Planning Board - Special Meeting

Good evening. The hour of 6 PM having arrived, I will call to order the special meeting of the planning board. This meeting is being broadcast live on the city of Keen YouTube channel. The video is also streamed on the city's website and is posted on the website by the end of the next business day, barring any technical difficulties. All actions taken during this evening's meeting will be posted on the planning board web page on the city website. Copies of the printed agendas are available in the wall pockets as you enter the meeting room. The minute taker is participating remotely this evening. Board members, please be sure to turn on your microphones when speaking. If the minute is unable to hear, they will ask you to speak louder or turn on your microphone. I will now call to order this regular meeting of the planning board and declare a quorum present. Will staff please conduct the role.

Harold Ferington, Robera Master Giovani here. Uh councelor Mike Remy here. Mayor Jay Khan, Sarah Vizani here. Ryan Clancy, Kenneth Cost here, Armando Rangel

here. Um, and for the alternates, uh, Stefan Mayu, Brandon Markan, Tammy Adams, Mike Hayer, and Joseph Kosa. So, um, we are here for a motion to rehear PB-2024-20, um, um, relative to a major amendment to an issued earth excavation permit for the properties located at 21 and 57 Route 9 in Keen, which has been submitted by James Manley of Sullivan, New Hampshire. Um, do you have any thing that you could help us with in terms of clarity here?

Thank you, Madam Chair. Yes, this is definitely something that the planning board is not very familiar with. So, um, I worked with legal counsel to put together a memo for you just outlining the standard of review for this evening. Um, this is not a public hearing. uh this is just a meeting for you all to decide as a body whether or not there's a a reasonable uh basis for scheduling a rehearing. Um so the standard of review uh both the statute state statute um RSA 155E-9 um is the state statute that talks about appeals and that also references RSA 6773 um and both of those set the standard for the board's review as being simply whether a decision or order by the planning board was unlawful. or unreasonable. So, in your consideration of the motion for a rehearing, um you should review whether the motion has set out facts or law that the planning board has overlooked or misapprehended. Um and then the planning board should only grant a reharing if the requester can demonstrate that the planning board committed technical error or that there is new evidence that was not available at the time of the first hearing. Um and then to assist with this analysis, uh there's four questions listed here. The first is, is there new evidence that is being offered that was the request or that the requesting party could not have had available to them uh through reasonable diligence at the last hearing? Is there a legal standard that was misapplied? Was there evidence or facts that were misstated or misunderstood? And were there factual determinations made for which there was no written evidence or testimony provided in support? Um, and then the motion for reharing is

in your packet. And then for the record, I just want to state that there was a response to that motion for re-hering that was submitted by um the attorneys for the applicant G2 Holdings. And then a subsequent response to that response was submitted by um the petitioner, Mr. Manley, through his attorney. And so that information has been provided to you, but it was provided to you just a couple minutes ago. So there are, I believe, representatives from both of those entities here this evening if you wanted to hear from them. You don't have to, though. Tonight is not a public hearing, so there's no um requirement that you open it up for public comment. So that would be at your discretion. Thank you. Appreciate that. Um board members, do we want to discuss a little bit about how to proceed here? Yes.

Thank you. Um, in the initial response letter, it calls into question the uh the standing of the individual requesting the motion for rehearing of their right to ask for a motion for rehering because they're not in a butter to the city of Keen. Um, do we have a any thoughts on that? I mean, if they're not a butter in the city of Keen, do they have the rights to bring this before us at all? Yes, ma'am.

Thank you, Madam Chair. Um so my understanding and I am not a land use lawyer uh but my understanding in reading 155e it states that any interested person affected by such decision may appeal to the regulator for a rehearing on such decision or any matter determined thereby period. So in this instance the uh the person who submitted the appeal is a direct abuter to the overall property. The property is bifurcated by a town line. Um so they are not a direct a butter to the portion of the property that's in Keen. Um it's I I think that's something for this board to decide or consider. So the answer is it's not it's not super clear because that to your point it does read I I brought my book tonight. Um yeah that it an interested person isn't super well defined. Yeah. Any interested person affected by such decision may appeal. So, okay. Well, I I I have a hard time saying that they're not interested or affected as being that close. So, anyone else have any input here?

Yes.

Thank you, Madam Chair. I yeah looking at it it it it is a little bit um vague and perhaps that's by design so that an interested party could be just that interested in the decision and therefore request it. Um and then in the response to the response response after the response um that they say that he is an interested person and they explain why they think he is and reading through that on this response it can't necessarily see a reason to argue it unless I'm missing something. Um,

I kind of want another couple minutes to finish reading because we It is a bit to read, guys. So, the other the other thing we have the option to do is listen to the parties. I don't know if we want to do that anymore at this point, but um whether he has the right to the rehearing. I mean, he is in a butter. He's not a keen resident. Correct. So,

yeah. I just think at first like if we could maybe just like kind of talk it through for a minute together like and and give us and then like take a minute to read as we're going through it. But like if we address that first point of the interested party and we read through the response to the response I maybe we could try to find something that indicates clearly one way or the other. Does anyone know where Sullivan's side um stands on this project yet?

No. Uh, I believe that they have a hearing scheduled for I want to say October 15th or something like that. Um, but I believe they still need to hold a public hearing and have their decision on the Sullivan end of things.

What impact does the Sullivan decision have on our decision? Um the Sullivan decision will impact the portion of the expansion that's proposed to be in the town of Sullivan. Um it wouldn't impact the portion that's in Keen. Um because the they can get to the entirety of the portion that's within Keen from Keen. The inverse is actually not true because Sullivan the portion of their property that's in Sullivan they can't get to unless they go through the portion of the property that's in Keen.

But if Sullivan were let's say not to vote in favor then and what is the regional impact at that point? I mean is if any you know I think that would just change the um the extent to which they can expand their operation. They'd have to keep it to the Keem side, the town of S. Do we know how many acres around the Sullivan side by chance? Yeah. I don't know. Yes, Ken.

So, I'm looking at the response to the response. Is that right? From Mr. from Mr. Manley. and and it says that what's popping out to me is that um G2 erroneously relies on the standard requirements of RSA 6772 and 67 23 rather than another RSA 1559. So I'm not having time to read that and finding out which one really is the one that matters. So it's very hard to, you know, in this situation to to um know what the merit is of that particular argument about erroneously relying on something else.

I don't know if that's the case or not. You have the book. I do have the book. Madam Chair, may I? Um I have the RSA book in front of me, so I'm happy to read those sections.

Code, please. Um but the RSA 155E is the section of state code that deals explicitly or specifically with earth excavation operations. So this is the portion of state statute that regulates and actually gives the planning board the authority locally to regulate an earth excavation operation. Um, and then within the Earth Excavation Regulations section 155-E9, which is the the paragraph that deals with appeals, it references um the procedures specified in RSA 6774 through 15. And so it I think the point that's being made here is that it doesn't reference 6772. I think The the complicating factor is that if you go to 677 4 through 15, I believe in there there's a reference to 6772. That's very common in the state statutes. They are often cross referencing each other. Um, so I think from staff's perspective, the way we're reading this is just going back to the 155E9 where it says that any interested person um has standing to appeal without having, you know, legal u advice here, you know, which is probably not a bad idea. Um, it appears that he may have the right to appeal according to these statues. Am I right or wrong?

I mean, that's the way that I read that. Yeah, it's certainly gray because it is in the section that's referred to the 155E9. It sends you to 6 uh 6774 and 6774 in that section says basically the it was identified that this person didn't have standing. Um it was not a person directly affected under 6772 and refers back to 6772 as that. Um so it's a circular reference error, but it does 155e does tie back to 6772 in that pretty quickly.

And if that's the case that it's any interested party then Why isn't it automatically granted a hearing when an interested party asks for an hearing? Like why would there be a vote on that if it's just an interested party and it's that general? Well, it's pretty clear he's not just interested. He's in a butter. So, it's you know what I mean? Well, he's not. The argument is not a butter.

No, right. And then that's gray too. We don't It just says any interested. So, if that's if that's the case, and I'm not saying it is, I'm just saying if that's the case, there's a couple other ones that they address in here. But if that one is clearly part of it, would that be enough to just to grant that or do we feel like they have to there's four major areas to go through? um you know new evidence the legal center misapplied evidence facts you know misunderstood factual determinations. So if is that enough right there if we determine that that we agree on that is that enough or do we feel like we need to go through each one and sort of pick those apart sort of just a question for you guys.

I think that the idea is basically either one I was going to say I think the idea is basically that any if if any of these questions were found to be okay. That's sort of the way I was thinking, but I wanted to make sure. Do we want to go? Yes, Ken.

Thank you. Thank you, Madam Chair. Um, so we we went through a lot of this with intense engineering studies. You know, it was almost like dueling engineers and they were count point count pointer count and it was very technical and very difficult. But we we worked through it and we came up with a vote on what we thought on based on those engineering studies. So nothing in those engineering studies have changed. They're done. They're done. We looked at them. We made a decision on them. So as I look at these things that are listed on well summarized on the on the motion, but they do capture everything pretty well. Um I don't know that anything has changed since then. So, you know, like the first bullet is talking about dust and noise. And we went through all kinds of studies and engineers and they looked at it and said the vibration likely isn't affecting anything. And um we um the one that could be a little bit interesting to me to just look at again might be the visual impacts. But going past that, the vehicle trips a day I think is taken care of that if they do exceed that then there's, you know, they ought to come back. But we're going on the basis that that's the vehicle trips they told us and and we agreed. Um visual impacts is in is in this motion twice. I don't know if something is missing or it's just a duplicate. Um vibration noise blasting and then it talks about um damage to features significant natural scene of historical importance. And I think we I know I had a lot of interest in the visual zones one, two, and three. And um I think if this was in a visual zone one or two and we were drastically changing the nature, um that would have

meant something else to me. But it was in a visual zone three, which is sort of really the least important in in what we decided as a city. So I think we addressed that. Um, so, so I'm I'm just struggling that there's anything that is different than than before. I got one more thing though. And then and on the V, so on the visual impacts, um, it it will change. I I think we'll see cliffs over time. Um, and again, maybe if those cliffs were in visual zone one and two, that would have made it, at least for me, would have made a bit of a different decision, but they're not. So, I'm just sort of I'm trying to go through this and seeing what what is different that I would change my mind right now.

Yes, Sarah. Oh, it's a great point. And so the first thing I was looking at was just their first argument back and forth about the interested party piece. But when you really look at the reasons why we would approve a rehearing where new evidence um a legal stand I mean then anyone could just have the interested party. So, we I agree with you that there's no new like I don't see anything in here that suggests new evidence um or facts that were misunderstood. I don't I don't see that so far. So, I thought that was a great point, G. Yes, ma'am.

No, I think that was really well said going through it is like I don't I don't think there's any information that's like we didn't have that information. We discussed each of these points when we went through it. I mean to the point of like the the trips per day, we literally put a condition in the letter or in the approval around the trips per day like I think a lot of this was discussed and reviewed as a board. Um we talked about the water table. We talked about the um the view. We I mean we we talked extensively about the view um both from the historic importance and from the adverse visual impacts. We talked about the vibration. We heard testimony around it. Yeah. And we to your point, we had expert opinions. I I'm just echoing what you just said. I I don't see anything that's different than what we originally learned even from the letter from the responses.

So I would agree that going through all those points, we carefully, you know, did consider all of them. But now, you know, to assist in this analysis, the question is, is there new evidence that's being offered? I mean, what at this point is being offered? Yes, Armando.

So, I think that we did cover a lot of these points in our discussions, but I don't think the application addressed all of them. you know, I don't think that um the application really did talk much about, you know, the loss to property values that uh property owners will experience because of this project. Um you know, they did address like the, you know, monitoring of vibration, but there's still um you know, a lot of noise that is that wasn't really addressed like what what will happen because of that. Um, and then you know there's there were I mean we did address the traffic to a certain extent but still like that's there's still some differing opinion about that about whether or not those trips were actually

accurate. Um and then the visual impacts like sure we did talk about them to a certain extent but the thing is there are going to be lasting um effects from this from this project and you know a lot of the public from what we've heard is not uh happy about that you know so I know that you know this this their zones there's one two and three and this could be in a three but still you know it doesn't from what we've heard it's it's still not satisfying. So I think that there's nothing new presented but the original application didn't address all of these concerns.

So the the concerns of property values decreasing and visual impact are still somewhat of a concern possibly. Yeah. and and noise um and dust, you know, and in the land development code. Like those are all reasons to dismiss an application as well. Yes, ma'am. Thank you. Um so, we're not here to vote on whether we agree with the decision we've originally made. Right. It's about is there something new that's been brought forward that we missed that we didn't talk about that we would change it and cause for rehearing? not to

not to say whether we agree with the decision that was made. So that point if if acknowledging that the we did talk about the view, we talked about the view, right? It wasn't like there's new information coming out that it's going to be different than we originally thought. We made a decision based on the same information that's in front of us today. Whether we like it or not is not the question as far as I understand it. Um and on the noise is the same thing. we heard it. And then on the property values, there was um scientific studies submitted by the applicant for the property values piece and a letter from a local real estate agent. So taking those both as expert opinion is how we're supposed to perceive them. Um or how we're supposed to understand them. They did provide evidence on those. So it's not like it was an undisussed point. Um and that's where I have a hard time. You know, I agree that there's a lot of, you know, folks in the public that don't necessarily like the decision that we made. I don't think that there's any new information in what we found to to justify reopening it having it already been decided. That's where I'm stuck.

Yes, Mary.

Thank you, Madam Chair. I I just want to add in here that um there's sort of two things that you should be looking at. One is is there new information information or information that you missed? And I so I think you're doing a good job of covering that. And then the other item is whether or not there was a um see how did we word it? Misapprehension. Basically, did you make any mistakes? Because this is really an opportunity for you if you feel like there were any sort of errors made the first time around um to correct them. So you can as a board decide to revisit something that you've already talked about if you feel like you made a mistake. um in applying it the law correctly or um you know making a decision without any evidence to support it, something like that. Um and then if you were to do that, you do have the ability, it's our understanding, to limit the rehearing to that specific topic. Well, new evidence has not been provided. Correct. There is no new evidence.

That's So does anyone see new evidence that would change our decision? Miss Bazani.

No, I thank you, Madam Chair. No, I don't see new evidence. Um but to Armando's point, the misstated, misunderstood part of it that we are to be looking at for the application and reading through the initial motion for rehearing. I think we need to decide as a group whether or not we did violate [Music] a couple of these and just agree that we didn't or we did or agree that we we did. But I think that that's important to address so that we understand. Um, so if you're looking at the first motion for a rehearing on page five, um, I think it starts actually on page four, but they're talking about they're really focused on whether or not we are protecting the health, safety, and welfare of the people of GE and obviously of Sullivan too, but of the areas around the property and whether or not we violated this by voting for it. I think that that's an important piece. We just acknowledge and and maybe agree or would come to a decision on whether or not we think we did. That way we're addressing each one for the I'm not sure how we defined Mr. Manley. We'll just call him that. um address that for him.

Do we feel comfortable as a board making these, you know, legal decisions is some of the questions? Yes. Well, I don't know if I'm comfortable, but I think we have a lot of information here, right? And we're acting on not necessarily legal, but on did we miss something or make a mistake or or something like that. And so I was wondering if um since you were talking about items if if you can kind of define which ones you want us to discuss and then we could go through those.

Yeah. I just one really just like popped I just wanted to I'm not sure that I think we did. I just know that it's in here and it's a concern of his and I would like to address that concern regardless of how we decide to vote. Um so it does talk about how we violated our own regulations and specifically um here this one. The planning board should not grant approval for an earth excavation permit in the following instances and then they address uh several of them. One of them relates to health, safety and welfare under article 25 of the LDC. We can read through that on page five paragraph two. um a potential hazard to human health, safety and welfare. The environment caused by adverse impacts associated with an excavation project. Adverse visual impacts is mentioned in here. Excuse me. Is mentioned in here and then it goes on to talk about those. So I I I do feel like we did a good job of of of leaning on the experts and that we added in a lot of regulations and um additional stipulations for this particular application and applicant. But I do want to just sort of agree like talk about that if we did or not. I I I personally don't feel that way. I don't based on reading through the notes again, I feel like we addressed them all, but I do think it's important to just talk about it.

Anyone else?

Well, I maybe talk about that. I mean, when I'm reading that, it what it says here in the in Mr. Manley's request is that um he's he's saying that the applicable standard does not require an actual hazard rather the mere potential of of a hazard requires denial. My mind is spinning on that because anything I do when I cross the street that's a has that's a potential hazard whatever you do in life. So how do you not do anything because it's a potential hazard? Now, if it's a legal thing that we have to any potential hazard, you can't do anything. But I'm not don't believe that's the case. So, I it's just not to me holding that much weight because that's just an impossible standard to address in anything.

If someone could, you know, if we have time, maybe we could look at that a little more detail in the RSAs or something. But, so that one, you know, right there, you know, sort of says, yeah, whatever you do, don't do it because it might have hazard. Do we have article 25B of the LDC that so it it quotes it when the issuance of a permit would present a potential hazard to human do we have that 252B just says when all necessary so 252 is prohibited projects

the planning board shall not grant approval for an earth excavation permit in the following circumstances um 252B is just when all necessary local, state, and federal permits have not been obtained. And then C and E he references underneath it. C is when the issuance of a permit would represent a potential hazard to human health, safety, and welfare or to the environment caused by adverse impacts associated with the excavation project. And it goes on to give examples. An E is when the existing visual barriers in the area specified under NHRSA 155E3 would be removed except to provide access to the excavation which is one where they're not removing the barrier. They're not removing that front

right visual barrier. Yeah, it's

Yes. and and I recall and from reading that there was a lot of discussion about hazards like dust and there's going to be dust control and it's going to be managed and it's part of the operation and that was included in how this is going to happen. So it was addressed in the application um vibration and other hazards were addressed by monitoring and checking and and doing what has to be done. So, so I think each of these hazards were presented to us and and addressed with some kind of mitigation or some kind of management for them. Um, the idea of the the visual impact, yeah, it's going to change the visual impact, but uh it's going to change the visual it's going to change the look, but it's doing the things it has to do. It's keeping what we say, it's keeping, as you as you just said, it's keeping the um, you know, the visual screening and things like that. Um, so again, I I I just don't see that we didn't think about that. We didn't debate it. We didn't talk about it. And we didn't come to a conclusion. I don't think we made a mistake. I don't think we made a mistake.

Yeah, I agree. Oh, just question for staff. So, Mary, um, do we need to have the petitioner speak? I know you mentioned not public hearing, but like if if we were ready to do a motion here to see where it goes, do we need to open it up at all or No, it's fully at your discretion. Um if you want to call up the applicant or the uh petitioner for the appeal,

if you're open to it, I would make a motion at this point because I I'm curious if there are folks who if you have something specific that you want us to talk about, I'd would rather talk about it. And I know Armando, you brought up some examples, but if there's something specific you want to go through, we should talk about it. That's what we're here for. Um, but I'm happy to pause before I make a motion to do that. But I just other than that, I'd rather see where we are because we don't have to be five to zero. A motion in terms of inviting the applicant. No, I would move to make a motion based on what we have here. I'm not I'm personally not inclined to open it as a public hearing. Yeah. No, I mean, we've really gone through this extensively.

Extensively. Yes. And and I think they did they laid out a lot of good information in the the motion the the response the response. Yeah. So I I don't feel like there's a lot of additional information I need to move forward. I just want to make sure that we address them. Um but I think we're doing exactly that. So I'm good with that. So basically we have gone through the four topics that we really need to focus on here as a board. Does anyone have any you know doubts on that? Is there new evidence? We haven't seen any the legal legal standards have they all do you feel that they've all been met? Were there any facts or evidence that were misstated or misunderstood? And was there any factual determinations made where there was no written evidence or testimony provided in support? Those are the big questions. If we don't have objection to those, I guess we have to move for a motion. Can

Yes. Can I ask we do a roll call? Thank you for a vote instead of once we go to a motion. I don't want to end up surprised at the end. Okay, that's all.

Um, so with that being said, I would be open for making a motion unless I'm okay. Uh move to deny the motion for rehearing for PB2024-20 relative to a major amendment to an issued earth excavation permit for the properties located at 21 and 57 Route 9. Upon review of the request for rehearing and arguments raised therein, the board determined there were no points of law or fact that were misunderstood or misapprehended. The board did not commit any technical errors and there were no there was no new evidence presented that was not available to the moving party at the time the board issued its decision. I'll second. Okay. All those in favor? Oh, I asked for a roll.

Oh, roll call. Sorry. Sorry. Roberto Master Giovani. Um, yeah, it's yes or no. Yes. Yes. Okay. Uh, councelor I don't know. Councelor Mike Remy. Yes. Uh, Kenneth Cost. Yes. is denying the request correct for the rehearing. Yes. Right. Yes. Sarah Vazani. Yes. Armando Rangel. Yes. Okay. So, it's unanimous. There um will be no rehearing granted at this time.

Well, there are those more item more time items on there that So there are some more time items. One, a potential modification to the site site plan review thresholds. And two, training on site development standards for snow storage and landscaping. All right, make him work hard. All right, we are all set. All right. They didn't give me didn't give me the Sorry.