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Selectmen hold off Planning Board communication on gravel pit violations

September 02, 2009
CARROLL — Planning Board chairman John Birknes was stymied in his attempt to gain permission from the selectmen on Monday night to communicate with town counsel on issues surrounding what has become a contentious topic — further gravel excavations on William "Bill" Rines' property on Route 3 North.

Both Bonnie Moroney and Ken Mills voted "yes" to a motion to table the issue until a letter drafted by town counsel, signed by all three selectmen, and sent via certified mail on Aug. 24 to Mr. Rines could be better understood.

Chairman Chris Hancock voted "no" to tabling the issue apparently in an effort to allow Mr. Birknes to communicate directly with town counsel.

Although now retired, Mr. Birknes noted that he was town counsel in the town of Dartmouth, Mass., for more than 20 years. He explained in detail why he disagreed with town counsel's interpretation of the law and why he is concerned that the town is setting "a dangerous precedent" in giving Mr. Rines a grace period of more than three months to come into legal compliance.

This is, in effect, rewarding a person who is violating a state statute, the retired lawyer said.

After all, Mr. Birknes pointed out, the board's letter states clearly that Mr. Rines is "in violation of the Town of Carroll Zoning Ordinance" and "engaging in excavation and bulk sales of excavated materials without a valid variance," since those secured have expired. "You must cease all excavation and sales activities or apply for the required approval to continue such activities by November 30, 2009.

Earlier in the meeting Mr. Birknes reviewed the law, the town's experience with state law, and its own regulations and ordinances. He said he believes that the town counsel — Laura Spector of Mitchell Municipal Group, PA, who recently was appointed to replace Bernie Waugh of Gardner, Fulton & Waugh of Lebanon — gave wrong advice to the selectmen. Or possibly, he concluded, her advice was misinterpreted.

The minutes of the Aug. 24 selectmen's meeting, the selectmen's letter advised Mr. Rines that even though he is in violation he "will be allowed to do the work until Nov. 30. At that time he is to either have all work and trucking completed, or go to the ZBA for a variance to be in compliance. Starting Dec. 1, he will be fined $275 a day if any work is performed. When Mr. Rines questioned the selectmen at that meeting as to why they were taking this approach, they replied that they believe that this would the best way to solve a thorny situation.

Mr. Birknes also said that there were a number of other missing elements that Mr. Rines must supply, including a pit agreement, a reclamation plan, plus a bond specifically designed to cover the cost of installation as well as how to handle a number of other issues.

Carroll was a litigant in another gravel pit case back in 1996, Mr. Birknes recalled. The state Supreme Court overturned the Superior Court's ruling in the Whitcomb case.

Town counsel Spector, he said, appears to have contradicted herself when she advised the board of selectmen to send a letter to Mr. Rines setting out a course of action for him to follow, this after she had earlier sent word to the Planning Board that it was, in fact, the town's "regulator" of excavations.

"This contradicts her earlier opinion," Mr. Birknes pointed out.

A number of members of both the Planning Board and the Zoning Board of Adjustment were on hand, eager to resolve the stalemate that has developed with the excavation project on land owned by Mr. Rines, who serves as the town road agent.

In other action, the board voted unanimously to transfer four liquor licenses at the Mount Washington Resort — the Grand Hotel, Bretton Woods Ski Area, Fabyans, and Top O'Quad — to the new management company, Omni Hotels of Irving, Texas.

The selectmen also voted unanimously to lock-in a price of $2.39 a gallon for no. 2 oil from Dec. 1 to April 30, 2010, for all town buildings. The town consumes approximately 18,000 to 20,000 gallons a year.

Martin Lord Osman
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