Town of Plaistow, NH
Office of the Planning Board
145 Main Street, Plaistow, NH 03865
PLANNING BOARD
August 30, 2006 – Special Meeting
The meeting was called to order at 6:32 p.m.
Roll Call: Tim Moore, Chairman; Robert Zukas, Vice Chairman; Steven Ranlett; and Michelle Curran, Selectmen Ex-Officio were present. Barry Weymouth was excused.
Also present: Leigh G. Komornick, Planning Coordinator and P. Michael Dorman, Building Inspector/Code Enforcement Officer.
Continuation of a Public Hearing on a Site Plan Review Application for the proposed reuse of 3 existing industrial buildings including the addition of loading docks and grading improvements located in the industrial zone at 144 Main Street, Tax Map 41, Lot 12, totaling 36.5 +/- acres
T. Moore noted that there was a presentation made a few weeks previously and there were a few questions that the Board wanted to research before making any determinations and therefore the public hearing had been continued to this night.
T. Moore reported that one of the issues of concern was potential use of the railroad and whether it would preempt local controls over uses on the site. He referenced a letter from the Planning Board Attorney concluding that since the applicant is not a rail carrier themselves, preemptive controls are not an issue.
T. Moore reminded that another issue was the break down and subsequent leasing of part of the building to other businesses. He noted that a note is to be added to the plan reading “Each proposed use or any change in use must be reviewed and approved by the Planning Board.”
George Chadwick, representing the applicant, offered that there were no objections to either of the items.
T. Moore noted the third issue was as to whether or not the uses proposed by Winfield Alloy are in keeping with the permitted uses currently allowed in the Industrial District.
Staff report noted a recommendation from Attorney Bruce Marshall that there be a note added to the plan that precluded recycling activities, including the stripping of computers, which in his opinion is a recycling process under the definitions provided by the New Hampshire Department of Environmental Services (NHDES).
T. Moore asked if there would be any State or Federal permits that Winfield Alloy would be required to obtain for the uses proposed at the Plaistow location.
Eric Tetler, Winfield Alloy, replied there was not.
M. Curran suggested that, after reviewing the NHDES definitions of recycling provided by Attorney Marshall, that the applicant be sent to the Zoning Board of Adjustment (ZBA), for a variance for the recycling use.
T. Moore read the definitions provided by Attorney Marshall. Those were cited as
- Env-WM 102.128 “Processed recyclable material”
- Env-WM 102.135 “Recyclable materials”
o (a) Hazardous waste
o (b) Waste identified as non-reusable
o Wastes from an unspecified production
- Env-WM 102.136 “Recycling facility”
- Env-WM 102.137 “Recycling”
- Env-WM 102.149 “Select recyclable material”
M. Curran reiterated that looking at these definitions and in light of recent changes in the Zoning Ordinances the issue should be sent to the ZBA.
Arthur Karas, Winfield Alloy, reminded the Board that they had submitted a letter with all the proposed activities planned for the Plaistow operations and he didn’t see how these definitions changed any of that.
E. Tetler added that they had a large operation and therefore a larger building was required. He continued that they do some segregation and repacking but otherwise do not handle materials, with the exception of some re-palletting. He noted there was no cyanide or acids use, the parts are segregated and sent to market.
There was discussion regarding the operations planned for the Plaistow operation. It was noted that monitors were not disassembled, but PCs (personal computers) were. It was noted that new materials come into the facility but are not touched, only redirected to a different market. Litho print does come in to be inventoried and sent to other sites. There is no precious metal or iron refining, though some metals are collected, inventoried and reshipped to other markets for re-use.
There was lengthy discussion among Board members regarding the proposed uses and uses that were witnessed as part of a previous site walk to the company’s Lawrence facility. There was agreement that there may be a recycling use, as defined by the NHDES definitions provided by Attorney Marshall, but there was disagreement as to which uses fit the definition. M. Curran suggested that the segregating of the computer parts was a recycling use. T. Moore, S. Ranlett and R. Zukas noted the collecting and reshipping of some metals as the recycling use.
E. Tetler stressed that they were not recycling anything in the Plaistow facility. He noted the Plaistow operation to be a storage and warehousing facility, with some de-manufacturing. He offered there was not one business operation that didn’t have some kind of by-product that may be sent for recycling. He used the example of a grocery store that would collect all its cardboard boxes to be recycled.
Steve Clark, Attorney for the applicants, noted that if the Board were to follow the logic they were applying to this plan then all business applicants should be sent to the ZBA for recycling uses.
M. Curran reminded that these uses were recently restricted in this district.
E. Tetler noted that the changes were made because of issues with solid waste transfer.
There was additional discussion as to whether or not there was a recycling use proposed for this site and what the spefic recycling use would be. The NHDES definitions were reviewed a few more times. Representatives of Winfield Alloy continued to insist there were no recycling uses proposed for the Plaistow location.
L. Komornick explained that she had not met with the Board’s Attorney to discuss the recycling use, as this was previously determined by the Board. She noted that as part of discussions regarding other issues (railroad and federal permitting) raised by this site plan application, the attorney offered that the described uses were indeed recycling as he understood NHDES to define recycling.
T. Moore offered that in his mind there were three areas of question regarding whether or not there was a recycling use:
- Newsprint
- Computers
- Aluminum and plastics
M. Curran reminded that most of the items were being brought in, inventoried and stored.
She added the computers were the only thing being broken down and the parts being re-shipped to other markets, which she saw as the recycling use.
T. Moore suggested that the NHDES definitions could be read to 100 different people and be interpreted 100 different ways. He said that he didn’t see an issue with the computer de-manufacturing but did see concern with the metals. T. Moore offered that since there was no definition of recycling in the Town’s zoning the default was to the NHDES definitions.
S. Clark rebutted saying that the legal default was not the NHDES but to a plain and common definition, such as Webster’s Dictionary. He added that use of the NHDES definitions was not binding on the Board.
R. Zukas offered that he felt it was binding as going against NHDES could cause future problems for the Board.
S. Clark added that the Board would not be going over the head of NHDES, just interpreting its own ordinances.
L. Komornick suggested it would be like saying “Oops, we knew but we did it anyway.” She added that if the Board had the information from Attorney Marshall earlier there may have been a different determination made as to the use. She noted that the Board references compliance with all applicable NHDES (and NHDOT – Department of Transportation regulations) regulations that are known to them.
T. Moore offered that he didn’t see what was being done with the computers are traditional recycling.
L. Komornick noted that it was taking apart the computers which could generate a hazardous by-product.
M. Curran added that the Town’s waste management contractors would not pick up monitors or PCs without additional fees because of the need for special handling.
E. Tetler replied that was because they are being recycled.
There was discussion regarding the process of disposing of monitors and PCs.
T. Moore suggested that even in the manufacturing process of new computers there is some scrap generated. He said he didn’t see this as contrary to the spirit and intent of the NHDES definitions. He added that the metal storage was more of a gray area for him.
E. Tetler offered that the metal storage was 35% of the business, but an important part of the business.
Peter Quinn noted that Chart did the same thing when they were in operations.
M. Curran replied that Chart was grandfathered for that use, which was allowable at the time.
T. Moore reiterated that he didn’t think the computer de-manufacturing was recycling, but that he did think the metal waste was. He suggested a conditional approval based upon a variance for the metal use from the ZBA.
 M. Curran moved, second by R. Zukas, to send the applicant to the ZBA for a variance based upon a certain element of recycling and a question as to whether or not this use fits the current zoning ordinance (uses in the Industrial District).
S. Ranlett offered that he agreed with T. Moore as to the metals being a recycling use.
R. Zukas added that they needed to give the ZBA something more to work with as far as a definition.
M. Curran offered that the ZBA would more clearly define the use or restrict the use to a percentage of the site. She said she didn’t think it was up to this Board to decide. She noted the opinion of the Board’s attorney that this is a recycling use.
E. Tetler noted that the issue had been well publicized and talked about a lot over many months and there wasn’t one person speaking in opposition to their use.
M. Curran reminded there were a number of people at the first meeting.
E. Tetler suggested that there had been no opposition since the Board had affirmed the use. He expressed frustration and disappointment with the process to this point and noted that every meeting there seemed to be a new issue of concern. He suggested that if more people had concerns about the use they would be at the meetings.
M. Curran reminded that the first public hearing on this matter was only two weeks ago.
M. Dorman noted as a point of order that if the Board was going to deny this applicant it had to do it cleanly and state the reason clearly so that the ZBA would understand what they are looking at and making a decision on.
T. Moore called the vote on the motion. The vote was 2-2-0 (Moore and Ranlett dissenting).
There was discussion regarding the application. It was noted that it would need to be denied for the whole site plan, not just part of the use. It was noted that the site plan was useless if part of the use was denied by the ZBA.
 R. Zukas moved, second by S. Ranlett, to rescind the previous vote to send the applicant to the ZBA. There was no discussion on the motion. The vote was 4-0-0 U/A.
The Board discussed language for a motion that would properly send the applicant to the ZBA to determine if there is a recycling use and/or make application for a variance to permit such a use.
M. Dorman reminded that the entire application had to be denied and sent to the ZBA since denial of part of the site plan would invalidate the entire site plan. He added that the Board needed to be clear in what they were sending to the ZBA and should be there to support the application.
There was again discussion back and forth regarding the verbiage for a motion that would send the question to the ZBA. The NHDES definitions were read again and there was additional discussion as to what was considered to be the recycling use and what was not, if any. There were board members who felt the separating of the computers was a recycling use and some members who felt it was the metals storage that met the definition of recycling. After a few suggested motions that received no second and much discussion the motion is as follows:
 M. Curran moved, second by R. Zukas, to deny the application based upon new information from the Planning Board Attorney that part of the use may involve recycling and/or transferring of materials, which falls under the NHDES definition of recycling (see Env-WM 102.135; 102.136 and 102.137) and is in violation of current zoning Article V, §220-32A (Permitted Uses in the Industrial District).
There was discussion again regarding what uses are and are not thought to be recycling.
T. Moore suggested that if the majority of the Board agrees that metals storage is the only problem, and they are okay with the computer, that information could be forwarded to the ZBA.
E. Tetler asked if the Board were to give a conditional approval for part of the use would the Building Inspector be able to give a temporary Certificate of Occupancy for the allowed use.
M. Dorman replied that would be up to the Board to decide.
M. Curran suggested that it would be too difficult to enforce and monitor.
Brandt Atkins asked for clarification that the Board was struggling with the question as to whether or not some of the use (the metals storage) was allowable.
M. Curran reiterated that she felt the breaking down of the computers was a recycling use as well. She noted that she made the motion to deny the plan based on it not being an allowable use.
Dick Hawkins, owner of abutting property, noted that he didn’t feel that this was as publicized as Mr. Tetler was saying it was. He said that he had not received notice in the mail. Mr. Hawkins said that he knew that people were interested. He said that he thought people would probably be okay with what is proposed but there were concerns that the property would be subdivided and leased out.
S. Ranlett offered that any other business uses would have to come to the Board for approval.
E. Tetler expressed concern over the lack of noticing.
L. Komornick reminded that notices are only sent for the initial public hearing and not for continued hearings.
There was additional discussion regarding the verbiage of the motion on the floor. It was reiterated that the whole application was being denied in this motion as a partial plan could not be approved.
There was no further discussion on the motion. The vote was 2-2-0 (Moore and Ranlett dissenting).
E. Tetler expressed disappointment with the Board’s decision, noting that it would be difficult for any industrial business to locate in Plaistow.
A. Karas stated that Plaistow owed them money for what the process had cost them.
L. Komornick noted that she had discussed that potential with legal counsel and was informed that the applicants would have to bring a legal action for financial compensation.
There was discussion on the ZBA process and it was noted that a copy of the denial of the plan would be needed to go with the application to the ZBA.
Other Business – ZBA Referrals
L. Komornick noted there were two matters which would need ZBA action, one a cell tower in a residential district and the other was expansion on a non-conforming lot (Seacoast Tent).
M. Dorman request the Board grant latitude for these matters to be referred to the ZBA without a preliminary discussion with the Board.
Consensus was to send both to the ZBA without a preliminary discussion with the Board.
Other Business – Site Walk Westville Road
L. Komornick noted that a site walk was being requested for a site on Westville Road.
M. Dorman added that the Board would be looking at sight distances.
It was decided that the site walk would be scheduled for 5:30 on Wednesday, September 6, before the next meeting.
The chairman adjourned the meeting at 8:12 p.m.
Respectfully Submitted,
Dee Voss
Recording Secretary
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