[Deering Zoning Board Of Adjustment
762 Deering Center Road
Deering, New Hampshire
Minutes of the Meeting
December 18, 2002
Deering Town Hall
UNAPPROVED
Called to Order: By the Chairman, John Lassey, at 7:10 p.m.
Roll Call: Chairman John Lassey, Joe Lauzon, Larry Sunderland, Bob Fuller, Doug Craighead, and clerk Debbie Matthews.
Members of the Public: Carroll Greene, Atty. Robert McKeel, Shelley Nelkins, Betty Greene, Ken Pierce, Mary Pierce, Dave and Jane Crowley, Michelle Johnson, Keith Johnson, Winthrop Bartlett, Jeanne T. Bartlett, Pam Greene, Bob Greene, Lisa McAlister, Theresa Hemenway, Linda Feather, Edward Cobbett, Peter Beard, Lou Ellen Beard, Thomas, J. Copadis, John Christensen, Lisa Christensen, Muriel MeAlister, Melissa Donovan, Heidi J. Feather, Joan Hemenway, James Greene, Lloyd Henderson, Dan Donovan, Robert T. McWalters, Gary Bono, Leesteffy Jenkins, and court reporter Dawn Griffin. There were other people there, but they didn t sign the paper they were asked to sign.
John Lassey council for Mr. Greene, Mr. Robert McKeel is an attorney in New Hampshire and has brought to my attention that my law firm has a business relationship with him personally and that he is a client of the firm. I disclosed this fact to Ms. Jenkins and now I m disclosing it to everyone in the room and I think the question is does this create a conflict that interferes with my sitting as a member of the board on this matter. I can say that I have known Mr. McKeel for over 20 years though usually we re on opposite sides of a case. Nonetheless this issue has been raised and I ll hear comment from anybody who has anything to say about it as to whether I should continue to sit as a member of the board. From a practical standpoint, we have five people here, that s a full board.
One of us is an alternate, Joe Lauzon, who will be leaving for a warmer climate within a couple of weeks, and that will leave us four. It takes three affirmative votes to pass any resolution, including any findings in favor of either party in this case. As a practical matter, it means that the applicants need to get three votes and that means 100% of the three who are left should we vote to go past tonight, if I m not sitting. If it goes over tonight and the board has to come back either to continue the hearing or come back later on to deliberate, in other words is not able to reach a decision tonight, then, under those circumstances, you would be left with a bare minimum number of people and you would have to get 100%.
Leesteffy Jenkins I think that there is a conflict but I would leave it to the board to decide. I d like it put on the record that I believe that there s a conflict. Under the New Hampshire Conflict Rules I think there is a conflict. I m not going to make a huge stink about it; I just want to say I believe there s a conflict.
John well either you re going to object or you aren t.
Leesteffy I m objecting, but I ll leave it at that. I will proceed forward objecting.
Mr. McKeel you re as impartial a person as I know and I have no objection to your sitting. I brought it up for your information and counsel s information and it s not for me to decide.
John it puts me in a quandary, but I think Ms. Jenkins has a point. I think that, were I sitting as a judge, which basically I m doing; we re a panel of people who are acting as judges here. Were I sitting as a judge and someone that one of my partners represented appeared before me I would have to notify the parties at least, and if any one of them objected I would have to recuse myself. Since the applicants have objected, I m going to recuse myself. I will turn it over to the able-bodied chair, Larry Sunderland.
Larry I ll state at the outset that the hearings will be run in a different way since I m not a lawyer. The likelihood of not completing this tonight is very high.
John I ll take a seat out in the audience and keep my mouth shut.
Joe are we allowed to ask questions at this point? Joe asked for clarification as to how it can happen that someone can walk into the courtroom and all of a sudden we re short a member of the board. It doesn t seem to ring true to me. I don t like it whatsoever, but if that s the way it is, I guess it has to be.
Leesteffy may I make a suggestion that I take five minutes and caucus with the whole body of applicants that are here? I haven t had time to ask my clients how they feel on this.
Larry we ll recess for five minutes.
(On the tape during the 5-minute break, there was some discussion between the board members about this incident and Shelley Nelkins also came up and discussed something with them.)
Larry we re ready to resume the public hearing. At the outset, I want to announce that I fully intend to exchange documents with one of the applicants tonight. It has absolutely nothing to do with this case, but we have a deadline to meet and I have to do it. If anyone objects, speak out.
Leesteffy I ve had the opportunity to caucus with my clients and even thought this is a clear conflict, they feel that given the concerns of the board, that it s December, one member is missing and shortly to lose another, someone could get sick or what have you, and the unfortunate problem of finding this out at the last minute, my clients are willing to bend and withdraw their objection in order to facilitate the workings of this board.
Larry asked Mr. McKeel if he had any comment to make. He didn t. John came back up.
John things need to be made clear on the record before going forward. Ms. Jenkins clients were willing to waive the objection and allow me to sit?
Leesteffy given the circumstances, my clients are willing to waive the objections.
John the first thing we need to cover is that last month we spent most of our time dealing with two preliminary issues. One was whether or not we would waive the 30-day timeliness requirement and since that time the applicants have filed another amendment seeking to appeal two other documents that are characterized as decisions by the board of selectmen. One being the decision mentioned last month by Mr. Buckley on behalf of the selectmen the decision by the board of selectmen in March 2001. Another being a letter signed off on by one of the selectmen, Joe Herbert, in response to a query by the Department of Safety. I made copies of that and I ll pass them out to the board members. The other, the March 2001 was included in Mr. Buckley s package, and all the board members
got a copy of that. I think, hopefully, we won t take as much time on these as we did last month, but I think that, at least, we should hear some testimony on this before we get going on the substantive matters. I think it would be a shame to leave this issue until later and end up having to take duplicate testimony. I d like to hear from the applicants on why you think we should waive the 30-day requirement on these two items.
Leesteffy I m happy to address that. Let me say at the outset that I would make the recommendation that you decide this issue hand-in-hand with the substantive issue. The reason for that is that the presentation that I m going to make tonight is not going to differ at all, in any respect whether or not you grant our application to amend. It s all the same evidence, all the same legal citations, etc. relate to all the issues that we are appealing, so I think that once you ve decided the substantive issues, the direction you should go on the procedural issues will be clear. I think there will be a logical conclusion of whether you should deny it or grant it based on the substantive holding that you make. For instance, if you were to rule in favor of the applicants on the first two
issues that we brought up in our application, it may be somewhat difficult or administratively problematic to deny our request to amend particularly regarding the March 2001 decision when all the factors are the same issue. That s what I made clear in the letter I sent to the ZBA requesting the amendment in the first place. The reason we re requesting the amendment, and the reason I did not file an appeal to the March 2001 decision, is because there was nothing in the record to clip to suggest that that was when the grandfathering determination was made. I could not, looking at the record, figure out when the grandfathering determination had been made. There are no factual statements, there s only that one letter that Mr. Buckley mentioned. There was no way for me to cite to any “decision.” There was nothing for me to get my hands around to appeal at the onset, so that s why I did not include it and I think I made that clear in the
last presentation. I d also like to quote the verbatim record from the last hearing. In it, I believe that Mr. Buckley concedes that that clearly was a zoning decision. That s why I also think that this issue should be addressed once you ve heard all the evidence on the substance because I think it s very intricately entwined with all our other arguments.
John I took Mr. Buckley s comments to be that it was a decision that was reviewable by the zoning board as opposed to a zoning decision.
Leesteffy quoted.
John I took that as meaning that it was something that would be within the power of the zoning board to review.
Leesteffy later he made that point, but earlier he made the point that it was a zoning decision, and it s our position that the selectmen have no authority to make zoning decisions and any zoning decisions made by the selectmen are ultravirus and without effect. Again, that s why I recommend that we don t spend time at the outset to discuss these, but move forward with the substantive hearing and I think that the conclusion will flow from how you decide the substance issue should be decided. On the other issue on the letter from the Dept. of Safety, the applicants and I had no idea that Mr. Greene was licensed to operate a used-car dealership on the same land which either needed a special exception or even if it was grandfathered, was a non-conforming use land and now has a second business
operating there and we had no idea. There was no public decision made, this was just found in the record so there was no opportunity to ever address it within the 30-day time period, because nobody ever knew about it. We just happened to find it by searching through every record we could find in Town Hall on the Greene junkyard issue.
John is this even a decision by the selectmen? We get these on the zoning board too, somebody will, some state agency will, send a letter saying we want to know if everything s okay with respect to the zoning on this particular item.
Leesteffy I believe this is a decision because what Joe Herbert signed off on was saying that the applicant complied with local ordinances or requirements or had a variance to operate. They re making a determination that he complied with the local ordinances or requirement or that he was given a variance and I don t believe he was given a variance and it s not within the jurisdiction of the selectmen to decide whether he is in compliance with local ordinances.
John was there a vote by the board of selectmen on that before he signed that?
Leesteffy there was not a vote but the board of selectmen ratified it when they found out by not sending the state a letter saying that this was one person doing it and we don t agree. So, we had no knowledge of this. As soon as we had knowledge, we brought it to your attention and that is the basic argument. Again, I believe that all the arguments that I m making on the first two issues that we brought in the application are the same arguments that will apply to these two issues. There s nothing else to bring in, it s all the same. I would encourage you to decide this issue at the tail end.
John anyone wish to speak in favor of just proceeding, bypassing this issue, so to speak? If not, does anyone wish to speak against that?
Mr. McKeel I would object to adding these as issues, adopt Mr. Buckley s arguments made last time about the timeliness of raising these issues at this time. There has to be something the town can do that s final. Thirty days is long past. I don t know when Mr. Greene is going to be able to rely on anything that occurs here in this town if the rules are not followed with respect to timeliness.
John I guess the issue I have in mind is whether or not we should address that issue separately before proceeding into substantive issues or whether we should leave that issue for decision at a later time. I m thinking that if it would tend to speed things up a little bit, I think that I would want to do that, but if not then there isn t any point. It doesn t mean that we re just waiving that, it means that we decide that issue later on until we ve heard from everybody. I guess at this point I d like to get a sense from the board as to what you think we ought to do. Should we decide these issues separately or just proceed as Ms. Jenkins suggests?
Larry I think the distinction between the issues that were brought up and discussed and the issues that we re going to be deciding and I agree with Atty. Jenkins that it s perfectly legitimate to bring up all of these issues because I think there is a connection. She says they re the same issues, I m not sure about that, they are at least related issues and I think they are germane even if we re just looking at the 2002 issues. However, when it comes to deciding between which decisions of the selectmen we are going to discuss overturning or whatever we do with them, I think that s a little different matter and the way I see it, those decisions of the selectmen that were made in 2001 and before, refer to certifications that were given, one-year certifications, that were given in 2001 or previous
years. There s really nothing that we can do, we can t go back and say the selectmen made a mistake in 2001, or we can say that, but even if we do, there s really nothing that can be done about it because we re already under the certification of March 2002. So, I believe that when you come down to the final decision all we can look at is what was decided in March and September of 2002, and I don t think there would be any point in going back because the selectmen made the wrong decision in 2001 and therefore we are overturning it. Theoretically, if we overturn something that was decided in 2002, it will leave us with a small window of time when something could be done about that. Nevertheless, I think that if this is what we decided, we should not remedy the points that were brought up by council.
Bob I have some questions. I haven t seen an issue raised so far that would stop everything, if we made a decision on it first, that would stop everything from proceeding beyond that point. Therefore, I would say for the sake of expediency, hear the arguments for and against and just keep note of what the issues are and then make decisions point by point.
Joe I agree with Bob.
John I m going to move, then, that we don t separate the issues at this point and that we just proceed in accordance with our rules. Do what Lee wants.
Motion carried.
John At this point I ll repeat for those who weren t here and refresh the recollection of those who were. We re going to hear from the applicants and those who support the applicants position on the appeal. The members of the board will be allowed to ask questions, then we ll see if members of the audience want to ask questions of anyone who speaks, but the rules say that if you do have questions of a speaker, you address the questions through me as the chairman. Things will proceed an lot more smoothly. I will ask that anyone who speaks either stand at his or her table or come up to the lectern and speak because we have a certified court reporter here who is taking down all of the evidence that s being presented. Once the proponents of the appeal have been heard from,
then we ll hear from the opponents and follow the same procedure and after they re finished the proponents will have a chance to rebut what was said by the opponents then the opponents will have a chance for rebuttal as well. We will then attempt to summarize the evidence that has been given to that point, I will ask for any corrections from the audience. Once that s straightened out, we will close the hearing and move into deliberation. We will make a decision tonight, or if it has to be carried forward, for some reason lateness of the hour or whatever reason we will let you know. At this point, I ll hear from the applicants.
Leesteffy I want to make one clarification. When we asked to amend the application, we were not objecting to the determination to grant the junkyard license in 2001, we were objecting or appealing the grandfathering decision which had to be made prior to the issuance of the junkyard license in 2001, and I would agree with Mr. Sunderland that the licensing issue of 2001 is over and there s nothing there. That s not what the amendment is about, it s about the grandfathering decision. Again, that s an issue to be decided later, I just wanted to clarify it based on comments that were made. I believe there are four basic issues. 1. Whether or not Greene s junkyard was grandfathered. 2. Who has the authority to make that determination? 3. If grandfathered, has he expanded
the non-conforming use? 4. Then I will address various zoning violations that the applicants would argue, if he was grandfathered, required a variance.
No. 1. The NH Supreme Court has been pretty clear that selectmen may not directly or indirectly make the zoning decisions. As I read from the transcript from last time, Atty. Buckley, council for the selectmen admitted that the March 2001 decision that the junkyard was grandfathered was a zoning decision. The court in four cases struck down a series of decisions by the selectmen or by a planning board that had the effect of being zoning decisions, meaning they had the same effect a variance or special exception would have had. My argument is that the selectmen had no authority to make a zoning decision, therefore their decision that the junkyard was grandfathered was wholly without effect which means that they issued a junkyard license without the underlying zoning issues being determined
first. Because the underlying zoning determination had not been made, the re-issuance of a license in 2002 was illegal. The zoning issues have to be decided before the selectmen can issue a permit for a junkyard. This is the same procedure that the Supreme Court laid out in the NBPA vs. Weare case (and she gave some details on that case).
No. 2 In order for a non-conforming use to exist, the use must have been established before the restriction, which is the 1986 Deering zoning law, and in operation as of that date. Mr. Greene s father was given a junkyard permit in 1974. However, there is evidence that in 1986, the time Deering enacted its zoning ordinance, that there was not a commercial operation in effect. (Ms. Jenkins presented aerial photos from the state that showed the property.) In addition, Mr. Greene s scientific expert noted in his environmental review that (handed out highlighted pages and said page 7) the aerial photos in 1952 showed no development on the Greene lot. The western portion of the Greene property appears to have been recently timbered in the 1952 photo. The McAlister property
appears to have a structure at the present location of the McAlister home. The present location of the Greene salvage yard remains entirely wooded in 1981 and 1993. In addition, the Greene property, then under current use, since 1974, at the time it was put under current use, it was 32 acres. Apparently 3 acres were given to Mary Greene, 25 were put into current use. According to Mr. Greene s environmental expert, approximately 8 acres are currently being used for the Greene junkyard. If you do the simple math on this issue 32 minus 3 is 29 minus 8 is nineteen (no, it s 21). Twenty-five are in current use. As you all know, you cannot have a commercial operation co-existing in a land area that s in current use. Mr. Greene, senior, signed this paper that says he was in full compliance with all the current use laws and when he put it into effect. He reaffirmed that in 1994 and in 1998 it was again reaffirmed. We have a
property that s in current use and I suggest that that is further evidence that this property was not being used commercially, as of 1986, for a junkyard. There is some case law that is very relevant to this. There is the case where there was a store in existence. A party bought the store intending to reopen it even though it had been closed for 10 or 15 years, and the next year the town zoned it so he couldn t open the store. The applicant went to court and argued that the store was always there since 1952. The court said it wasn t in current use at the moment the zoning laws were changed. It had to be in commercial operation at that time. The case law is very clear that the burden of proof, as in New London vs. Smith, is on Mr. Greene. There is nothing in the records that would indicate that this business was in commercial operation in 1988. This is very relevant because in Greyrock Land Trust vs. Hebron, the case was reversed
on the variance question, the court held that the minutes failed to reveal the fact upon which the legal conclusions were based. The determination that something is grandfathered is a legal conclusion and has to be based on facts in the records. There are no facts in the administrative record that would indicate that Mr. Greene has met the burden of proof.
No. 3 The NH Supreme Court has consistently held that it is a well-established policy on building lots in New Hampshire to carefully limit the enlargement and extension of non-conforming uses. The Supreme Court has never permitted an expansion of a non-conforming use that involved more than the internal expansion of a business within a pre-existing structure. If the expansion was in a pre-existing structure negatively impacted the surrounding neighborhood, they ve held that it is an impermissible expansion. Mr. Greene s expert from Eastwood Environmental says that he s now using 8 acres. Assuming that Mr. Greene, senior, was operating a junkyard and having property in current use concurrently, at most he could have been using 4 acres, because of the 3-acre homestead, the 25 acres
in current use, and he now has 29 acres. (Is this math right? I m not challenging, just wondering if she said what she meant to say.) So there has been a clear expansion even assuming there was a junkyard in place operating in 1986, which we do not concede. If there was, there s been a clear expansion of the junkyard from 4 acres to 8 acres. (right?) Several of you went on the site walk and clearly there is not the tree cover, and there could not have been the tree cover, with the number of cars that are on the site right now. There has clearly been expansion. There is a 3-part test the court will look to in determining whether or not something was impermissible expansion. For our purposes, the most important thing, I believe, is the effect on the neighborhood. I have the case here, which is not technically precidential but is on point, of San Germano vs. Jaffrey. (handed out copies) An oil company that
was grandfathered wanted to deliver water in the summer months. It used all the same equipment, facilities and vehicles, didn t hire new personnel nothing changed. The court held that it was an impermissible expansion of non-conforming use because of additional traffic in the summer, which had an impact on the neighborhood. The case law on this is that if there is any adverse impact on the neighborhood, the court has held that it is impermissible expansion. I would argue that in this case, there will be several people in the audience who will stand up and talk about increased traffic, noise level and a multitude of complaints.
To summarize, we have physical parameters, effect on the neighborhood, and Mr. Greene s own admission in terms of his current-use application, in terms of his Eastwood Environmental expert, etc. I think there s ample evidence of impermissible expansion of a non-conforming use assuming you find that it was appropriately grandfathered.
John with respect to the expansion of the non-conforming use, I understand your arguments that there was no non-conforming use to expand, at least not pre-existing the zoning ordinance. As I understand the cases you cited on that particular issue, most of them have turned on someone who was expanding and at least it was perceived, in violation of the ordinance. I haven t heard you address the language of our ordinance at all, which, up until this last March, was so broad that you could drive a truck through it. (John read it.) I haven t heard any of your arguments, nor have I read any of your arguments that specifically address the language of Deering s ordinance as it existed prior to this March.
Leesteffy cited two more cases. What the court has said in that case is that the party has to give up the non-conforming use and then apply under the zoning law for a special exception, that you cannot expand a non-conforming use as a matter of law in New Hampshire. I think the court has been very clear that if you want to expand, you have to get rid of your non-conforming use and go with the flow of whatever the ordinance says. That s an option for Mr. Greene.
John so basically you think that prior to last March, section 6, paragraph B just has no application, that we re to ignore that in this particular case?
Discussion..
Leesteffy in the most recent letter from the selectmen, they said that the board also acknowledges that based on the hand-held GPS (she read from the letter). The issue of expansion goes back to 1986. He cannot have expanded from 1986, at all. It s not current expansion, has the business changed from 1986?
John that was my question. The ordinance would seem to say that he could expand and modify as the business and conditions warrant, and what you seem to be saying is that we should simply ignore this. This is the ordinance that existed from 1989, at any rate, up until March 12, 2002. My question is, you haven t addressed the language of our ordinance at all in your expansion arguments, and does that mean you think we should ignore it?
Leesteffy - I guess that this is open to interpretation. Is this to be interpreted in the same way as the Supreme Court cases which will say the natural expansion of the business is permitted? If that s interpreted in the same way by the court, then the court s case law on this is relevant. The court s case law says the natural expansion does not mean an expanded use that has further impact on the neighborhood. They re balancing the language vs. the public policy that caused the zoning ordinances to be put in place, that made this a non-conforming use in the first place.
John our zoning ordinance went into place with that language in it. My point is that you haven t given us anything to suggest what our interpretation of that language should be. It was pretty much the feeling of the board that that was not very restrictive at all and that s why change was recommended in March 2002.
Leesteffy I would argue that this is equivalent to the natural expansion, which the court has construed very narrowly. The underlying policy is that these are activities, which, for public policy reasons, the community has decided are not desirable. I would say the Supreme Court has not given an inch on these issues. Going to the last argument, the plethora of violations of our zoning ordinance. Even assuming the junkyard was appropriately grandfathered, there are a host of issues that Mr. Greene needed to comply with. If he didn t want to, he needed to come to your board and ask for a variance. Mr. Greene has not, to my knowledge, ever come before this board to ask for a variance or a special exception. Those issues include violations of 4.4K1E, 4.4C, 4.4K1F + H,
4.4K1H4IE. He has no fence as required by both town ordinance and state law. It must be secured from unauthorized entry. I have here a police report of all the times Mr. Greene has called the police in 2002, 2001, and 2000, reporting theft and a whole host of things on the junkyard site. This is a strong indication that the property is not secure from unauthorized entry. There is no off-street parking, there s MBTE in the test wells, which goes to the nuisance and the health issues. Apparently there are teenagers who have been known or sighted practice driving the junked cars in Mr. Greene s field before they got their licenses. There were rifle shots and apparently altercations; there are revolving lights from his tow truck shining in people s windows in the middle of the night, tow trucks at all times of the day and night, and a whole host of complaints you will hear from members of the public. In addition, I did give you one case,
La Chapielle that does quote language that says the junkyards in this state as a matter of policy are presumed to be indecent? There s a problem with cars having gasoline, kids could be smoking and igniting the cars, there s no fence to keep the kids out, and kids could get stuck in the trunks. There s a whole host of reasons why policy makers and courts have held that junkyards are a special category of non-conforming uses the town can deal with in a much more restrictive manner than they can other types of non-conforming uses such as signage, etc.
John do I take it correctly that all of the issues of kids getting hurt, smoking, perhaps starting fires, etc., are things that might happen but have not yet happened?
Leesteffy kids have been driving cars. Members of the audience will say whether anybody has been injured. I think there s a real likelihood of it. I know from talking with another attorney that Mr. Greene does not have liability insurance, which is a real concern. I also understand that there have been some fires. In the Eastwood Environmental report, the reason the state paid for the experts to come out in the first place was because there was an above-ground tank of gasoline which apparently had fallen over and the gas had gone out onto the ground, which they considered an environmental hazard and that qualified him to get money to get an expert in there. The fire chief has indicated some serious concerns about a fire hazard and that a fire could rapidly spread and they
wouldn t be able to deal with it. There s no knowledge of how much gasoline is in all the cars out there. Has it happened yet? No, but once it does it s a huge community tragedy. I can t say no tragedy has occurred the one abutter has the polluted well but in terms of a life-and-death situation, not yet. This is an accident waiting to happen, but that goes to a different issue the issue of whether he should be grandfathered or given a special exception. That s not the issue before this board because I don t believe Mr. Greene has, as of today, filed an application.
Larry going back to the first argument you made. You cite several cases and looking at those cases they weren t about grandfathering, they were about certain actions the selectmen took which courts said amounted to granting a special exception, which only the zoning board can do. In using these as comparable situations, are you saying that when the selectmen determined that the junkyard was grandfathered they were in effect granting a special exception?
Leesteffy I believe the case law says that the selectmen had no authority to make a zoning decision and that grandfathering is a zoning decision as was the admission by Atty. Buckley. Very rarely do you find case law that is exactly on point. I gave you these cases because I thought they showed a very wide range of issues where the court was able to extrapolate that there was an underlying zoning decision. I gave you these cases to show you how broadly the court is determining the issue of what constitutes a zoning decision.
John any other questions for Ms. Jenkins? Anyone else wish to speak in favor of the application?
Theresa Hemenway an abutter. Our backyard is directly in back from their field and they had mowed out this summer a racetrack in that field and they had several different junk cars going around and around. One day this summer there were all young kids going so fast around the corner that they lost control of the vehicle and it went into my backyard toward my daughter s swing set. They did get control of the vehicle, slam on the brakes, then they headed back out, but that s a concern of mine. That went on from morning until late at night, 10:00, 10:30 or 11:00 at night sometimes. We were also witness to the towing at all hours of the night. It would be 2 or 3 in the morning with the tow truck going, lights going. Sometimes there were no lights at all, not even
headlights, when they were towing cars in and out. We also were visited by the sheriff this summer. I believe it was when the town didn t have a chief, when they were in the replacement process. The sheriff s department came and asked if we had heard any gunshots fired? We said we hadn t. We had several air conditioners going and we were informed then that there had been a dispute at the junkyard, something about a theft, and there were shots fired. I guess that would be it - the cars, the shots being fired, and the tow trucks at all hours. Aside from the water issues, those were the nuisance issues that have been going on for a long time. Thank you.
John I have some questions. Since you re here and you are an abutter, how long have you lived there? Can you speak to any of the issues concerning how the junkyard has grown over the years?
Theresa when we first moved there about 5 years ago, there was not the traffic that there is now. We could never see the vehicles from our back yard. In the fall or the summer you can stand in my backyard and clearly see cars, boats, campers, and everything else. Growth? Yes, definitely.
John my concern is that there are two lots apparently in different ownership. One is a back lot, which is larger and back up against the Boston and Maine railway. Then there s the front lot, which is on Second NH Turnpike. One of the issues is that this was not used as a commercial junkyard prior to the enactment of the ordinance in 1986. I wondered if you could speak to that issue, but you probably haven t been there long enough.
Theresa no.
Leesteffy I just want to clarify that I wasn t saying that there were no junked cars there, I was saying there was no commercial operation.
Lisa McAlister every time I come here I m a nervous wreck. I think of things I d like to tell you after I leave. I need to give you some bottom line. A thousand cars in my backyard is just not acceptable. I moved to this house 17 years ago. There was a small garage with maybe 20, sometimes 30 cars, at most.
Joe were they around the garage building you mean?
Lisa everything was condensed to the property around the house on Second NH Turnpike. And there were some cars in the back. I first talked about this issue about 12 years ago. I came before the zoning board with a woman named Laura Alves, who lived across the street from the Greene s at the time and we were both very concerned that there would be water problems at some point because of the junk and at that time he was wanting to open another business called Harv s Auto Body and expand. The word expand started to make us nervous. At that meeting it was just the other woman and I and we were pretty much told that he was within the law. There were gentlemen in the back of the room who pretty much just heckled us the whole time we were there and treated us like we were a
couple of dumb broads and what were we talking about. Actually Mr. Naile was there, along with some other men. I wrote a letter to the town and stated to them, sent it certified, that I was appalled with what had gone on. This was 17 years ago not 12? and had I known then what I know now, I would have had a lot more to say. The point is that I was concerned about it way back then. Since then as I said 1000 cars. What everyone s dancing around here too, is the fact that there is water contamination. There is MTBE in our well. We have a driven point and MTBE does not flow uphill. The flow of water from the Greene s is higher and comes down into our yard. Mr. Cobbett could tell you about that. The fact that Richard Pendleton was hired by Mr. Greene and states that he can t conclusively prove that that s where it comes from is a bunch of baloney. There s nothing else there. It s field, there s never been
anything else there, it s farm country. It used to be beautiful. Our property value has been very adversely affected. We couldn t sell our house today if we wanted to. No one would give anyone a loan and plus we don t even have any equity left because of the situation. It s affected us certainly a lot more than a lot of other people but having to stop in the middle of the road to go by cars, because the tow truck is in the middle of the road, having lights flash through your shades in the middle of the night because my bedroom window is on the same side as the garage. Looking at some of the characters that hang out there, knowing that s what s next door to you is very disturbing. Obviously by the number of police reports that doesn t mean I m a snob that means it s actually happening. There are a lot of low-life s who hang out there and do business there. It s just tremendous and I ve watched over the past 12 years and I ve
drawn up petitions and walked the neighborhood and come before the selectmen and watched the buck get passed so many times here, I can t tell you how tired I am of it. I ve watched the state say it s the town s problem and the town say the state needs to do that. The fact of the matter is that I have a filtration system in my basement the state installed for us. It s pretty much taxpayer s expense and that s worth over $5000. It s not fair to the taxpayers to have to pay for that for us. But then, at some point, someone may say we don t have the funds to pay for that anymore, we can t filter your water anymore. The analogy has been used that perhaps we spilled gasoline on our property or we were filling our lawnmower, the big one. If we really fill up our lawnmower, we d have to be taking it over to the far corner right along Mr. Greene s property to fill it because it s so much higher on that side. By our garage, our well readings
were zero there was no contamination there, at all. From the very beginning the state danced around and danced around my question: are you going to be able to conclusively prove this came from Mr. Greene and no one will ever say to me that it is an exact enough science to say that it came from there. Mr. Pendleton s conclusion didn t surprise me at all. If you look at the facts of how water flows, there s just nowhere else it could have come from.
John you talked about Mr. Pendleton and we have seen his report. Are you aware of any expert who has stated that it s more probable than not that the contamination of your well has come from the Greene junkyard?
Lisa expert, no. The environmental lawyer that we hired certainly seems to think it s beyond a reasonable doubt. When it gets into a court situation, I m sure there s going to be more clients? bias? Right now my issue is a financial one. I ve spent $2800 on this to get nowhere so far. I don t have any more money. Maybe Mr. Greene is pro bono, but I don t qualify. I ve been searching to find a lawyer who would take this on contingency and I have an appointment with a lawyer in January to get back into it again. But, the lawyer that I wanted to have work on this is just too expensive and I can t afford to pay him now. That s the only reason there hasn t been another expert brought in. I m sure Ms. Jenkins at some point will have to do that.
It will happen.
Heidi Feather I ve been a resident of the valley for more than 40 years off and on. Who is responsible? No one wants to take responsibility. Why? You re just skirting around all these issues. It s just a bunch of rhetoric. Who s going to take responsibility? Who? Nobody here wants to take it. My cousin s well is contaminated and nobody wants to take responsibility for it. What are you all so afraid of? Why is it stated in your minutes that Lisa McAlister s well is far beyond safe limits, a hundredfold, of MBTE, but still you ignore it? And last time I was here, you decided this was a regional issue, you haven t even spoken to that. Because Ed feels that it could be a possible contamination to the Connecticut (Contoocook) River. I haven t heard that mentioned either. Nothing. Twenty-five years ago, when I was a child, I used to ride through Mr. Greene s junkyard on my horse. There were no more cars out there than any normal farmer of that era would have in his
backyard. Twenty-five years ago there were a few vehicles. I was away from the valley for two years. I hardly saw any at all. I come back and take a walk down the railroad tracks 3 or 4 football-sizes of vehicles (football-field sized areas?). I was shocked and I asked my family where the vehicles had come from. How is this possible? And I have compassion for everybody here, but who is going to take responsibility? That s what I want to know. Thank you.
John excuse me ma am, I do have some questions. You lived there for some time. Were you there in the 1985-1986 period? What was the back lot, the one that now borders the Boston & Maine railroad like as far as junk cars.
Heidi yes, I was there. There were hardly any cars there.
John were there some?
Heidi there were some directly beside Lisa McAlister s house.
John was that closer to the turnpike or back behind her house.
Heidi closer to the turnpike was where most of the vehicles were. We had horses then and we would ride through the back lot and it was just trails. There were just a few trails; there were no vehicles out in the back.
John any other questions of this witness. Yes Ma am?
Unidentified Ma am (I think it was Shelley Nelkins) I heard something about regionalized. I heard that it was a regional issue that was brought up at the last meeting and I m here because I m from Antrim and I know that towns were notified. Would you mind going over why it s a regional issue?
John okay. Basically it was brought up that the town of Bennington and the town of Deering share the same aquifer, which sits under the property that we re discussing at this point. The determination was made and the statute requires that if there s any doubt as to whether it s a regional impact, that it has to be decided in favor of at least getting it out there so the neighboring towns can be notified. They have been notified; so far none of them has spoken, which is why it hasn t yet been discussed.
Dave Crowley Atty. Jenkins mentioned fires. At a prior town meeting, I thought it was brought up that there was a fire, and the fire department did respond and had a hard time getting in. That s what I heard. I didn t research this so I don t know for sure. Maybe that s something you should check out.
Gary Bono I ve lived in Deering since 1976. I ve been on the Conservation Commission. I spent 8 years testing the water in this town. I think that we need not lose sight of the bigger general issue. I m not a lawyer, but we have certain laws, zoning ordinances, to protect our citizens. In it there s very clear language about what is permitted in the aquifer district what kind of businesses are not permitted. We have ordinary language of grandfathering and expanded use and all the other issues. I think it s very clear to the ordinary people. We want to be protected from poisons in our water. We want to be protected and so when get immersed in the legal minutia and lose sight of what we are trying to protect, we are doing this community a disservice. Do we want to be known as a town that doesn t enforce it s zoning ordinances? Do we want to be known as a place where towns can come in and do what they want? There is no more precious thing on this planet than water, and
we are blessed with a huge bounty, and we are spoiling it. We have laws that were designed to protect us. You may want to say, can the legal guys conclusively say that this MBTE came from that source? I happen to know a little bit about MBTE. There s no way that you can have a sustained high level of MBTE without having sustained spills. There is no other source. The audience clapped. If there was just somebody spilling some gasoline over the ground while filling their lawn mower, there d be a little blip and it would be gone. There is way beyond any reasonable doubt, the amount of MBTE, where it s coming from, the sustainability. Now, there s a thousand cars. How much anti-freeze is in 1000 cars? How much battery acid? How much hydraulic fluid, grease and oil? Where are those thousands of gallons of other things that we haven t found? Do you have receipts of where you have disposed of this
hazardous stuff? Is it just sitting out there, or is it in the ground? When you crush a car and take the metal away, what happens to all those things? And if he s collected it and disposed of it properly, where are the receipts for that? So the bigger issue of what kind of a community do we want to have; why did we create these laws and have these boards? If ordinary people looking at reasonable interpretations of what those ordinances say cannot have some confidence that they re going to be enforced, then why? I just don t want you to lose sight of the bigger issue. Has Mr. Greene ever come before you folks for any reason and talked about what he s doing, gotten permission? Has any of the due process, all the things Ms. Jenkins has talked about, I think is very relevant. I hike up Hedgehog Mountain and I look down and I see the thousand cars, and I didn t used to see a thousand cars. It s hard to be unemotional when you
see your community and its resources getting spoiled, when so many other people have been working so hard to protect it, and I feel that there is every reason to put a stop to what s been going on and I guess that s all I have to say. I also have some other things to say in terms of I ve been here since 1976. I knew Taylor s father (Carroll s father?), I was over there and there was never a commercial operation at that time. There s no way that there s any argument that I believe that there was an existing commercial business. As a witness I can affirm that the things Ms. Jenkins has brought forward are proven and that there was no commercial operation that Mr. Greene has never gotten a variance or special exception that the junkyard has been operating in violation of town ordinances, he s consistently given conflicting testimony about whether there s gasoline or no gasoline, whether he s taken the tanks out or not taken the tanks out, had a 1000-gallon
storage tanks that were unlicensed, that there s been spills. The litany goes on and on and on. The question is, when are we as a town going to put a stop to it? I entreat you to vote your conscience, look at the bigger issues and decide what we re about. Is the spirit of the law to permit this person to continue or not. What s the value of those properties now, around there? Are we going to give these people tax abatements? Do you want MBTE in your well? Do you want your property to be tainted with that?
John my question is you ve said that didn t used to be a commercial operation. When, to the best of your knowledge did it start becoming a commercial operation?
Gary I bought some topsoil from his father in 1976. It s been 10 years when it used to be 200 cars and we were pulling our hair out wondering why doesn t the town do something, or the state do something, about it? When it went from 200 to 1000, then that was just beyond the pall. When I was over there in 1976, there might have been 20 cars at the very most, but it wasn t a commercial operation. Like somebody said, any old farm had some cars and trucks in the back yard that they sometimes took the parts from and nothing out of the ordinary. I can t really answer that question completely, but certainly when it became 200 cars it was something that was horrendous. When it went from 200 to 1000, it became just beyond what anybody could really tolerate.
Larry can you say when it went from 200 to 1000?
Gary no, I can t. I don t have a very good memory for those kinds of things. There are other people, especially the people who live in the neighborhood, who would be able to speak more directly to that. Within 5 years.
Leesteffy when Mr. Bono refers to the 10-year period, is he referring to the uproar that occurred over the garage about 10 years ago and when you say you think there were about 200 cars there, are you referring to 200 concentrated around the garage, or in the field where they are now?
I m running out of time. I m mostly going to just copy my messy notes from here on.___
Gary around the garage. Certainly there were some in the field, but not in the trees or in back
Lisa McAlister/Christenson I ve been a resident for most of my life. I grew up in the McAlister house. I played in the woods. Within 4 or 5 years it went from 200 to 1000 cars. There were 15-20 in Mr. Greene, senior s, yard when I was a child.
John in the back woods or the front piece?
Lisa C. there were a few in back and a few up front. I worried about my children because of gas, pollution , fires, cars at all hours coming and going.
Lisa M. Do you know anything about a fire?
Lisa C. gas was spilled there and set on fire to avoid detection. (rumors.)
Dave Penney (not on the list at the beginning, not positive of his name) I m the chairman of the Board of Selectmen of Antrim. Thank you for the notification. We re very concerned. The aquifer is a very important resource. There s an issue about the bridge over the Contoocook River. About 3 weeks ago Beth Kelly came and asked about sharing the expense of repair to the dilapidated bridge.
John is there any MBTE in Antrim?
Dave I m not aware of any.
Linda Feather I used to play in the woods. There were 6-12 cars. Someone who said he saw Greene throwing stuff in the yard recently approached me. The well had black stuff in it. With the rules of the town and state, how can this go on due to the risk to the environment.
Ed Cobbett I am an environmental consultant and the project geologist of the State of NH. and a licensed professional in the State of Mass. and a certified Wetlands scientist in NH. In order to understand the problem, you have to understand the area. The geology of the junkyard area is in the co-op plane, which is a stratified rift aquifer. This is the only aquifer in the town of Deering suitable for municipal drinking water source. It s the only one that has suitable for municipal wells. Basically there s a big sponge overlying the water table. Whatever you pour on the sponge goes directly into the water table. It passes right through the soil into the groundwater table. The main concern here relative to any contaminants is the gradient. That means its
gravity, slope. Hedgehog Mountain is in the back, the junkyard, McAlister s, and the river, from high to low. The environmental expert determined the water flow followed the high to low pattern. His flow didn t directly line up with the McAlister residence from the junkyard, but it s in the same general direction. I believe if additional monitor wells were placed in the field to the other side of the house, they would skew the gradient even more toward the house. The gradient is from the junkyard, toward the McAlister house, toward the river. That s documented in the consultant s report who was hired by the state. Contaminants associated with junkyards: used oil, crankcase oil, brake fluid, transmission fluid, anti-freeze - toxic waste, chlorofluorocarbons - illegal to be released into the environment, shock absorber fluid, piston fluid, sodium azide in the airbags carcinogenic/mutagenic/highly explosive/poisonous/toxic, and gasoline
BTEX and MBTE. Both of these are lighter than water and float on top of water. They travel with the water and the gradient. MTBE leads the plume of contaminants. First you find the MTBE, then 6 months or two years down the road, the rest of the constituents come along behind. In 1990 the percent of MTBE in gas was increased to 9-12 % in each gallon of gas. It has been consistently detected in MW7, on the corner of Mr. Greene s property abutting McAllister s property. It s been found in MW5, in the middle of that property line. These are upgrade of McAlister s house. It is not going from McAlister s house to the property line, it is going the opposite direction. In my professional opinion, the likelihood that the junkyard is the source very, very likely because the McAlisters have no point source. Gasoline spilled from a lawnmower doesn t contaminate a well for 6-7 months. At these
levels, it just doesn t happen. You can t conclusively say, without any doubt at all that, conclusively, it s where it comes from, but in my professional opinion, that is where it comes from.
John the contamination in McAlister s well. Did it show up before or after the license was renewed this year?
Ed before.
John was that information available to the selectmen?
Ed yes.
Joe In the report it talks about the effect an operating well has on the water table. The monitor well next to the garage shows no contamination. But on the other side, it shows up.
Ed look at the gradient depiction. As he installed the wells the gradient shifts and sucks contamination in. The other thing unaccounted for in the report, is the McAlister s leach field which skews the gradient.
Joe the report doesn t say it loud and clear but it makes you wonder why next to the garage there s nothing, but in the drinking water, there is.
Ed most of the cars have only been there since last June? They were moved from the field when the logging was done, and then back.
Larry when did most of the cars come on the property?
Ed around 1998-1999 it escalated.
John what was there in back in 1986?
Ed trees and not much else. There was no room for the cars due to the trees.
Ed Naile there was MTBE found in several wells. Can you explain what TAME is?
Ed C. a breakdown product of MTBE.
Ed N. on April 18, 2002, TAME was found in McAlister s well and nowhere else. Why?
Ed C. because they used push points. I don t like them. Something about volatization.
Joe these contaminants are lighter than water so you d find them on the top of the water. When they drilled the monitor wells, did they sample the top water?
Ed C. it didn t say. It wasn t documented. They should take the samples from the top.
Shelley Nelkins Antrim s wells are on the same aquifer as Deering. What s the time frame before the pollution comes to our well.
Ed C. negligible.
Shelley will it ever reach the Contoocook River?
Ed C. yes, eventually. Then the MTBE will volatize off.
Shelley if there are 1000 cars with gas and other things in them, will it all eventually all wind up in the water?
Ed C. if they all got in the water table? Anybody downgrade would have problems.
Gary when I first looked at the plume, it was confusing. Would you say that the plume is consistent with multiple spills over an extended period of time?
Ed it s sporadic in nature. Multiple small releases come and go.
Heidi Feather the Contoocook River is a flooding river. It can vary. I ve seen it around Mr. Greene s house, up that high. What would happen with the 100-year flood?
Ed C. I believe the majority of the junkyard is in the 100-year flood plain. Whatever is on the ground when the water comes up when the water recedes, it goes into the river.
Leesteffy Central Regional Planning Commission sent you a letter.
John we received a faxed letter from the Southwest Regional Planning Commission. We ll take a 5-minute break.
John at this point we ll hear from the opposition to the application.
Robert McKeel I ll address my comments to the grandfathering issue. This use has been a salvage yard a very long time. The nature of the grandfathering is such that non-conforming use that pre-dates the zoning ordinances is such that it is a vested right recognized by the NH Constitution Part I, article 2 + 14. That s a right that attaches to that particular use. Oat vs. Hinsdale the court says that the town has nothing to say about it. With respect to the use made of this particular property, if there was a salvage yard there, predating the zoning, the Greene s would have a vested right to that particular use. A license was granted to Mr. Greene s father by the selectmen on May 31, 1974. With respect to Carroll Greene, there is also a particular use his father made
of the property even if Carroll didn t seek grandfathering determination himself, this use could be passed along. New London Land Use Associates 130NH510 the property can be sold and the grandfathering goes with it. In 1983, Carroll Greene did receive a junkyard permit. The records are not available, but the minutes of the selectmen s meeting of April 25, 1983, where Carroll Greene appeared for a junkyard permit name change public hearing scheduled for May 9, 1983. I don t know where the minutes are but the information is in the Messenger of May 12, 1983. Thereafter, Mr. Greene, on an annual basis got licenses. Mr. Greene and his father received permits prior to the ordinance adoption in 1986. There s not much question about the grandfathering use. Mr. Greene has gotten his junkyard license on an annual basis since 1983. The use he has made is of a salvage property. In the 1970 s he built his garage. All these uses
predate the zoning regulations and section 6 of non-conforming buildings that applies to this use was an active use of the property for those purposes when the ordinance was adopted. With respect to the issue about current use, this is the property of Mary Greene, not of Carroll Greene. It s not conclusive as to whether he was operating a junkyard there or not.
John the issue is there are 2 pieces of property, actually, one owned by Mary Greene and one owned by Carroll Greene. The testimony has been, and photos show that by far, most cars are on Mary Greene s property. I was looking at the licenses that you referred to in the newspaper article and I don t see any differation to tell me which lot, or lots, the license was granted for, where the junkyard was in operation.
Robert the salvage has been in the back yard which is now the property of Mary Greene, a continuous use.
No. 2 The particular back lot that s used now for salvage has always been used that way. There is a greater volume now, but the area has not expanded in space over time
No. 3 With respect to the various other issues that come up in terms of conformity and neighbors. I respect your opinions. There hasn t been a lot of evidence of the problems. The stack of police reports, I often find a good place to start is in the back. Mr. Greene s father had some sticks of dynamite. Mr. Greene told police he would be away. Mr. Greene called because 2 pins were taken from his lawn tractor. Mr. Greene was receiving harassing phone calls. With respect to the racetrack, I didn t hear anything about who it was. I don t know if it s in the police reports. Same with the gunshots. There s no documentation at all on the pollution issue or of any spills at the Greene s. There s no contamination in the soil, there s no
evidence that Mr. Greene s made improper disposal of any of the fluids. With respect to the groundwater issue, it s inconclusive. It is a little curious that it s a straight line from where the cars are parked to the Greene s well and there s no pollution there. The next map west of car storage area, there s one area has a high count but all the others are small. It s all in the area of McAlister s where they have their hayfield and at their well. It could be Mr. Greene, it could be the McAlisters but there s no evidence. Some elements are in the McAlister s well and nowhere else. People are troubled about contaminated wells, but there s no evidence that Mr. Greene has contaminated the McAlister s well. To take the vested property right away from Mr. Greene because people are afraid is speaking to more than that.
Joe you look at assessment sheets for Mary Greene s property, it says pine and farm. Has Mary Greene ever paid taxes for an operating junkyard on her property?
Robert I don t know the answer to that.
Gary Bono no scientific evidence of contamination? What do you think all those water tests have been? There is overwhelming evidence of multiple spills over an extended period of time, no other plausible source for it. Has no vested right to harm his neighbors. What do all these water tests represent?
Mr. McKeel there is scientific evidence that there was contamination, but not a conclusion as to the cause of that.
Theresa Hemenway are there any reports of theft in the big stack?
Mr. McKeel not on the front.
Shelley Nelkins I do a lot of research. Sticky notes mean I went through it all. I think you re being less than candid, which is not surprising.
Mr. McKeel I resent the implication. I don t know what any of this is all about.
Ed C. you stated that there had been no spills reported? If you check with the local Fire Dept. you ll find there had been a release of gas from a tank in a fire there and also that the state of NH came down and picked up a 55-gallon drum of contaminated soil that Mr. Greene shoveled into a barrel.
John no more questions? Who s next?
Ed Naile I d like to address the vested rights for a duly approved junkyard license. I live in town and I m a friend of Mr. Greene s. I ve been to selectmen s meetings back in the 1980 s. These same accusations came up that Mr. Greene didn t have a current business. Mr. Greene came with a box of receipts going back to the 1970 s. When I was a selectman in 1996, Mr. Cobbett sent us a letter stating that the 1974 license said that it was on Houghton Crossing Road on lot 299. If you review the license from 1974, it says the junkyard is located ¼ mile south of Houghton Crossing Road, which is where Mr. Greene s business is. This was originally 299 and this whole parcel was owned by Mr. Greene in the 1970 s, Carroll E. Greene, the father. Parcels have been divided in the
family.
John was there an actual division? Was there a subdivision? Was it originally one big piece?
Ed N. on September 9, 1996, Mr. Cobbett brought the letter making these same complaints. We looked for the records and found nothing. Mr. Greene went to the state library and got the Messenger from 1983. It was a May 12, 1993 selectmen s meeting. This is a case based on public record. Mr. Greene, senior, got a license in 1974. He has a vested right, it s been proven over and over. The other thing, how can the ZBA find when the grandfathering, 6.1 on the ZBA regulations, say that non-conforming uses may continue in perpetuity. In 1986, I argued against that language. The state has been out there numerous times. I was out there a week ago with the rep. from the state Fire Marshal s office, Mr. Humphrey. We walked through the entire thing.
Mr. Humphrey promised a report to the town. He was going to make some observations red stickers behind the fire extinguishers. Mr. Greene had a container for holding the anti-freeze and receipts from the removal of the anti-freeze by the hazardous waste company. He had a pump for pumping the gas out of the vehicles when they come in. He had an area for storing batteries. Mr. Humphrey said as long as you take out the gas and the batteries, you don t have a causation of fire by the vehicles themselves. He was concerned about getting vehicles in and out. The hazardous waste spills on the property if you have vehicles near wells, you have problems. Mr. McAlister parks his vehicles next to his well. (He showed photos.) We can share the blame of the water pollution. On RSA s requiring fencing. It says shall have fences unless there s forest, or berms, or vegetation to block the view.
John I guess I have some questions. I d like more detail. I know what you d said about it s the use that s grandfathered, but if it was a use on 1 lot that didn t spill over onto another lot, that would be a different situation.
Ed N. there was never any permit given for lot 735, or lot 299 or lot 50 or anything. Mr. Greene owned all of it at one time. The parcels changed hands I think when I was selectman. Mary Greene came up and had an issue with the selectman regarding the property change from her father. Her father died when I was a selectman, so there was some point in change and we told them at the time the selectmen had nothing to do with that. That was something to do with a lawyer. The other thing we keep hearing about is licenses are not assignable or transferable. (He went into detail.)
John my question is, as of yet I don t know if there was a junkyard then.
Ed N. I believe Mr. Greene has his receipts from getting his junkyard renewal from 1984 and I think he s got all of them right on up through. Why you have an argument about public documents when they re here, we supplied everyone here with a copy of a sample of those receipts. If you want to get into detail, Mr. Greene can bring in receipts. He brought in testimony from garages downtown that he purchased materials from.
John I just want to know, was he running his business on lot 299?
Ed N. from my experience, yes.
Lisa McAlister when did you take the picture of my husband s truck?
Ed N. a week ago, two weeks ago.
Lisa M. - were you on my property?
Ed N. no, we were on Mr. Greene s property. (Debate.)
Ed C. can you tell me which well had the highest contamination?
Ed N. - MW5.
Ed C. which is where?
Ed N. - 19 feet on Mr. Greene s property.
Heidi Feather I just have one little question. Do you really care about the people drinking contaminated water?
Ed N. yes, I do and I care where it comes from.
John anybody else wish to speak in opposition to the application?
Carroll Greene lot 299 is and has been the salvage yard. (Mr. Greene gave a lot of testimony about his good behavior as a junkyard owner, but it was soooo quiet, I can t put it all down here.)
Larry when were the trees taken out of the large clearing where the cars are now?
Carroll two years ago. My sister did it.
John I have a couple of questions. One of the issues raised by the applicants has to do with the certification of lot 299 for current use and the reference to the fact that there were, in 1994, rear acres, seasonal wet, poor …
Joe 1998 is the latest entries in there.
John well there s some indication that when the property was appraised in the 1990 s, for current-use purposes, the indications were that there weren t any cars on the lot and that it was just pine forest, and was part of the woods.
Carroll I think you ll find the property there and still is. I have a 99-year lease owned by my sister. Too quiet to hear.
John my question has to do with the fact, I don t care about the current use, that s not our baileywick, but my concern is that at some point, somebody went out there who had the purpose of looking to see if that property was eligible for current use and determined that it was and that there was no commercial operation going on there. How can that square with your statement that that s where the salvage yard has always been?
Carroll that s a good question. (He went on.)
John my other question has to do with the fact - how many cars were there in the spring of 2001 on lot 299, approximately?
Carroll that would be very hard to say. (He continued.)
John when did you get the count and how many were in the count?
Carroll last count was 927, I think. That included all my personal vehicles too. It was within the last year.
John but you can t say how many less were there the year before?
Carroll the number actually varies. (He went on.)
Someone in the audience asked to have him speak up please, we can t hear back here. A board member said, “I can t hear up here!”
John so you can t say. There has been some talk about expanding over the years. Do you have any idea how much it s expanded over the years?
Carroll the volume goes up and down and there is no expansion, we did not go beyond the boundaries of the salvage yard. The salvage yard has its pins which they asked me to put in. They re there and they re not going to move, I m not expanding.
Joe you said you have a 99-year lease with your sister to operate a salvage yard on her property. What year was that lease written?
Carroll the second one was probably in 2000.
Joe the second one?
Carroll she had written one prior to that one.
Ed N. if you have 900 cars, if the steel market goes up, how many do you intend to crush?
Carroll I ll probably end up with 200 left.
Ed N. so you would crush the less valuable ones and keep the more valuable ones?
Carroll that s the business.
Ed N. so you ve expanded and then unexpanded the actual volume of the business.
Leesteffy at the September Show-Cause Hearing you said if you sold them, you intended to expand this business. Have you changed that position?
Carroll I don t intend to give up this business. (He continued.)
Leesteffy Mr. Chair, I d like my question answered. (She was told to ask again, she did and he answered.)
Carroll I m not going to expand my business acreage-wise. As far as volume, that varies.
Bob Greene I d like to know in the last 5 years, how many times have you had a crusher in there to crush cars?
Carroll I have not crushed in the last 5 years.
Lisa C. how many cars have fluid still in them?
Carroll talked a lot but didn t answer the question.
Lisa C. how many vehicles do still have fluids in them?
Carroll talked a lot but didn t answer the question.
Lisa C. sir I m not asking what s on the ground, I m asking what s in the automobiles themselves. How many vehicles?
Carroll talked a lot but still didn t answer.
Lisa C. maybe 600 still have fluids? How many?
Carroll I don t have an answer for that one. They all have some fluids. Kept talking.
Ed N. I have a question. I talked to Sara Kearns, the lady from the Dept. of Environmental Services who checks for pollution. She is basically assigned to you. What has she said about your junkyard, of all the junkyards she s seen?
Carroll one of the cleanest ones, most cooperative. Mr. Humphrey said no complaints, no violations.
Lisa M. do you have a lot of old cars out there?
Carroll - 1980-1981 is about the oldest.
Lisa M. do you now have insurance, either homeowner s or property?
Carroll I have homeowner s on my home.
Shelley Nelkins you burn the oil? Do you have a permit from the DES?
Carroll it s in process. I will have a permit by then.
Ed C. of the 900 junk cars, what would be the proportion spread out between the 2 lots?
Carroll serviceable cars on the garage property, salvage on the other.
John at this point, both sides will have a chance to rebut.
Leesteffy first, I want it on the record that I object to the introduction of this as evidence. I d like to see it authenticated before I set it into the record. Second, there was a hearing in 1991 on the garage. If he was operating a viable commercial enterprise on lot 299, as a junkyard in 1999, why did he not ask for a hearing on the junkyard determination in 1999, when he asked for it with his garage, since the two businesses are co-mingled? Thirdly, the RSA 236:121 says junkyards are not assignable. Cited La Chapelle, there s also Corey vs.________. Fourthly, Mr. McKeel cited the New London case. In Hurley vs. Hollis, only within the confines of an existing structure. Mr. Greene hasn t taken the fluids out so that means there are fluids in many, if not
all, the cars. The statute re: fencing shall be closed and locked. On the issue of proof, he doesn t have a vested interest until it s proven grandfathered, which needs to be made by only this board. Also, there s a clear conflict between Mr. Naile and Mr. Greene about the license issued in 1974.
John I have a question for you. What remedy do you think is appropriate in this case?
Leesteffy for the applicants? I think the selectmen s decision has to be overturned, at that point, Mr. Greene has the option to appeal that decision, or not appeal that decision and come back to the ZBA with an application to run a junkyard either through non-conforming use or special exception.
John are you saying we as a zoning board should revoke the license granted by the selectmen or just what are you saying?
Leesteffy the junkyard permit was illegal till the zoning issues were resolved. Cited NBCA vs. Weare about the bifurcation of duties.
John you have stated that the determination of whether this is grandfathered is a zoning question.
Leesteffy I have not found one case where the selectmen were allowed to determine grandfathering, it s always a ZBA determination.
Doug is there a time frame to put up fencing? I thought it was three years.
Leesteffy it is a condition of licensing to fence before licensing.
John I think there was a determination at some point this summer or fall.
Leesteffy that s different than the statutory requirement. I see it as a condition of the license.
Ed N. debated that it applied to a new junkyard. Then he added that selectmen can decide by topography if the fence is needed. It s your contention that the selectmen ordered the fence in 1974?
Leesteffy I believe you misstated the statute.
Ed N. does the rest of statute state that anyone grieved may go to court.
Leesteffy look at the record.
John we ll hear surrebuttal from the opponents at this point.
Robert McKeel cases that talk about expansion, those cases deal with the use of a particular structure. Your own 6.1 zoning ordinance says all non-conforming properties in active use …. may continue indefinitely in their present use. I didn t quite understand the whole issue of the grandfathering. The question is, is the use grandfathered? It s pretty clear it is. With respect to the fence, I m looking at the statute. (He read the part about the topography to which Ed Naile referred.) Getting back to the pollution issue. You saw the tape from the year 2000. You saw on the tape, there were no puddles under the cars, no documentation of any leaks. At some point Carroll Greene should be allowed to operate his business.
Larry I m curious about one thing. We scheduled a site review and got a letter from Mr. Greene saying we were not welcome on the property. How does that square with section 4K1K? The town is authorized …
Robert I don t think it squares. Mr. Greene objected to a public meeting on his land.
John you understand that state law, the right-to-know law, is that anytime the board gets together, there has to be a public meeting.
Robert I d like to ask a question about a section of the zoning ordinance. I think you do have the power to come in and take samples and everything else, but I think Mr. Greene also has the right to prevent a public meeting on his property. That was his concern.
Leesteffy first, case law 2 fencing requirement. Second, can you provide any evidence that in March 2002 the selectmen waived the testing requirements? Third, you suggest or said that it s clear it will be an annual event. The decision has to be made by the ZBA. When it s made by the ZBA, that s the final decision. Lastly, I d like to refer you to section 8.8 of the Deering zoning ordinance. How that gibes with the language that you read.
Robert section 8.8 was adopted after Mr. Greene established the non-conforming use
Leesteffy no non-conforming use may be expanded. Please rectify or clarify.
Robert the real issue is whether he stopped business for over a year or expanded. I misunderstood. Thought you were saying that each year before Mr. Greene was able to get his permit from the selectmen, that any zoning violations that anyone had come up with that year would have to be determined by this board. If you re not taking that position, I withdraw my comment about the annual event.
Leesteffy if there s an expansion or something that requires a variance, but not the question of grandfathering or special exception.
Robert I didn t represent Mr. Greene in March. (Discussed fence.)
Leesteffy do you have any evidence of it?
Robert I don t know what the selectmen did. With respect to your wanting me to cite cases? What was the first part of it?
Leesteffy reversing the burden of proof.
Robert I thought at the beginning of this hearing that you got up and said Mr. Greene wasn t a party and he should come before the board on his own behalf and ask for grandfathering. I think that you folks are the applicants and petitioners and you bear the burden of proof.
Leesteffy my point was that there s nothing in the administrative record that shows that he bore his burden of proof in order to let the selectmen make that determination. He has the burden of proof.
Gary Bono the lawyer mentioned there was no evidence Carroll Greene harmed anyone. Then why is there 70 times the allowed MTBE in a well on his property? I would say that is ample proof of harm.
John I will summarize.
The applicants have raised 3 broad issues. The first point - it is the ZBA and not the selectmen who deal with grandfathering. Second - the property itself is not grandfathered. They submitted documentation and testimony from the neighbors. The neighbors said there didn t used to be a salvage yard there, even though fuzzy about the dates. The neighbors testified that, if there was a salvage yard there, it was just a few cars and it wasn t really a commercial operation. Therefore, if it did not legally exist as a commercial entity prior to the enactment of the zoning ordinance, it is not grandfathered, which means it is unlicensed. Third, even if it were grandfathered, it has expanded far beyond that, and more in recent years. There s testimony from people
familiar with the area and they have tracked expansion in recent years. Last it is not in conformity with the ordinance. There were a number of things cited. One of the requirements is that it not a nuisance and that it not harm the public. There were numerous examples cited as to how this has harmed the public from well pollution, there was reference made to a report from Mr. Pendleton, Mr. Cobbett testified and I would have to say he qualified as an expert as to his opinion on where the MBTE contamination in McAlister s well in particular is coming from the junkyard.
In opposition to this, there was some documentary notice showing that, prior to 1986, the salvage yard or junkyard operation was licensed by the board of selectmen on a number of different occasions. There s proof that there was a hearing by the board of selectmen in 1983, which predates not only the zoning ordinance of 1986, but also the interim zoning ordinance enacted in 1984. Ms. Jenkins pointed out that there was a discrepancy between Mr. Greene s and Ed Naile s testimony about where the salvage yard was. Mr. Greene was very emphatically saying that the salvage yard has always been on lot 299, the back lot and that the repair business is on Second NH Turnpike. There was not a lot of testimony from the opposition concerning expansion of the non-conforming use. There was some
testimony that there was always a salvage yard, but not much on when expanded As far as the pollution of the wells and nuisance aspects, Mr. Greene feels he runs the business in accordance with standards and regulations put out by the state of NH. He feels he takes a great deal of care to run a clean operation.
That s my summation. Does anyone wish to correct any part of that?
Leesteffy the letter from Southwest Regional?
John it s part of the record.
Ed N. spoke to the discrepancy of his and Mr. Greene s testimony. He said that Mr. Greene can clarify that. Let the record show that.
John public hearing closed. We will go into a deliberative session. I would suggest we spend most of out time tonight trying to figure out when we will next meet and deliberate. While it will be a public hearing, the public is always welcome to come, there will not be any comments or testimony from the audience, but it will be open deliberation by the board.
Next Meeting: The next regularly scheduled meeting will be on January 22, at 7:00 p.m.
Adjournment: The meeting was adjourned at 11:26 p.m.
Respectfully submitted,
Deborah Matthews, Clerk
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