February 26, 2015


Call to Order

The meeting was called to order at 6:33 p.m. Selectboard members Lewis Sumner, Earl Holtz, and Edee Edwards were present, as were Planning Commission members Sirean LaFlamme, Stephan Chait, Meggie Stoltzman, and Brian McNeice. Bill Pusey was absent. Nicholas Bartenhagen, Susan Kelly, Jesse Ferland, Doug Grob, Lesley Pollitt, Mary Horne, Janet Taylor, John LaFlamme, Marilyn Allen, Bonnie Brown, Norman Fajans, Jim Coughlin, Jack Rossetti, Anthony Blackett, and Robbin Gabriel were also in attendance.

Changes and/or Additions to Agenda


New Business

Discuss Town Plan as it Relates to Act 250 Application (Denison/Ashfield Quarry)

(Note to Reader: All mentions of numbered comments within the following text refer to the Planning Commission’s written comments/queries, submitted to the Environmental Commission on September 17, 2014. Full document can be found on the town web site; see 2014-09-03 Planning Commission Special Meeting Minutes. To access full Town Plan text, go to “Town Plan Re-Adopted” link under the Reports tab on the home page.)

Edee Edwards stated the purpose of this meeting was to discuss Criterion #10, the Town Plan portion of the current Act 250 application. Specific reference is made to traffic in the Town Plan, and Edwards found this had not been addressed in that portion of the Planning Commission’s comments and queries relating to Criterion #10. In the Act 250 application, Schedule B contains a section addressing the Town Plan, Exhibit 26 has information on the plan, as does Exibit 31, which was submitted in response to the Environmental Commission’s request for more data. Exhibit 26 and Exhibit 31 both refer to statements found in the Town Plan as Halifax implementation guidelines, but those statements are actually the town’s response to state planning goals. Referencing these erroneously labelled implementation guidelines, the application concludes that the town plan has a goal of encouraging the reasonable extraction of earth resources. The Planning Commission pointed to this error in their Comment #27, but that comment also contained an error in that it mistakenly quoted Town Plan goals rather than state goals when describing the original inaccuracy in the Act 250 application. Edwards wants to be sure this misstatement is brought to the attention of the Commissioners during the next Act 250 hearing, as the state goal appears to be more encouraging of mining operations than the Halifax town’s statement. Stephan Chait suggested the error should be identified, perhaps in writing, with a notation that the state goal should be substituted for the town goal within Comment #27.

Edwards read aloud the Earth and Mineral Extraction Policies section on page 38 of the Town Plan, recommending these policies be highlighted in the Criterion #10 discussion. Two gravel operations are active in town today; one off 112 and one at the Moss Hollow/Green River Road corner. Both, Edwards noted, are on paved roads. Jack Rossetti asked whether either of those two gravel pits were on conservation land (no), and do the state goals apply specifically to conservation lands (again, no—they are generic).

Edwards moved on the the second paragraph of Planning Commission’s Comment #27, advising that, for clarity, the statement should make direct reference to the Town Plan’s recommendations made for village, rural residential, and conservation lands, rather than stating the negative: that the town does not endorse commercial activities for the conservation district. She had similar advice for a revision of Comment #28, which speaks to applicants’ Exhibit 31 statement that “earth extraction” is considered to be a resource industry in Halifax zoning regulations definitions. Comment #28 remarks on the confusion of terms, which will be clarified during the zoning rewrite process, but should also include the specific conditional uses allowed within each district. Under Comment #29, town goals 3, 4, 5, 9, 15, and 17 should be included in addition to goal 16.

Bonnie Brown wondered whether drivers on Stark Mountain Road, on the proposed quarry truck route, might choose to take alternate routes rather than risk an encounter with a truck that might necessitate backing up. She also read another sentence from the Town Plan, under Earth and Minerals (p. 37, final paragraph), “[extraction operations] . . . can also have significant adverse impacts on neighboring properties through air and noise pollution and traffic congestion . . .” Edwards then quoted Land Use Policies in the Town Plan (p. 19, item #3); “Protect the health and safety of home owners as well as the natural beauty and rural character of the town by directing appropriate new development that is outside the Village District along currently maintained roads.” This, too, should be included in the commentary, she said. The proposed quarry is not on a town-maintained road.

As a point of order, said John LaFlamme, you’re doing a lot of talking as a Selectboard member about a document that was drafted, created, and voted on by the Planning Commission. He suggested letting it be known the document was being edited at this level, or sending it back to the Planning Commission for review. Page 3 of the town plan, said Edwards, states that in matters of interpretation it is the job of the Planning Commission, in cooperation with the Selectboard, to review and interpret. I am not editing their document, she continued, I’m suggesting we make sure we state our concerns in the hearing where I will be representing the Selectboard. Traffic is talked about in the Town Plan. Concerns can be expressed by the Planning Commission, the Selectboard, or both. Sirean LaFlamme commented that the Planning Commission had not spent much time on the traffic issue, as John Bennett had advised that was primarily a Selectboard topic.

Meggie Stoltzman and Edwards both remarked they had flagged item #6 under Town Plan land use policies, but did not think there was a direct reference to that item in the Act 250 application. Edwards had also flagged the third and fourth sentences in the opening paragaph of the land use section; “Also taken into consideration are the present and probable road systems within the town, other existing town infrastructure and the goals and policies stated in other portions of the Plan. Public investment and infrastructure exert a major influence on where development occurs and should be compatible with maintaining the historic development patterns of the town.” From the next paragraph, she read “The town should encourage activities that embrace the historic settlement patterns of the town, have a minimal impact on the finite natural and fiscal resources of the community, promote resiliency in the face of natural disaster, and which do not put the lives and possessions of property owners, and the lives of our emergency responders, at risk.” In reference to roads, a portion of the first full paragraph on page 51 of the “Transportation” section, reads thus: “The capacity of Halifax’s roads and bridges will continue to play an important role in defining potential opportunities and limitations for growth throughout the community. Steep, narrow, rural roads, for example, are less likely to be targeted by developers for extensive housing or commercial development due to access difficulties. Keeping such development away from these more remote areas has the distinct advantage of helping the community to avoid higher costs of road maintenance.” Edwards also cited item #3 under “Transportation Policies” (p. 52)– “Require that new development not result in an undue financial burden on the Town by necessitating highway expenditures which are in excess of those anticipated within the budget for roads, bridges, and equipment,” and item #7 (p. 53), “The town will resist efforts to upgrade unmaintained rights of way to a higher classification.”

Bonnie Brown quoted portions of item #6, also under Transportation Policies,” “The town should adopt an expanded highway policy that specifically addresses class 4 roads and legal trails. This policy should require a permit for limited changes in the physical condition of these rights of way. All costs and liabilities associated with alterations should be borne by the petitioner . . . The policy should focus on retaining as much of a trail’s original character and recreational value as possible.” Brown thought TH52 was classified as a trail. Edwards advised the Town Facilities and Transportation map in the Town Plan defined TH52 as a class 4 highway, unpaved, impassable. If it’s class 4, asked Jack Rossetti, does someone have the right to have it plowed? If Brad [Rafus] were here, I think he’d say no, answered Earl Holtz. The town does not plow or maintain class 4 roads, said Sumner. But there would still be public access?, asked Doug Grob. Yes, several board members responded. Holtz noted there were several instances where class 4 road sections were plowed by the town for the convenience of the highway crew (i.e., to provide safe turnaround space). Edwards remarked that the first 100 feet of TH52 where its eastern end intersects Jacksonville Stage Road has been plowed by the town historically, due to confusion over whether that portion was class 3 or class 4. During the current Act 250 process the town has learned the western end of TH52 is class 3, while the eastern end is class 4 road. Edwards said she advocates the creation of a class 4 roads policy, and that the town should also consider cessation of plowing on certain class 4 road sections.

We still don’t have an agenda for the next Act 250 hearing (March 6th), said Edwards. The cancellation of the February 18th session means the Commission still has Criteria 5 and 9 to deal with, said Chait, as well as those criteria incomplete at the close of the first session, and the balance of criteria as yet to be addressed. There may be an additional session, as yet unscheduled.

Is the Act 250 hearing asking us to make an interpretive judgment of the Town Plan?, asked Edwards. If so, we could say we think it is in conformance, we think it is not in conformance, or we don’t wish to state. Is that a question to the Selectboard, asked Chait. The Halifax Planning Commission in cooperation with the Selectboard, Edwards responded. This theme generated extensive discussion; partially detailed in the following text.

My feeling, said Holtz, is the Act 250 process has to run its course, and we should understand what that is before we made a judgment. They [the applicants] still have to come to the Town for a permit, added Sumner. Edwards said that outside of the Act 250 process the town would not have an opportunity to state a position on the application. We are not the decision-makers; our town attorney advised that many towns do not state a perspective, but some do. Brian McNeice believes a Board decision would carry considerable weight with the Commission. Although it is not phrased as a direct question, Criterion 10 is asking whether the application is in compliance with the Town Plan, said Chait. Act 250, he added, seems to take all the details of a project into consideration and look for ways to mitigate concerns. No one stands up and says, “I am opposed to this project for these reasons.” If I were a Commissioner I would ask who is for, who is against, and then at some point make a decision. There seems to be an implicit assumption we look at all the details and never make a big picture decision. Act 250 has been in effect for 45 years, said Sumner. It went into effect in 1970. Edwards had read that 98% of projects are approved. Sometimes, added Sumner, approved projects don’t actually come to pass because the conditions placed on them are too expensive. Marilyn Allen noted the town has the unique position of statutory party, an indication of how important the Environmental Commission considers the town to be in the process. Act 250 has come under much pressure to dilute—to grant applications. Restrictions continue to be lifted. People really concerned about a project have to band together, raise an enormous amount of money, hire lawyers and consultants, to fight an applicant who has spent an enormous amount of money. We should not, as ordinary citizens, be in that position. If the town states a position in the Act 250 process they are more likely to be heard. Rossetti thought the town should take a stand; in other places I’ve lived, he said, the town acts first.

My personal perspective, said Edwards, and I’m willing to take a stab at whether this belongs to the town’s thinking, is that the risks of this project and the costs of this project to the community as a whole are not going to be beneficial to the town as a whole. A person’s right to do as they wish with their property is not unlimited, offered Chait. Abutters have rights, also. We don’t know the full details but the proponents’ analyses identify, in terms of acoustics and several other elements, what will and may not impact. One of the things we talk about in the Town Plan is not having adverse impacts. The proponents say “not unduly adverse,” which to me is still adverse, Chait concluded. We would probably be better off not making a choice until we hear both sides of the story at the upcoming meeting, said Nick Bartenhagen. I’m asking you to postpone any decision until after hearing both sides of the story. This group of people (Selectboard and Planning Commission) cannot have one-on-one conversations, said Edwards. If we are going to present a perspective, and I’m representing what the town as a whole, through the body of the Selectboard, wishes to state, I would like to have that direction.

Brown drew attention to the purpose of the conservation district as stated on page 22 of the Town Plan, saying saying she does not see the proposed quarry is in compliance at all with the purposes and uses laid out for the conservation district. Stoltzman agreed with this statement. I would rather wait for the experts to speak on some of the issues that have been raised, said Holtz. That presents a conundrum because that happens during the hearing. How do you make an informed decision if you don’t have all the information yet?, asked Sirean LaFlamme. I think the Planning Commission has to be careful of what they say, Norm Fajans advised. The members of the Planning Commission are also members of the Zoning Board of Adjustment who in all probability could be hearing this as a conditional use permit. If we get to the local permit stage and people feel they have a conflict of interest, we would need to find alternates for that, responded Edwards. After further conversation concerning the separateness of the Town Plan and Zoning Regulation documents and the workings of the local permit process, Edwards asked whether the joint boards were willing to voice an opinion tonight. I’m not, said Sirean LaFlamme, I think it shows prejudgment. That’s right, said Sumner. We can write a memo expressing an opinion on compliance with the Town Plan once we have all the information from the next hearing session, offered Holtz.

Edwards then offered the following: I would like to make a motion that the Planning Commission and Selectboard in a joint meeting tonight allow the two representatives from those two Boards at the next Act 250 hearing to state that after careful and lengthy consideration we have analyzed how the project to the best of our understanding today conforms with the Town Plan and we have found that there are sections where it is not compliance with the Town Plan. Holtz seconded the motion, which passed, 5-2, with Sirean LaFlamme and Lewis Sumner opposed.

In discussion: The Zoning is the law, said Sumner, the Town Plan is not the law. We’re providing a suggestion to the Act 250 committee, we’re not stating anything about zoning, answered Holtz. Do the Selectboard and Planning Commission vote separately or as one group, asked Chait. It shouldn’t matter, said Holtz. Brown suggested adding the words “because of its location” to the motion, but Edwards said there were other elements of the Plan.

Hearing of Visitors

Jim Coughlin observed that we have a Town Plan, voted on by the town. I think the zoning should follow the Town Plan, he said, not the other way around. We’re working on it, the Selectboard responded. When the conservation district was set up, Coughlin continued, I didn’t hear anybody say they didn’t want a land use permit to reduce their taxes. Now the profits from that avenue have been enjoyed, forget the conservation district, I want to sell my land. That’s not in the Town Plan. There are mechanisms in place to deal with your concerns about remuneration if someone takes land out of land use, responded Edwards. She also mentioned Coughlin’s statement in an earlier meeting referring to a yearly $5,000 application fee, which she believes is actually a one-time fee to the state, paid by the applicant, likely to cover clerical expenses. LaFlamme explained the process by which the Town Plan must be updated every five years and must be in place before the zoning regulations are updated. Without the Town Plan update, he said, the town loses its party status in an Act 250 proceeding and that role is then filled by the Regional Commission.

Doug Grob asked whether possible property devaluation would be discussed at some point. No, said Edwards, we’ve been told that type of information is not applicable in an Act 250 hearing. The listers will take it up at the appropriate time, added Sumner, but we can’t predict what is going to happen. One property sale has already fallen through, said Rossetti, the town should be aware of that.

Sue Kelly thanked the boards for their hard work. You’ve heard us asking you to lead, she said, and I feel tonight you’ve done that.

Other Business


Old Business



The meeting was adjourned at 8:15 p.m.

Respectfully submitted,
Robbin Gabriel
Selectboard Secretary