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Town of |
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Town Council Meeting |
February 19, 2008 |
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Staff Present: Salute to Flag, Warning of Fire
Exits, Handicap Access, Turn off all Cell Phones Roll Call: Consent Agenda 08-23 Acceptance
of Minutes – February 2, 2008 – Special Meeting Consent agenda – Approved Chairman’s Report Regarding
the TA serving on the Planning Board: Town Counsel has given an opinion on
this and TA Stenhouse and Phil Piccolo have requested that Mr. Piccolo
continue on the board for the TA. Town Administrator’s Report Upper
Village Hall Committee Update – Presented by Rebecca Rutter
& Margaret Ives Their
mission is to save The Upper Village Hall. The group recognized the important
historical and architectural value of the Upper Village Hall and advocates
for a public and/or private restoration of this building. Ms. Rutter gave a
historical perspective of the Hall.
The Committee has partnered with Maggie Stier
of the NH Preservation Alliance who will assist the Committee with securing
state, federal and private funding. They
are raising community awareness. There
will be a public meeting at a later date.
Contact info: Rick Holmes 603-434-6042 or email: savethehall08@aol.com. Website: www.savethehall.org Council
asked that agenda item 08-13 Public Hearing be held
prior to item #08-10 all in favor. Public Hearing 08- 13 Regional Public Health Network Grant (Health Dept) Motion to open the Public Hearing
vote 7-0-0 Move that
the Derry Town Council approve the application for, and acceptance and
expenditure of the Public Health Network Grant, in the amount of
$75,000. Motion by: Councilor Ferrante, seconded by Councilor Metts. Vote: 7-0-0. 08-10 Private Roads Ordinance Councilor
Carney author of the ordinance requested that by holding the public hearing
today it gives the Town Council an opportunity to take in what the public has
to say and has asked for Council discussion and vote at the next
meeting. Referenced a Supreme Court
case Hersh v Plonski. His reason for having the 100% residence
agreement is that he does not want anyone living on a Mike
Fowler commented that the Public Works Dept has a vested interest in this
from a maintenance standpoint for them. Atty Boutin explained this draft
ordinance doesn’t take away anyones right to
petition under the Town Charter or the State law for layout of a
highway. Anyone who can’t get
unanimity still has an avenue. Motion to Open the Public Hearing Vote:
7-0-0 Paul
Kimball, Nick Arancio, Wayne Curto, Lakeshore Ave – Mr. Kimball has sent the Town
Council numerous amounts of information regarding RSA’s,
and reasons why our road should be accepted by the Town. If you look at the Regine Bley, Collette’s Atty Boutin replied, “It depends on
which road you are petitioning for. If
not petitioning for the road you front on then you are probably not part of
it. But if petitioning for the road
that you are fronting on then you are an abutter. There is a provision but depends on facts
that I do not know here. But the
ordinance says that it has to be unanimous even though part of the road is
subject to the petition and part of the road isn’t. Because downstream could be effected by the
petition. And this is really an
abbreviated process. Unanimity is a
way to assure the Council that if they get this done they are not facing the
typical appeal that would occur in a traditional layout. I would need to know specific facts about
your situation.” Regine Bley, “I don’t have frontage on
either of those roads but I have a vested interest in which way either one of
them go.” Atty Boutin,” I don’t see you as an
abutter. But it’s something to think
about. It maybe a
situation that we need to take a further look at.” Regine Bley other question in adequacy
when you do a petition and there are inadequacies or the petition does not
get approved who handles those inadequacies? Will they be absorbed by the Town’s budget
or are they going to be assessed to the actual abutters. Councilor
Carney,” that depend on if the road was accepted or not. Accepted it would be the Town’s
responsibility to deal with those issues.
If it wasn’t it would be the property owners. “ Regine Bley, “Would you continue to
snow plow and provide the cold patches that has been provided for the last 40
years?” Councilor
Carney,” the legal opinion that we have states that we cannot.” Atty Boutin stated that, I would
qualify that by saying the Town still has option of doing a layout for Winter
Maintenance by assessing a fee for plowing a road that remains private. That’s a possibility. Al Dimmock, Maureen
Rose, Kerry
Reid, Collette’s Grove Rd- Issue with Fire and Medical emergency the road has
been virtually impassable. Slated as
an emergency lane and the Town said they could get through. She doesn’t believe this as there are two
foot craters down the road. Abutters
issue does not have any frontage on Collette’s Road. The Grove is filled with lanes; there are
approximately 50 homes that do not have frontage. Yet I do not have a say whether these roads
become private. The only way in/out is over these roads. Atty Boutin, “Collette’s Grove is an
interesting situation and I am not sure, it would probably come out in a
petition that if the association were the petitioner, then the problem of
frontage is really not an issue. I do
not know if the association controls the roads and if they do then the
petition involves all of the roads.
That’s something that would have to be looked at if a petition was
brought in and considered on that basis.
I just don’t have the facts to go further with this. Ronald
Patrick, Collette’s Dana
Barney Collette’s Joan
Cornetta, Lisa King
Turner, Collette’s Paul Hopfgarten, Joe Dichiaro, Judy Taneau, North Shore & McKinley Ave – Owner of two
properties. Has been here since 1968 and
has been to Council meetings regarding this situation. Getting potholes where sewer line is. If
Paul Kimball is going to court with this, I am too. Nick Arancio, Chairman
Bulkley – The roads that this ordinance is designated to deal with are
currently categorized as private roads.
They are not public roads, they have not been
accepted by the Town. Nick Arancio – Then why has the Town been taking care of the
roads? Councilor
Carney – is accurate and there has been mismanagement of this process for
years and years. That’s why I think the people on this council now are
committed to coming to some sort of resolution. Nick Arancio – Is it money? Councilor
Carney – some of it is State laws.
Some of it is finance and some of it isn’t. Once one road wants to become public, it’s
only fair to look at them all. Chairman
Bulkley – the Council is here to listen.
The fact is that there were roads in Town when they were built that
were private just as there are today in developments. Developers today know that if they want
their road to be public they have to build it to Town specs. When they build their roads that’s what
they do. Unfortunately those rules
didn’t necessarily exist back when the Town was growing out of the 1800 &
1900’s long before we were keeping records of the roads in Town. What Councilor Carney is trying to do is to
treat everyone fairly with the same set of rules and try to deal with this
once and for all. The Council has
dealt with this several times. Nick Arancio- Why can’t you say if you’re building a road
these are the rules you need to follow.
Everything before that accept, and start with
a clean slate. Ronald
Patrick, Collette’s Wayne Curto, Lakeshore Ave – “I don’t think we want the Town to
come in and do a huge construction project and rebuild the road, all we are
asking for is the Town to go in repair the roads so that they are
passable. Our road failed because when
they put the sewer line in they only put 2” of asphalt in the road. The culvert was put in incorrectly. It goes under the road. Just fix them so that we can pass safely
and emergency vehicles can pass safely that’s all we’re asking for.” Paul
Kimball, Al Dimmock, Councilor
Carney replied absolutely they count.
My concern when I speak about finance of this issue is more about what
happens if we have to accept at a level that makes these all paved roads and
placing an enormous burden on the taxpayers all up front. I’m not saying that if we accept these
roads we can’t look at maintaining them at current levels. There has to be some thought based on these
issues and the cost. Kelly
Rosen, Collette’s Dan
Abate, Collette’s Christine
Arancio, Motion to close the Public Hearing
Vote: 7-0-0 Council Discussion Councilor
Atty Boutin – he was addressing the
statue regarding winter maintenance of these roads. The Council can lay out roads for winter
maintenance the statue says that there would be damages assessed on an annual
basis as far as a rental. That says to
me that the Town has to assess something.
It has to be equitable. There
is only a certain layout to be a public road.
You don’t have that pedigree.
What the ordinance tries to do is establish the pedigree. I’ve heard a
lot of things tonight and most of the things that people are saying are
elements of those things that if they filed a petition would be considered by
the Council and would probably be considered by the Council as acceptance or
layout. Councilor
Coyle – Council Carney started off reading from a recent case and he left out
a portion for legal standards for acceptance.
One of the things that this ordinance says is we won’t consider
removing of snow but that case specifically says the one of the things that
should be considered is removing snow from it or assigning police patrols to
it or repairing it. We probably have done that illegally but those are things
of acceptance. I know Brent has worked really hard on this ordinance but
frankly we are setting people up as many people have said for failure. We will accept very few of these
roads. I don’t think that this is the
right way of doing this ordinance. Some of the roads on Councilor
Carney- Do we have the legal authority to accept these roads as is without
having to upgrade them. Atty Boutin- that was the real issue
when we went to court with Councilor
Carney- But there is no immediate obligation to upgrade or pave them. We can take them into the regular
maintenance. Atty Boutin – it depends. I would say no but I want to qualify that
because there could be conditions that are such that, that is what you would
have to do. I just don’t know if that
circumstance exists. Councilor
Metts – “I can understand everyone’s problem with the 100%. Any road that the Town has put sewer in has
been given to the Town. The Town has
taken and accepted it by putting that utility in it. Whether it’s going to be a 24 ft Class V
road, I don’t believe those will ever happen but I think with those roads,
those are ours. All others can be
taken on a case by case basis maybe with something similar to this ordinance
maybe with something entirely different.
Some of the other roads or lanes laid out in the Collette’s Grove area
it’s hard put to have a 10ft road in some of those places. Those would need a
long hard look to make those accepted as part of our road program but a
maintenance program, plowing, gravel maintenance I would have no problem
doing . At least we have something to
start with. It may or may not with adjustments. But roads that we have put utilities in and
I know I’m not a lawyer but the way I read it we own those roads. That’s an
implied easement and ownership.” Atty Boutin – it really depends on
whether or not the sewer is in there because you obtained an easement which
the legal significance is that you have an easement for the sewer and nothing
else. If you didn’t have an easement
and you put the sewer in then that is a horse of a different color and it may
have greater legal significance. Chairman
Bulkley – It seems to me that there is enough of a difference of opinion on
this ordinance that it might be good for the TA to work with the PW Director
and poll the Council and see if there is any consensus view relative to some
of the issues that have been talked about tonight. It can be reagendized
for March 4th if there seems to be a clear example of acceptance
of the roads that have sewers in them versus some other method, and Mike
Fowler is going to have to provide the Council with some sense of a cost,
since we are about to face a difficult budget process. This will only add to this. We appreciate the fact that you only want
us to fill potholes and fix drainage. There are certain liability issues when
the Town accept roads and might require certain maintenance to occur above
and beyond that in order to protect the Town’s liability. So that there are a
number of factors that play into this and we will try to pull that
information together for the next meeting. Councilor
Carney – I think after tonight I am not necessarily opposed to discussing
changing that requirement from 100% to something else as long as we are able
to incorporate the opinions of those people who live on private roads who
want to remain on a private road. We
need to somehow incorporate their opinions into this. Secondly, I would like to ask Mike Fowler
to put together some numbers as far as what the cost would be to the Town if
we were to take on the roads that we put sewers on and working them into the
normal maintenance routine that the rest of the roads in this Town have to
come across. Councilor
Ferrante – Wanted legal clarification and it had to
do with Atty Boutin - That was the real
reason why the Town was there in the first place. If the Court would have held that the Town
would have to bring those roads up to standard it was a $900,000 hit. We went in and asked the Court that if they
upheld that is was a public road, that they not impose that requirement and
that the road is left essentially in the same condition. What we were worrying about was stepping
into a dispute among neighbors because the right of way if we improved it was
on their facilities, things that they have put down it frankly would have
been years of hassle. With a court judgment,
we could then live with what the court said and it didn’t require very much
of the Town except to record in public status and plowing and pothole fixing. Councilor
Ferrante – so therefore it’s an entirely different
situation. I constantly hear Atty Boutin – I wouldn’t say
that. Some of the things that the
Court said were pretty well recognized, in fact certain things having
happened led the Court to conclude that those roads had been accepted. There
was never a doubt that they were dedicated. In these cases I have no idea if there is
even evidence of proper dedication. No
they don’t necessarily parallel. But
one of the things we did in the Ordinance that Council Carney made was to
take those things that the court recognized and actually put them in as in a
case where someone came in and could produce some evidence of those would be
factors in favor of granting the petition. Councilor
Chairman
Bulkley – We are putting it on the next agenda and after that it’s up to you. 08-18 Green
Vehicles/Green Buildings Initiative Motion to Open the Public Hearing
7-0-0 John Burtis, Tom Minnon, Erin
Fillmore, Main St Hampstead – Student of Pinkerton Academy representing SEA
(Students for Environmental Action). They
are in support of the Green Vehicles/Green Building Initiative. Appreciates that Town looked into this. Neil Colious, Bryant Lane- What would some of the upfront capital
cost be if the Taylor Library and new kindergarten were to be LEED certified? Has anyone done a lifecycle cost analysis
of what the payback time would be? Steve
Wallach, Birchwood Dr – His opinion is that the Town should do it on a cost
basis project by project. Elizabeth
Ives, Al Dimmock, Maureen
Rose, Margaret
Ives, Paul Hopfgarten, Fairway Dr - When Green is cheaper everyone will
go Green. Dan
McKenna, Fairway Dr – Understands staff is concerned with a 2% cost increase
over traditional building construction.
To meet LEED silver certification there are many different options
which you can use to gain those points.
Need to look at long term cost and effects of this ordinance. Kelly
Mahoney, Jack
Dowd, Sundown Rd – Agrees with Green.
His only question is the ordinance itself - does the Town need this
ordinance and why not a policy instead. John Burtis, Tom Minnon, Erin
Fillmore gave Town Council signatures collected from Motion to Close the Public Hearing
6-0-0 (Councilor Chirichiello absent from vote) Council Discussion Councilor
Carney – clarified his ordinance in regards to vehicles and buildings to
answer questions and statements made by the public. Councilor Carney requested to make a
motion. Chairman
Bulkley suggested continuing the discussion at the next meeting. Overruled. Councilor
Carney suggested an amendment to the ordinance to give the Town more
flexibility than silver standards. Amendment
to Ordinance II. Construction | |