCUSSION OF CASE 05-10:
Mr. Leib read out loud that the Neighborhood Guardians were applying to appeal an administrative decision by the Planning Board regarding their site plan review for USA Springs. He explained that this was a meeting and not a public hearing and he explained the process which would take place at the meeting. He said that both sides would be able to give their arguments but the public would not have the opportunity to speak.
Mr. Mike Russo said that he was speaking on behalf of the Neighborhood Guardians. He said that their organization had appealed the Planning Board decision to the Superior Court but he said that this was too important for them to take chances so they had appealed to the ZBA as well. He noted that the ZBA had granted a special exception to USA Springs in 2001. Mr. Jim Hadley said that he also was speaking on behalf of the Neighborhood Guardians. He said that the ZBA needed to act on the evidence in this case. He said that the ZBA also needed to act within the ordinance and they did have time constraints. He explained the RSA's that he had given to the ZBA as exhibits in his argument. He said that relief from the terms of the ZBA decision in 2001 could only be gotten from the ZBA. He noted that
the issue was water quality. He said that the Planning Board could not waive or change the conditions of the ZBA and he said that the Planning Board had gone against ZBA condition #3 from their 2001 decision. He said that the court had ruled against Nottingham and he said that the Planning Board had never been preempted by the court regarding the issue of water quality. He included those decisions in his exhibits. Mr. Chris Reagan said that the Neighborhood Guardians were a citizen action group. He requested that the ZBA hear the appeal. He said that the ZBA was supposed to interpret the law and the Planning Board was not. He said that the Neighborhood Guardians wanted this meeting to be fair for all parties involved and they wanted the ZBA to protect the people and the businesses of Nottingham. Mr. Leib asked if the withdrawal testing had been a part of the court decision. Mr. Hadley said that the pump test had been included
but not testing of the wells.
Mr. Edward Mosque, the attorney representing USA Springs said that they questioned the standing of the group, Neighborhood Guardians. He gave the ZBA a response to their notice of meeting. He said that Mr. Russo claimed he was directly affected by the large groundwater withdrawal. He said that the groundwater withdrawal was to be done with a permit they had received from the state of New Hampshire Department of Environmental Services. He said that he did not feel there was sufficient basis for jurisdiction in the case of large groundwater withdrawal. He said that state law preempted the municipality. He read out loud from the letter he wrote. He said that the Superior Court had trial jurisdiction. He said that there had been no appeal of the previous court decision to the Supreme Court.
He said that the Planning Board had discretion to decide which experts to listen to. He said that the grounds for this appeal had nothing to do with zoning issues. Mr. Leib asked about the difference between Mr. Mosque's and Mr. Hadley's position on the court case. Mr. Mosque said that the case was about the specific function of the pump test. He said that the Planning Board could not base a denial on the large groundwater withdrawal. He said that the state Department of Environmental Services had a process for granting large groundwater withdrawal permits and the state had the authority to regulate those withdrawals. Mr. Leib asked if that was in an RSA. Mr. Mosque said that it had been determined by case law but there was no specific language stating it in the RSA's. Mr. Leib asked if there was an RSA giving the state authority over large groundwater withdrawals. Mr. Mosque said that there were various statues and he
said that a judge had said groundwater withdrawals were off limits for municipal regulation.
Mr. Teague said that this came down to a procedural question. He said that the question was what was being appealed. He said that the Neighborhood Guardians, the Town of Barrington and USA Springs had properly filed appeals of the Planning Board decision to the Superior Court. He read from the RSA and said that interpretation of the Zoning Ordinance needed to come from the ZBA. He said that this application seemed more like a general request that the ZBA review the Planning Board decision. He said that the ZBA needed to interpret decisions by administrative officers. He wondered whether the Planning Board would qualify as administrative officers in this case. He said that they needed to look at what the question was here. He said that the ordinance prohibiting the sale of beverages across town
lines was void in this case. He said that ordinance violated the New Hampshire Constitution and the United States Constitution. He said that he did not agree with Mr. Mosque's interpretation of preemption. He said that the Planning Board did not consider the effect of groundwater withdrawal. He said that in his opinion the problem with this appeal was that he thought it asked the ZBA to interpret state law. He said that he did not think interpreting state law was within the statutory description of the ZBA.
Mr. Hadley talked about preemption and he said that the RSA provided a declaration of policy. He said that the state provided a framework for the local protection of groundwater. He said that the Planning Board had never done an impact study on the neighborhood. He said that the role of the local government was to deal with the protection of the groundwater not to deal with the amount of groundwater. He said that Condition #3 as decided by the ZBA during the USA Springs case in 2001 had never been done. Mr. Russo said that local control was valued in New Hampshire. He said that the ZBA had this right in 2001 when they had talked about water quality. He said that the ZBA could send a message to the Department of Environmental Services by accepting this appeal. He said that the state had not
supported the town in this case and they needed to look at the adverse impacts from the pump test. Mr. Reagan said that the ZBA could have the powers to reverse decisions of the Planning Board. Mr. Mosque said that the ZBA did not have any statutory authority to send a message to the Department of Environmental Services. He asked what would form the basis of an appeal of the statute.
Mr. Leib asked Mr. Teague to clarify the 2001 ZBA decision and what the state had said about this. Mr. Teague said that the Planning Board had looked at that. He said that there was no way to determine how far the ZBA had intended for the company to go when following condition #3. He said that the Planning Board had the continuing authority to monitor USA Springs. He said that the company had not started their business yet. He said that the Planning Board had gone as far as they thought they could in advance of the company actually building and opening. He said that the Planning Board had incorporated the ZBA conditions into their approval of the project. He said that the Planning Board was intent on enforcing these conditions. Mr. Bassett asked if there was a timeline for when the Supreme
Court might make a decision on these cases. Mr. Teague said that the case about the pump test had been brought by the Town of Nottingham in front of the Superior Court. He said that there was an appeal before the Supreme Court regarding the Department of Environmental Services permit which raised questions about what the Department of Environmental Services was supposed to do. He said that some people felt the Department of Environmental Services had ignored evidence. He said that the Planning Board had raised the question of who had jurisdiction regarding the quality of the water extracted from the ground. He said that there were three additional appeals of the Planning Board decision in front of the Superior Court. He said that the Planning Board had entered into an agreement with the applicant and they had come up with conditions but he said that it was all with the understanding that USA Springs could bring up the jurisdictional challenge in
court. He said that an amicus had been filed by the Department of Justice which was an important player in the Supreme Court. Mr. Bassett asked when this might be decided. Mr. Teague said that it should be in less than a year but he really didn't know. He said that they were trying to get a decision more quickly but he didn't know if that would happen. He said that the court had issued orders of notice for a trial on April 10, 2006. He said that all 3 cases needed to be heard in 30 minutes. He said that a certified record needed to be put together. Mr. Russo said that everything before the ZBA was being appealed in court. Mr. Mosque said that there was an appeal before the wetland council as well but it was not clear that they would accept it. Mr. Leib said that it seemed USA Springs appealed the Planning Board decision because they felt it was too restrictive and the Neighborhood Guardians and Town of Barrington had
appealed the Planning Board decision because they felt it was not restrictive enough. He asked what would happen if the ZBA decided the opposite of what the Planning Board had decided. Mr. Hadley said that the case would go back to the Planning Board. Mr. Russo said that the two appeals were slightly different. He said that the Neighborhood Guardians had appealed the zoning portion of the decision to the ZBA and the planning portion of the decision to the court. Mr. Mosque said that the Neighborhood Guardians could wait to see what the court said before they appealed to the ZBA. Mr. Reagan said that the Neighborhood Guardians did not want to make any missteps. He said that the neighbors were concerned about the Planning Board decision and they wanted the ZBA to add clarity. Mr. Teague said that the Neighborhood Guardians had protected their right to have the ZBA hear this case. He said that everyone was protected now. He
said that this case could be held in abeyance until after the court rulings but all parties would need to agree to that. Mr. Mosque said that USA Springs would agree to that. The Neighborhood Guardians took a short recess to discuss whether they would agree to that or not.
Mr. Reagan said that the Neighborhood Guardians would agree to hold the appeal in abeyance until after the court rulings if USA Springs would agree to hold off on getting a building permit until after the court rulings. Mr. Mosque said that USA Springs would not agree to that. Mr. Teague said that the project could go ahead as long as there was no action taken to prevent that. He said that the request for a voluntary injunction from the applicant until all the issues were resolved had been declined. He said that the Building Permit application could be appealed. He said that nothing had been applied for yet. He said that often a developer did not do any building during a case like this because the decision could still be reversed in court but he said that it was up to the developer whether they wanted to
take that calculated risk or not. Mr. Hadley said that the ZBA could hold up issuance of a building permit and the Building Inspector could delay issuing a permit until the appeal period had passed.
Mr. Leib said that in 2001 the ZBA had felt it was necessary to say that there could be no adverse impact on the neighboring wells. He said that he would feel uncomfortable hearing the appeal of this case. He said that he would like the ZBA to table the case which would give all the parties a chance to bring back the case at a later date if necessary. Mr. Teague said that by doing that the ZBA would basically be denying hearing the appeal. He said that decision could also be appealed. Mr. Reagan said that he knew hearing this case would be uncomfortable for the ZBA but he said that it would be the right thing to do. Mr. Leib said that people on the ZBA who had not followed the Planning Board case closely would be expected to make decisions on things which experts had looked at. He said that the ZBA
were not experts. Mr. Rourke said that this had been a site plan review for the Planning Board. He said that the ZBA should not look at this case without a zoning issue being brought forward. He said that the ZBA should hold on deciding whether the condition in question from the previous ZBA decision was being met because the issue was still in court.
Mr. Rourke made a motion to table the application from the Neighborhood Guardians and to deny any future hearing regarding only site plan review. Mr. Morin seconded the motion. The present members of the Zoning Board voted unanimously in favor of the motion. The motion passed 5-0.
Mr. Rourke stated that site plan review was the jurisdiction of the Planning Board.
Mr. Morin made a motion to adjourn the meeting at 8:40pm. Mr. Jordan seconded the motion. The present members of the Zoning Board voted unanimously in favor of the motion. The motion passed 5-0.
Respectfully submitted,
Kelly Tivnan
ZBA Secretary
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