APPROVED

TOWN OF PELHAM

BOARD OF SELECTMEN MEETING

MINUTES

October 1, 2002

APPROVED – October 8, 2002

CALL TO ORDER

PLEDGE OF ALLEGAINCE

Chairman Farris opened the meeting at approximately 6:30 pm. 

MINUTES REVIEW

September 24, 2002

The amendments to the minutes were as follows:  page 2, 3rd paragraph, 4th line, the word ‘slab’ will be added in front of the ‘work’ (‘...extreme difficulty finding bidders for the slab work’). Page 3, last paragraph, second to last line, the remaining sentence after the words ‘thinned out’ shall be deleted and replaced with the words ‘, which was an adjacent property, not his own.’  Page 5, paragraph 5, 1st line delete the word ‘that’ which had been typed twice.    

OPEN FORUM

Mr. Darin Pinettee, 39 Woekel Circle discussed his property, specifically the drainage.  He said that when he purchased his property ten years ago he had water in his yard and when the Town paved the road five or six years ago the water then came into his lower level, which is finished.  He said the catch basin’s drainage pipe was not working and after discussions with Mr. Don Foss, Highway Agent, the pipe was changed.  He said the new pipe was approximately one inch under the tar and froze solid in the winter months.  He said after further discussions with Mr. Foss a swale had been cut into the road, which solved his problems during the past mild winter.  Mr. Pinette said that his neighbor had installed a stockade fence 18” from the edge of the road, in the drainage culvert, which would block the drainage.  He said the person that installed the fence put the waste into the drainage ditch.  He said on August 18, 2002, his father contacted Mr. Roland Soucy, Building Inspector to try to rectify the problem and take the fence out of the drainage ditch.  He said there had yet been no results after numerous phone calls.  Mr. Pinette informed that in the morning the Highway Department had filled in the swale with tar due to an anonymous phone call that a child had been injured.  He said there was no doubt that his house would now flood.  He said that Mr. Gaydos told him that the Highway Agent would make the determination if his home would flood, and if it did flood, the situation would then be rectified.  He did not feel the answer was acceptable.  Mr. Pinette felt that since the Highway Agent saw there was a problem and made the swale that it should not be filled in with tar now.  He questioned why the Town acted in this manner based upon an anonymous call.  He suggested making the swale approximately 25’-30’ so that the incline would be gradual. 

Mr. Farris said that based upon what was being said, the Town had previously accepted the fact that water was flooding into Mr. Pinette’s home, but now Mr. Pinette had to show the Town that water was flooding his home.  Mr. Gaydos said that after his conversation with Mr. Pinette, he went to the site and viewed the swale.  He said the water flow needed to be reviewed, but did not intend to give the impression that Mr. Pinette’s basement would have to flood before action was taken.  He said the site had some inherent problems that needed further review by Mr. Foss.  He said the commitment made was to make the situation right.  Mr. Farris asked that the placement of the fence post also be reviewed.  Mr. Gaydos said that he and Mr. Foss would review the site.  Mr. Pinette reiterated his concern with his finished lower level and the flooding he knew would happen if the situation was not fixed. 

Mr. Derby noted that the fence, if it was 18” from the road may face the possibility of coming down during snow plowing.  He said the water flow from the swale may cause the installation of a special receptacle on the other side of the street.  He was unsure if there would be a quick remedy.  Mr. Farris said he would like to know the source of why the asphalt was added.  Mr. Gaydos said that he had left a message for Mr. Foss and expected a call back in the morning.  Mr. Pinette said he would be available to meet with Mr. Foss and Mr. Gaydos.     

APPOINTMENTS

Discussion of draft technology plan, Victor Danevich

Postponed until October 8, 2002. 

Discussion of Planning Department Report, John Bobula

Mr. John Bobula. Planning and Zoning Consultant met with the Selectmen to report on a phase one project he had been working on.  Mr. Bobula reviewed the report for phase one, which outlined an organizational review of the land-use services in Town.  He said that phase two of the project would be to form specific recommendations.  He went on to explain the need for information to be properly sorted and stored.  Mr. Bobula said that in phase two, specific recommendations by the Selectmen and Town Administrator would be developed based on the information gathered during phase one.  He said the two-phase approach had been developed so there would be an opportunity to stop after phase one and see which direction the Selectmen would want to take.

Mr. McDevitt asked for examples of what was expected to come out of phase two, such as how a unified filing system could be achieved.  Mr. Bobula said to begin with, there needed to be a simple mission statement that described the policy and objectives of providing land-use administration, which was the principal by which the system would be executed.  He said having a unified file system would be recommended and within phase two he would provide a road map for achievement. 

Mr. Farris said there had been past discussions regarding filing systems and wanted to know if files could be stored on electronic media.  Mr. Bobula said that DVD storage would be an enhancement because original files were needed in land use matters.  He explained the filing system implemented in Gilford, which he felt would also work for the Town. 

Mr. McDevitt said that he was seeking specific recommendations that would be easily implemented between the land-use departments.  Mr. Bobula said that departmental responsibilities were a key issue that should be folded into the outline for phase two.  There was a brief discussion regarding the objectives to be reached and the options to reach the specific goals.  Mr. Bobula felt that he could draft the phase two objectives and outline for the Selectmen within fifteen days for a cost of $1000.  Mr. Farris said that Mr. Bobula would need to meet with Mr. Gaydos regarding the procurement of items, such as filing cabinets.  There was a discussion that lead to a consensus by the Selectmen to move forward with phase two of Mr. Bobula’s plan.         

OLD BUSINESS

Junkyard License Application, Jean-Guy Bergeron

Mr. Bergeron addressed the Selectmen regarding the abutter notification that had taken place for the meeting taking place.  He was not aware that the Selectmen sent notices for such proceedings and wanted to know if there was a new procedure in place for notifying abutters.  Mr. Farris said the only conclusion that he could determine was that during the prior meeting Mr. McDevitt wanted to ensure that the neighbors were aware when the Selectmen would be discussing the renewal of Mr. Bergeron’s license.  Mr. McDevitt said that the agenda from the last meeting did not specify whose license the Selectmen would be discussing, which was inconsistent from the format of past agenda items.  He said it was not his intention that letters be mailed to abutters.  Mr. Gaydos said that from the discussion at the past meeting he wrote a note that said ‘people should know’, and in turn drafted a brief letter to abutters informing that the Selectmen would be discussion Mr. Bergeron’s renewal application.  He apologized for his incorrect interpretation of what was discussed at the past meeting and also apologized if he had done something that was unfair to a particular party. 

Mr. Bergeron stepped down. 

Mr. Farris recapped the previous meeting in which a letter from DES (dated April 8, 2002) was reviewed which contained several points and requirements of Mr. Bergeron.  He said it was requested that Mr. Bergeron address, in writing, the points contained in the DES letter.  Mr. McDevitt reviewed a portion of the minutes from the Selectmen’s September 24, 2002 meeting, which requested that Mr. Bergeron provide the Selectmen with a response of progression for the items listed in the DES letter. 

Mr. Jean-Guy Bergeron, President of Jean-Guy’s Used Cars and Parts met with the Selectmen to discuss his license renewal application.   He informed that his attorney would arrive at approximately 7:30pm, but that he would begin discussions.  He discussed his understanding from the last meeting, which ended with Mr. Gaydos contacting DES to report on whether he was in compliance with them.  He said Mr. Gaydos had provided him with a letter from DES dated September 27, 2002 which stated everything.  Mr. Bergeron noted that DES said they had not received the water tests done by US Water.  He said he contacted US Water to find out why they had not sent the tests and was informed that indeed the tests had been forwarded to DES.  He said as far as he was aware,  the points listed in the DES letter were being addressed.  He said that he continued to work with DES. 

Mr. Farris reviewed the September 24, 2002 DES letter and asked if the required steps were being taken to ensure that additional gasoline would not be released into the ground.  Mr. Bergeron said he recently met at his facility with members from DES, a person from EPA, and his attorney to discuss the items in the September 24, 2002 DES letter.  He said that treatment filters had been installed so that the water that came out of his three wells was purified.  He said there was no MtBE coming out of his faucets.  Mr. Farris asked if a procedure had been put in place for siphoning and inspecting gasoline tanks.  Mr. Bergeron said that a procedure was in place so that when gas tanks were removed, they were totally drained inside on cement.  He said once the tanks were removed, they were brought outside and placed into trailers so that they would not weather while waiting to be transported.  He said that he had contracted with a company in Merrimac to build a machine that would siphon most of the gas out of the tanks. 

Mr. Farris asked if the October 15, 2002 deadline set by DES for the pavement storm water collection system plan, and a letter documenting the sites progress and implementing the additional release prevention measures would be able to be met.  Mr. Bergeron understood that the October 15, 2002 deadline was to provide a response.  He said that October 9, 2002 soil would be taken out as part of remediation.  Mr. Bergeron’s attorney, Tony Soltani arrived.  Mr. Farris confirmed that the storm water plan would be at DES by October 15th.  Attorney Soltani said there had been discussions to determine if the site qualified as a storm water head source.  He said that a consultant has been retained to determine if the site qualified, and if it is, retention methods would be reviewed.  Attorney Soltani noted that the paving was Mr. Bergeron’s idea.  He said the DES has asked that the paving not be done until they determined where the monitoring wells would be placed.  He said they had now been informed that the paving would not interfere with the monitoring wells, so paving could now be done.  Attorney Soltani discussed prevention measures and noted that Mr. Bergeron purchased a machine that would siphon the gasoline out of the tank.  He reiterated that the paving was Mr. Bergeron’s idea and DES had initially asked that it be delayed, and was now saying it was okay.  Attorney Soltani said another inaccuracy in the letter was that a system should be installed for storm water runoff.  He said that there was more than one storm water runoff area which had nothing to do with the proposed paved area.  He said their consultant advised that the site fell within the permitting process and would therefore need some sort of silt retention. 

Mr. Farris confirmed that a response would be given to DES.  Attorney Soltani said that a response would be given for what is asked, not what was mistakenly restated in the letter.  He said they had asked the following independent questions: 1) what would be done in the area around the shop, 2) what would be done regarding the storm water retention, and 3) suggested a variety of things, such as siphoning the gas tanks and have the ability to inspect them.  He said the previous request was for AST registration, which had been retroactively approved and registered. 

Mr. McDevitt reviewed a section of the DES September 27, 2002 letter which stated that there had been on-going releases of gasoline during samples taken in the summer.  He said that DES seemed to indicate that the thing which caused the problem to begin with, had not stopped.  Attorney Soltani said that based on the reading there may be releases of 1-5 gallons at the site occurring at unknown locations, which DES could not determine where.  He said some people from DES also felt that some of the spikes were from recent rain and/or storms, which would force the flow of the underground water into different areas.  He said the findings were not a unanimous consensus.  Mr. McDevitt’s assumption was that the letter was unqualified in its statement.  He was concerned with the amount of gasoline found to be released since the site was under scrutiny by DES.  Attorney Soltani said he wished he had an answer to categorically deny the statement, but at this time did not. 

PUBLIC INPUT

Attorney Mark Gruvallis, MacLaine Law Firm, representing three neighbors (Russell, Bellville, Gagnon) of the junkyard who have contaminated wells.  He commented about the current standard of operation, and felt it was inconceivable that an individual who handled gasoline was not conducting their business in a way to minimize/prevent its release onto the site.  He said as a general proposition, he was in favor of allowing Mr. Bergeron’s business to continue, subject to him doing everything in his power to prevent the further release of gasoline.  Attorney Gruvallis urged the Selectmen to keep after Mr. Bergeron so that the problem continued to be addressed and was not made worse. 

Mr. Paul Bergeron, Marsh Road said that he lived directly across from the junkyard.  He said he had water runoff coming into his yard and had a very low count of MtBE.  He questioned why he didn’t have more of an MtBE count.  He blamed the government for the contamination.  He felt that Mr. Bergeron’s junkyard was being picked on.  Mr. Bergeron noted that there were other sites in Town that the DES was not reviewing.  He noted that there were also problems with residents leaking gasoline into the ground from household equipment. 

Attorney Soltani wanted to clarify that the procedures in place at the site require the vehicles being dismantled to first be drained of all fluids on impervious surfaces, which had been going on for quite awhile.  He said that the siphoning equipment was a last-ditch effort by DES to take any remaining gas out of the tanks.  He said there were varying opinions regarding where the 1-5 gallons was coming from.  He said the amount of MtBE that was showing up was nominal and believed it could be explained by underground flow.  He did not believe that there had been any spillage at the site, and questioned how to prove a negative. 

Mr. McDevitt addressed the question of if Mr. Bergeron was being picked on.  He discussed the Gendron case, which went to the New Hampshire Superior Court and the verdict upheld the Town’s decision that the site was a public nuisance.  He asked why the Bergeron junkyard was not a public nuisance.  Attorney Soltani noted that in the Gendron’s case, Mr. Gendron had overtly invaded and occupied another person’s property and dumped over 10,000 pounds of toxic waste.  He said a nuisance would require that a source be identified and not abated.  He said Mr. Bergeron’s case was not a public nuisance since there were other considered sources of contamination.  He said the site was not overtly invading other sites, and the theory was that the invading was underground.  He said if there was any invasion, it had ceased.  Attorney Soltani didn’t feel there was sufficient evidence to revoke the license on the basis of public nuisance.  He said the EPA established 13 parts per billion of MtBE for public relations purposes and there was no evidence/scientific data that showed MtBE as adverse to human health.   

Mr. Aram Jeknavorian, Carol Drive said that at the time his home was built, there was no MtBE in his drinking water.  He said he now had a treatment center in his cellar that was noisy and howled every time he turned the water on, even for a glass of water.  He said the equipment sweats in the summer, which made it difficult to keep his floors dry.  He said it was yet undetermined what effect the junkyard had on his land value.  He said there were fourteen other homes that also had treatment centers.  Mr. Jeknavorian said it was not his fault that a non-conforming business was allowed to operate, and continue to add other non-conforming businesses.  He said regulation was a big management operation and questioned whether the Town had the time and training to inspect the operation.  He suggested that unannounced inspections occur throughout the year and waste management training for the facility.  He questioned if the operation would be able to safely continue and comply with DES requirements. 

Mr. Farris said that the perception that the Selectmen were picking on Mr. Bergeron was ill-conceived.  He said the point was that Mr. Bergeron ran a business in Town and to obtain a license renewal he had to comply with certain regulations of the Town and state.  He did not feel that it would benefit the neighbors to shut the business down.  He said as long as the business operated there would hopefully be a correction of the neighbor’s water.  He agreed that the Town needed to be diligent.  He said the Gendron site was a different situation and had a different solution.  Mr. Farris said that the license renewal had now been extended for two 90-day periods.  He said he would like to see the results from the most recent water samples.  He believed that Mr. Bergeron was continuing to comply with the requirement of the DES. 

Mr. McDevitt made a motion to grant Mr. Bergeron’s license providing that he submit written reports of compliance on November 1, 2002, January 1, 2003 and April 1, 2003, and to allow inspections, without notice, during normal business hours by health and code officials of the Town of Pelham.  He said that the inspections were not to harass, but to gain information.  He said there would be a reasonable number of inspections.  Mr. Derby seconded.  He didn’t understand how levels could spike during a year with no rain.  Mr. Farris said he would like to see any water sampling test results on the dates specified by Mr. McDevitt.  Attorney Soltani said the water test dates may not meet the dates specified. 

Mr. Bergeron noted that DES had cc’d the Selectmen and various other people on the reports generated, which were sent out on a regular basis.  He said in the past when issues involving DES or MtBE, the Selectmen have noted that they didn’t have jurisdiction.  Mr. Bergeron stated, as he had in the past, that he was applying for a renewal of an application for an automotive recycling license, and per the RSA, a renewal did not require a public hearing.  He said he had paid the renewal fee every year since 1969 and felt he should get an annual renewal.  He said that he had been working with DES and had also done things that he wasn’t asked to do.  He said he would like to work by the law of the state, which was to renew by April 1st.  He felt the Town could do something different than an annual renewal if at any time the DES informed that he was not cooperating.  He didn’t feel that bringing him forward every three months was fair since he had been cooperating.  Mr. Farris noted that the motion would be granting the license until April 1, 2003.  He reiterated motion and the provisions specified.  He believed if the provisions were followed that Mr. Bergeron should be able to be granted his annual license in April, 2003. 

Mr. McDevitt said that public hearings were held due to the Town adopting a new health ordinance.  He reviewed RSA 236:121 (regarding the regulation of junkyards) and believed that the relevancy of the ordinance was in the text that states ‘....if all provisions of this subdivision are complied with during the license period, if the junk yard does not become a public nuisance under the common law or is a nuisance under RSA 236:119.....  He said that he was going to make a motion to deny the license based upon public nuisance, which he had confidence would hold up in court.  He felt that the greater public good was to ask for the reports and have unannounced inspections. 

Mr. Bergeron said that his understanding was that RSA 236-119 was for a new license and did not apply to the facility he owned and operated which started in 1953 (prior to zoning) and had been renewed each and every year.  He said there were two different facilities, one that was licensed by the Town, not the state at the Marsh Road address, and the other was an agreement that the Selectmen went into, which he felt should be dealt with as the agreement, not a salvage operation.  Mr. Bergeron asked that counsel research RSA 236:119, which he felt was applicable to someone wanting to start a brand new facility.  He reiterated that his facility had been operating since the 1950’s and the license renewed each year and did not need public hearings.  He said he had participated in the public hearing and said it would be nice to operate under the RSA’s. 

Mr. McDevitt discussed the Gendron case that went to the Superior Court.  He said that the renewal had been denied based on being a public nuisance and the Superior Court upheld the Town’s decision.  He read a small portion of the case aloud that pertained to RSA 236:111 and 117.  He felt it was clear that state law gave the Selectmen the right and obligation to go through the process being conducted with Mr. Bergeron’s license renewal.  Mr. McDevitt wanted to know if the motion was acceptable with Mr. Bergeron.  He said that Mr. Bergeron could wait until the next Selectmen’s meeting to make a decision.

Mr. Farris said it may seem that the Selectmen were being over cautious, but he believed that if they weren’t, they would be accused of granting Mr. Bergeron a license because he was a Selectman.  He said that a lot of times, public officials went through more scrutiny, even though it was not fair.  Mr. Farris said he believed the motion was fair.  Attorney Soltani informed that the motion annunciated things that they already did.  He said there was already an open-door policy for inspections.  He said that they would furnish the latest data available to the Selectmen.  Attorney Soltani said the motion was acceptable. 

Mr. Bergeron rejoined the Selectmen.

Municipal Building

Mr. Gaydos informed that per the discussions the Selectmen had the previous week, three people contacted him to volunteer, one of which indicated he was not interested in volunteering.  Mr. Bergeron discussed the background of one of the volunteers.  He said that he heard of the person through a state representative and explained that the person had worked alongside the clerk-of-the-works on a large project in Hudson.  He said the projects the person had worked on came in under budget and on time.  The person discussed with Mr. Bergeron the importance of having someone ‘oversee’ the project, and provided him with specific examples.  Mr. Gaydos said that he had spoken with the gentleman and explained the type of project being done.  He said he would go forward based on the applicants received. 

Mr. McDevitt was not clear how the volunteer’s position would work and how differences would be resolved.  He brought up the fact that Bread Loaf guaranteed their work for phase two and may possibly cease if the Town’s volunteers advised them (with Selectmen approval) to design something differently.  He wanted a clear definition understood by the Selectmen before any volunteer was interviewed. 

Mr. Farris thought that the volunteers were going to be double checking the spec items to ensure what was called for was being implemented.  He agreed that the volunteer responsibilities should be clearly defined before interviews started. 

Mr. Gaydos said that he had drafted a system for weekly meetings in which the Town would review the specifications within Bread Loaf’s report and the proposed plan from the bidder to cross check and ensure that the bidder’s proposal met with the specifications.  He wanted to know who the volunteer person would report to since there would be weekly meetings held.  He believed that the inspection process may be a lot for a volunteer to handle between now and the expected end of the project in June.  He said the management team of department heads would be capable of reviewing proposed plans. 

Mr. Bergeron reiterated his position and belief that the Town needed someone to oversee the project. 

Mr. Gaydos noted that he had received only one correspondence from a person interested in removing the playground equipment.  Mr. Farris told Mr. Gaydos to move forward with the request.  Mr. McDevitt wanted to make sure the person would be removing all the equipment.  Mr. Gaydos said all the equipment would be removed and the person would sign a waiver of liability for the removal and use of the equipment. 

Mr. McDevitt proposed a ground-breaking ceremony to be held Sunday, October 20, 2002 at approximately 2pm.  He said that Pelham Community Spirit Group had volunteered to help run the event.  There was a brief discussion regarding the proposal.  Mr. Gaydos said he would work out the details and discuss at the next Thursday meeting with Bread Loaf and department heads. 

Mr. McDevitt reminded the Selectmen that the Municipal Building plans would be reviewed by the Planning Board on October 7 2002.

NEW BUSINESS

Award of Storm Water Engineering Services

Mr. Gaydos said that the EPA had identified that the Town had to come into compliance with the Storm Water Management Plan.  He explained the permitting process which would be ongoing.  Mr. Farris noted that the storm water plan was a Federal unfunded mandate.  Mr. Gaydos said after reviewing the applicants, TF Moran was recommended.    

Mr. Gaydos informed that he gave NRPC the recommendation to work with Mr. William Hayes to make an application for a grant in the amount of $46,500 for planning at Raymond Park.  Mr. McDevitt said that he appreciated the work Mr. Hayes was doing.  The Selectmen were in favor of Mr. Hayes seeking the grant with NRPC. 

TOWN ADMINISTRATOR’S REPORT/SELECTMEN’S REPORT

Mr. Bergeron asked how e-mail was received through the Town’s website.  Mr. Gaydos said that from time to time his secretary pulled e-mail off the internet and made copies for the Selectmen.  Mr. Bergeron asked that the e-mail process be reviewed to ensure that e-mails sent were being directed to the proper recipient.  Mr. Gaydos said he would review the procedure. 

Mr. Derby said he had been asked why the Cemetery did not have a section on the Pelham Web page. 

Mr. McDevitt showed pictures of the lower parade field at Elmer G. Raymond Park now that it had been seeded.  He said a program would be held in Concord Wednesday, October 9, 2002 that would discuss traffic calming and round-abouts that he would try to attend.  He said the Budget Committee met and said that the two major issues were first, the telephone systems and if they could be transferred to the new Municipal Center, and second, the BMSI software.  Mr. McDevitt said that a complaint had been received regarding the trash at Muldoon Park located in the back portion near the children’s park.  Mr. Gaydos said he would review the issue.  He said the steering wheels on the fire engine play equipment needed repair. 

Mr. Farris noted that CTAC would hold a meeting to discuss the rebuild and the ongoing contract negotiations.  He said the Police were continuing their efforts successfully with four-wheelers at the Town parks.  He said the next issue would be to determine what to do with the new fields in the Tennessee Gas area.  He said he would discuss the situation with Mr. Bob Tryon, Park and Recreation Director.  Mr. Farris said a wedding was held on the Town common and was a beautiful event. 

Mr. McDevitt said an e-mail had been received regarding concerns with the message board.  He asked that Mr. Gaydos draft a response once he returned from vacation. 

REQUEST FOR NON-PUBLIC SESSION

Mr. Farris noted that when the Board returned, after the non-public session, the Board would not take any other action publicly, except to seal the minutes of the non-public session and to adjourn the meeting.  The Board entered into a non-public session at approximately 9:30pm.  Mr. Gaydos was also present during the non-public session.   

The Board returned to public session at approximately 10:50 pm.

ADJOURNMENT

MOTION:           (McDevitt/Bergeron) To adjourn the meeting.

VOTE:                 (4 - 0 - 0) The motion carries. 

The meeting was adjourned at approximately 10:50 pm.

                                                                                          Respectfully submitted,

                                                                                          Charity A. L. Willis

                                                                                          Recording Secretary