City of Portsmouth, New Hampshire Board of Adjustment, 25 Oct 2022

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From YouTube: 10.25.2022 Board of Adjustment

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10.25.2022 Board of Adjustment

A

You know, time days until halloween, a meeting for the uh zoning board of adjustment come to order. This is the meeting for october.

B

25Th 2022.. We have one item of new business. Sorry how about that all right! We have one item on the.

B

Agenda tonight this is a re-hearing of the appeal of duncan mccollum attorney for the appellants of.

B

The the july 15 2021 decision of the planning board for property located at 53 green street.

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Which granted the following a a wetlands conditional use permit under section 10.1017.

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Of the zoning ordinance, the preliminary and final subdivision and c site plan review approval said.

B

Property is shown on assessor map, 119 lot 2 and lies within the character district, 5 cd5.

B

So sister is a question from the respondent about whether the the appellants have standing to.

B

Bring this action, I think, it'd be appropriate if we hear if we could hear like a five minute.

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Summary from the attorneys about standing and then we'll take some public comment in.

B

The board to make a decision about whether the standing uh they have standing or not so.

B

The pellets lawyer could give us a five minute summary. Please.

C

Okay, good evening, I'm duncan mccallum, I represent approximately 15 citizens, who are citizen.

C

Opponents of the project in question and on the issue with standing the baseline rule, is that in.

C

Order to have standing the complaining person must have been directly affected by the decision.

C

By the decision of the land use board, and that is the test now, a butter is pretty much automatically.

C

Have standing but that's uh that's not the only test. Anybody who is directly affected by the.

C

Decision has standing to appeal by directly affected. That means you have. You stand in a.

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Somewhat different footing from just everybody else in the community uh if, uh in the case of.

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The north mill pond, if the planting board's decision was wrong and you live on ocean road.

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Or on miller, avenue or someplace, far removed from the location of, in this case, 53 green.

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Street you may be offended in principle because you think it's bad for the environment, but you're.

C

Not directly affected by it, however, if you're a person who lives in the immediate vicinity.

C

Of the uh of, in this case, the project site, 53 green street, or if you are otherwise directly.

C

Affected by it, you have standing to complain now, in this particular case, everybody's on the north.

C

Mill pond has standing, who is a butts. The north has property and budding the north mill pod has.

C

Standing because if the uh there is an insult to the wetlands buffer at the vicinity of the.

C

Project at 53 green street, its effects are not just going to be felt at 53 green street.

C

It's going to affect the entire north mill pond because of the ebb and flow of the tides coming.

C

In coming in from the piscataqua river, it's going to carry if there's waste uh if there's.

C

Waste or construction debris that occurs at 53 green street or if there's other insult to the.

C

Wetlands, buffer, that is going to be carried in and it is going to destroy animal life and plant.

C

Life all around the north mill pond. Now I have a letter from an expert. It stated february, 14th.

C

Which was just before we sort of took our hiatus here. I realize it's been nine months since you've.

C

Seen me, but I have a person who is eminently qualified in environmental matters and she says.

C

Exactly what I've just told you.

C

If there is an insult to the wetness buffer at in the vicinity on any project on north.

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Mill pond it's going to affect the entire rest of the pond, and it's going to have an adverse.

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Impact of anybody whose property abuts the pond or in most cases, anybody who's who's, maybe maybe.

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The next street away, so for that reason, for that reason, the people several of the people.

C

Whom I represent in this case have standing. I submitted a.

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Memorandum of awesome, quite some time ago um again, I know it's been quite some time.

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That we've been here, I hope everybody has kept uh all of the things that I filed way back in.

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January and february, but I even lay this out and I specify four or five of the people who.

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Who definitely have standing by virtue of of what I have just outlined? In addition, I believe.

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There is probably a person or two here in the audience who has uh has the credentials to vouch.

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For what I've said, former counselor esther kennedy, for example, as I understand it, holds.

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A master's degree in environmental science and she will cut. She is prepared to come up here and.

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Attest to what I've just said, so for all of those reasons, anybody whose property lies lies on the.

C

North mill pond has standing, and so we plainly have standard go forward. Thank you. Thank you.

B

Foreign, if the respondent could give a five-minute summary on that.

D

Michael ramstel for the respondent, it is incorrect that everyone on north mill pond has.

D

Stanton there's a four-part test for stamping. It starts with whether you're anna butter or a person.

D

Directly affected by it's been conceded, none of the appellants in this matter are abutters. So then.

D

The four-part test is: are you directly affected, not my test by the way? This is a test from the.

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New hampshire supreme court, the four partest is proximity to the property here, as set forth in the.

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Recap put together by the city staff: for you, none of the property owners are within 1500 feet of my.

D

Clients, development, the type of change and whether how the person's property would be affected.

D

The immediacy of an injury and whether the person participated in previous proceedings.

D

Well, none of the appellants participated before the planning board, so none of them have.

D

Participated in the planning board proceeding. They also don't have either a definitive.

D

um Injury- and they don't have an immediate standing- means um that you have to have a direct.

D

A definitive adverse and immediate impact to his or her property, none of the appellants.

D

Have said that nothing, what you were handed today establishes that either what they're.

D

Saying is not that my client's project is going to adversely impact their property.

D

What they're saying is well if something goes wrong. They're in the construction.

D

And the pond is harmed, then my property could be impacted. Speculation is not definitive and.

D

What we're talking about with definitive what distinguishes the appellants here and a pond.

D

From ordinary ordinarily, when someone has standing is think of it, for example, of if a walmart is.

D

Going in down the street from your property, you know that's going to drive traffic, that's a known.

D

Adverse condition that is a direct impact. It is going to happen. What they're talking about is only.

D

Not that when my client's project is finished, it's going to have any adverse impact on their.

D

Property that would give them standing. I concede that point, but that's not what they're claiming.

D

What they're claiming is, if something happens during the construction, it could harm north mill.

D

Pond, which might impact my property, that's not direct, that's not definitive! That's not immediate.

D

It's not an injury, it is speculation, there's a reason why, in the definition of a butter it.

D

Includes property across from a stream, it doesn't say body of water, it doesn't say a lake, it doesn't.

D

Say a pond: it says a stream because it's smaller and it will be, it will be transversed much more.

D

Easily, just because you live on a pond does not give you standing from a project. That's going in.

D

At least 1500 feet away, that's what they're trying to say here without directly saying it, and it is.

D

Speculation again, the words from the new hampshire supreme court are definitive, adverse immediate and.

D

Direct, it is their burden of proof. It is not our burden to prove they don't have standing.

D

It is their burden to establish and and achieve a satisfactory answer to that test. They don't have.

D

It because all they're saying is if something goes wrong, not when the project's completed my.

D

Project's going to be in my property is going to be impacted as if it was a traffic issue. Thank you.

E

Lee I just wanted to also mention that the assistant city attorney trevor mccourt.

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Is here also if the board during this discussion has any questions he's here.

E

If to answer any questions on standing.

B

Sure short word all right, there's nothing speculative about this.

C

um To to use the uh to use the example that mr ramskill used about, if you open a walmart down the.

C

Street you know there's going to be heavy traffic and you know there's going to be impact well, this.

C

Is the same thing, this is a fact-based inquiry and uh there, as I say, I believe, since it is fact-based.

C

I think I'd like to give anybody who would like to speak who's in the gallery. I think the uh they I'd.

C

Like them to have the opportunity to relate their own personal experiences, because I think there's a.

C

Person or two who actually does live on the north mill pond or have property on it and who knows.

C

Something about the environment uh if you reviewed the record in this case, you know that quite a few.

C

Intelligent uh insightful letters were written by the land use boards by people who who live in.

C

That vicinity, so I would ask the chair to at least give anybody who wants to the opportunity to speak.

C

We've read all the letters we do intend to take public a comment. So thank you. Thank you all right.

B

So uh I have a question of the city attorney. If I could sure if you could help us, please.

A

Hi attorney mccord, um I my question is: is the definition of a butter as attorney ram.

A

Still has correctly identified includes those who are living across from a stream.

A

Stream is not identified, it seems de minimus to me, but there are two people.

A

Involved with this appeal that do live on the banks, so to speak, of the north mill pond.

A

Does the does the city notice people who live across water bodies for projects within.

A

A wetland buffer or some other similar body of water. Well, I think mr smith may.

F

Be appropriate to answer who who gets properly noticed in these cases, I think typically, it's.

E

um Like for zoning applications, it's 300 feet from the subject: property.

E

But it wouldn't be if 300 feet went into the north of a pond it wouldn't we wouldn't necessarily.

E

Notify those that are further than that, okay um and it for a planning board appeal. You don't have.

A

To be in a butter, you have to be directly impacted and um that's the city's understanding as to.

A

um When you're for a butter, you know for a butter notices per se, it's 300 feet. You.

A

Tend to apply a more a wider range for a butter notices than just direct to butter right peter.

E

Right that would include more than just a director butters. Okay, thank you.

A

Well, I think sure, if I could provide a little bit of clarity, of course, I think.

F

um A butter uh is a that's a useful um term. You know, I think, in a butter you know it may.

F

Be very clear that on a butter is a person aggrieved, which is what the statute says, but.

F

That's that's separate. It's a different. um Yes, like a butter. Maybe a person agree but as as.

F

um It was described uh in my memo is a person agreed is a little bit different.

F

What could it would would probably include any about her.

A

Certainly, thank you. I get a couple of questions, of course yeah. If, with your permission, chairman.

G

This has already gone to superior court, correct.

F

uh This was yes, there was a an appeal taken by the applicants. They brought it to superior court.

F

City filed a motion to dismiss and it was granted yeah. So it's already gone to superior court.

G

um Do you know if the issue of legal standing was brought up to them.

F

It was but the issue that was before that court and the reason why the court granted the the.

F

Motion to dismissed was because the case was just improperly before the court at that time.

F

um The court should have properly or should properly and did properly allow this board.

F

To finish its proceedings, have this re-hearing prior to any appeal by any any party to superior.

G

The issue of legal stand was brought up by the appellant sure, but it wasn't. um It was.

F

Not ruled on there was no ruling on that issue. I understand that, but it was brought up correct.

G

um And my other question: the north mill pond is a title estuary correct. That's my understanding.

G

Yes, okay, the applicant's building is on the north mill pond uh that that's right, yeah. Okay, thank you.

B

For the uh our attorney all right, thank you trevor. Thank you.

H

Your question, yes, I just have another question of attorney mcallen. If that's possible.

A

Because we went quickly from attorney mcallen to attorney ram still, so I didn't get a chance.

A

To ask him a question so um attorney mccallum of your clients. You have two that are on the.

A

North mill pond, but they did not one of the criteria that we have to decide, is whether or.

A

Not they participated in either. You know tac conservation, commission planning board from.

A

What I understand or what I remember, none of your clients, participated in any of those proceedings.

C

Well, the participation in any of the proceedings is not an absolute requirement, and at least I.

C

Remember at least one of uh at least one of my clients said flat out. He didn't get. uh He didn't.

C

He didn't get any notice and that if he had gotten notice and was aware of this of these proceedings,.

C

He would have come in and then of course there was the circumstance that you will recall that back at.

C

That time, uh the other project that was getting a lot of attention, 105 bartlett street, was going.

C

On at the same time, so to some extent this one was uh was sort of lost in the shuffle, but it is.

C

Not an absolute, you know, that's a factor to be considered. It's not an absolutely prerequisite.

C

And these people are all these people have all been affected. You know.

C

Several of the several of the appellants have been removed and they have a right to. uh They have a.

C

Right to bring this uh this appeal and contest the planning board's decision, the uh participation is.

C

Not an absolute is not an absolute prerequisite, it's a factor to be considered and nothing more.

H

Perhaps you would uh like to speak to the immediacy of the injury that is being claimed here.

C

Well, contrary to what mr ramsdel has suggested, it's not just going to be while the process is.

C

Going uh is going on uh when the project is finished. It's going to intrude into the.

C

Wetlands into the 100 foot wetlands buffer, it's going to affect the environment on an ongoing.

C

Basis and just as I said, with the uh with the tide going in and out from the piscataqua river.

C

It's going to adversely affect animal animal life and plant life, and that's your immediacy. That's.

C

uh Somebody doesn't have to die the next day after the project is completed or during.

C

Construction for whether to be immediate impact, but there is going to be an ongoing impact and.

C

It's going to start basically whenever they put the first shovel in the ground.

H

With the assertion that it is going to impact animal life in the north mill pond.

H

Is a very strong assertion and I'm struggling to find the evidence to make that a definitive.

H

Statement, well we're not done here. Maybe some of the people who are here to speak tonight will.

C

We'll speak to that I've already presented you with a I've already presented you with a letter.

C

From an expert, in addition, some of the people who wrote letters into the uh both this board.

C

And the planning board and the conservation commission in regard to the 105 105 bartlett.

C

Street project wrote several letters uh and they were very intelligently written letters by.

C

Educated people, one or two of whom were engineers- and they pointed out yes, this is definitely going.

C

To affect yes, this is definitely going to affect plant life and animal life, and it's going to have.

C

An adverse effect on the on the environment, so uh that's uh that's my the the evidence.

C

Is there, but let's wait to see what some of the people who are here tonight have to say.

I

um How would you respond to the uh the developers uh engineer that says that.

I

um Since there's currently no storm water management that they would be improving, it.

I

By adding that and replacing the invasive species with native uh plant life, look these things are.

C

Not supposed to be a trade-off of benefits versus detriments you're not supposed to build in the 100.

C

Foot wetlands buffer period, unless you qualify for conditional use permit and which, in this case we'd.

C

Say they certainly did not, but this business of this business of uh well they're, going to.

C

Do this that and the other thing so there's going to be an overall improvement. That's not the test.

C

That's simply not the test. I was just asking as it relates to the um agreements from the potential.

I

Damage to the mill pond, as opposed to about the wetland buffer stormwater, run storm water, runoff.

C

Is only one aspect of it: that's not the that's not the beginning of the. In the end of the inquiry, as.

C

A matter of fact in the letter that, in the letter that I just presented to you from the.

C

Expert from the conservation law, the conservation law foundation, she draws this distinction between.

C

The two she in regard to the um in regard to the 105 bartlett street project, she said.

C

Well, yeah I'll keep credit where credit is due. They have a good storm water runoff, but there's.

C

Still going to be damage to the environment, if you allow this project to go forward.

I

uh Was there a specific damage that was stated.

B

So, mr, I can't remember that for a second we're actually dealing with standing in this, we're not.

B

Getting into the weeds on the yes, I was relating it to standing because it relates back to since.

I

They're not directed butters, the other avenue of standing is the um being aggrieved. Okay yeah. I.

C

Agree with mr matson, you know it has an effect on standing um anything else. Nope, that's good!.

B

Thank you. Thank you. Thank you. Anyone else all right, so we'll open the public here and if any.

B

Members of public would like to speak in favor of the uh of the appeal. Please come forward.

B

In favor standing.

J

Bill downey 67 bow street portsmouth new hampshire. This is more just a general statement which.

J

I think would clarify something that needs to be clarified. The issue of standing seems to be.

J

Relevant tonight, as an owner of a kayak business for over 20 years involved with three non-profits.

J

That deal with ecology to make the argument that it has to be measured by certain footage.

J

Is just not applicable in this case those are for traditional issues. This is anything but.

J

As we know, water is fluid. Tides come in eight and a half to nine feet. On average.

J

It can affect beyond 300 feet, so I'm asking you for that consideration. Now we wouldn't have the.

J

U.S forest service, if it wasn't for the week's acts which originated here in new hampshire, what.

J

Happened was deforestation, happened. Deoxidation of the of the rivers made the issue possible as.

J

A federal legislation because, once it went across the border to massachusetts, it became eligible for.

J

Federal legislation, so in this case I would argue that not just directed butters, by definition, the.

J

City should be included, but anyone who's part of the water system, because it's not stagnant and the.

J

Quality of water affects all of us, but especially everyone involved on the mill pond. That's all.

J

I wanted to mention thank you, okay. So next we have mark mark broughton, who signed up to speak.

K

uh Do I get my address sure sure uh south mill street here in the beautiful city of portsmouth.

K

uh I have a couple points to make. First, that.

K

I do believe that uh this project does not need to intrude upon. There is no hardship to.

K

The land, as I see it, which I believe is one of the tests. uh It seems to me that this project.

K

Could be built, though it would be much smaller, but it doesn't have to intrude upon the wetlands.

K

And what is the point of having a wetlands buffer if you keep intruding upon it,.

K

uh Yeah, that's it! Thank you just remind them to speak to standings, okay, I'll, just remind the.

B

Speakers we're speaking to standing here and you know, wetland buffers and all that sort of thing.

B

Are not not relevant to standing so abigail and I sorry if I can't hear you I'm sorry what kindell.

L

Okay, thank you, yeah yeah. Sorry, I was near close enough to understand um uh you guys actually have.

L

A letter I real, I I looked at the packet and um you guys have a letter that I wrote to the.

L

I think conservation commission before I was on the conservation commission. I am speaking.

L

Now here, as a resident, um uh you and I live on 229 clinton. I do not live on the waterfront, but I live.

L

On the other side of of the road- um and I look out at the mill pond- you guys uh said somebody.

L

Said how they didn't know how wildlife would be affected by this. Well, I will give you an example.

L

um That has that is on a much smaller scale, ed hayes when he was preparing great rhythm, the the.

L

Building that he rented to great rhythm um brewery um so well, suddenly some trees went down. um They.

L

They were good tall trees and they were within the 50-foot buffer, probably um let alone the hundred.

L

And we had um nesting great blue herons there. While those trees were up, then the trees were.

L

Gone and noise was there light. Was there more light than just the richie lumber um uh parking.

L

Lot and the great blue herons did not nest there anymore, and they were there for several years and.

L

Then, and now they have not been there for several years, so that's one example how wildlife does get.

L

Affected- and that's just from what I see between two houses that are you know, are that are on the.

L

Mill pond and I get to see a slice through that their houses- that's I that's, and that so that's a.

L

Very small segment or window that that I am seeing of how wildlife is destroyed and and just the mere.

L

Cutting down of a few trees, you talk about native plants, going in one you've got this tall building.

L

Really bad for birds, glass, buildings tall, especially you've got light pollution. The.

L

um The foundry garage- I can't tell you how much that must be affecting wildlife. They need darkness.

L

We need darkness, even it's even been proven that our mental health does not do well if, if humans.

L

Do not have darkness during their sleep, so what are we doing with the all these lights burning.

L

All night, long for wildlife who can't escape it. So if these are just tiny examples, but if you take it.

L

It's affecting everything it's got to be affecting the fish that swim in on the high tide and.

L

So the direct, definitive, immediate and adverse aspects that were brought up all of these things.

L

Will happen immediately, the construction alone will damage things. They will not be repaired.

L

um It will take years and years for things to come back planting native things in the.

L

Shoreline it does not negate the fact that there will be much more human activity on a.

L

Regular basis, especially if the greenway goes through and um and that's the whole point of.

L

A buffer is to not have human activity, not have their light pollution. The activity, pollution, the.

L

Noise, the noise pollution, air pollution whatever so, um and I feel and back to the standing aspect.

L

um I feel I am the mill pond is a part of my neighborhood um and really, I think it.

L

Is for everybody even of two blocks away or three or whatever? Anyway, um probably that's.

L

My time or whatever sorry, if I went over, no it's all right. Thank you. So uh esther kennedy.

M

Good evening everyone, esther kennedy, 41 pickering, ave and tonight I come forward to you not only as.

M

A resident, but also as someone who has a master's degree in environmental administration who spent.

M

um Eight years running the marine labs on the isles of shoals who work for unh for sea.

M

Grant and who started the aquaculture program to educate people on aquaculture in the waterways and.

M

Currently, a marina owner who is very dependent and has a lot of knowledge of our waterways.

M

First, I'm taken back by the attorney, calling it upon it's an estuary. It's a title estuary. So in.

M

Question of standing, I would believe, and I would venture to say that everyone that pays taxes has.

M

Standing because between the high tide zone, where the highest point of the tide comes up and the low.

M

Point of the zone, the low tide, because that is public land. You just have to look at cases down.

M

In hampton and rye beach and how people can't close their beaches and can't close their areas.

M

Because that becomes public land, and I would also like to bring up that all we're asking is.

M

And all the people have that I feel I have standing for is because the person that's.

M

Building this property has chosen to go in the buffer zone. The buffer zone affects me because.

M

I live on the water, it affects my eco zone, it affects every ego community. This is an estuary.

M

This is where zooplankton and phytoplankton live and grow in this buffer zone, so fish can eat.

M

So other organisms can eat. We have asked in our master plan not to build and buffer zones just.

M

Look at the master plan, 5.1 start there. It's all about saving and preserving the environment.

M

And I guess, because I'm part of that master plan, I'm a city resident, I should have standing when.

M

Someone wants to build and go into against that master plan and build in a buffer zone.

M

That we know is going to affect our ecosystem. There is a lot of research and you've gotten.

M

Some great letters from people and there's a lot of research, and we know why. Our federal.

M

Government, our state government has asked everyone to stay out of the buffer zones.

M

You don't have to go far to find that research. You don't have to go far to prove that.

M

But we do all have standing. This is a waterway. This isn't a little pond.

M

Which the attorney wants you to believe this waterway goes for miles.

M

It has a lot of things and it's coming back to be honest with you: it had a lot of pollution.

M

A lot of bad things were happening in that estuary and now it's making a comeback.

M

And no one here is asking anything but do not build in the buffer zone.

M

Do not destroy our vegetation in that buffer zone. All you have to do is look at our series.

M

Treatment plant and all the problems we had with eel glass. Well, there's a lot of eelgrass and a lot.

M

Of other grasses in these areas in all these estuaries- and we know we need that- we know we.

M

Need the filtration of the buffer zone to take care of our muscles to take care of our oysters.

M

The filtration in those buffer zones also helps take care of the runoff.

M

So I ask you as you're looking at standing tonight, I truly believe.

M

Because this is an open waterway, this isn't a private little pond on a farm.

M

And I can tell you about those too: this is an open waterway that everyone has. Access to. This is a.

M

Tidal zone where the public has access from the point of a low tide to the point of a high tide.

M

This is a water that goes from the north mill pond down to right by esther's, marina and.

M

Flushes out a couple times a day when the tides change, so I believe anyone.

M

That lives on the water, anyone that appreciates the environment and anyone that voted for people.

M

The voter for the master plan has standing because it's really clear in the master plan.

M

We want to keep our buffer stones. Thank you. Thank you. So next is patricia bagley.

N

Good evening patricia bagley 213 pleasant street. Thank you for microphone download this one yeah.

B

There you go. Thank you for letting me speak. I know this is a very technical board and I am not, but.

N

um I can't uh follow up as well to esther, as I'd like to. She basically said everything that I've.

N

Been thinking I I um somewhat confused if we have rules about our buffer zones, which I I know we do.

N

How did we get here? You know they're there for a reason, so I I, when I googled new hampshire.gov.

N

And read the purpose of of buffer zones put together by the audubon society years ago. I.

N

Looked at the city of portsmouth and did the same same thing about the importance of them. What they.

N

Are meant to keep out and we've violated that so, and my other point is that I feel as though I have.

N

Standing, I am a portsmouth resident. I look at the north mill pond. I walk it sometimes with a friend.

N

It is a part of the fabric of portsmouth and it is title and it has tremendous benefits to all.

N

Of us- and so I feel as a resident of portsmouth, who cares about the city and cares about all the.

N

Components of the city that I have standing, and so that's why I'm here speaking, thank you. Thank you.

B

And uh peter huda, laughs.

B

It's not sounded good evening. Petra huda, 280, south street.

O

um I'd just like to repeat what everybody else said: this is a title estuary, not a pond.

O

Not a creek, which means this affects everyone in everybody, in portsmouth,.

O

That lives by this there's a reason that there are six criteria to be met fully to get a cup on this.

O

I urge you go back to the master plan. Look at it, please save the estuary. Thank you.

B

Is there anyone else that didn't sign up that wishes to speak.

P

Dick bagley 213 pleasant street. um You know we had a council meeting the other night on water runoff.

P

And the status of the north and south mill ponds- and I know you have a difficult decision to make.

P

With regard to standing, I've been involved with one sky when we tried to bring action against the.

P

State for its medicaid policies and the judge stood firmly on standing. And yet, if you listen.

P

To what the attorney for the city has told you there, it is rather soft because it's very hard.

P

To define standing and if we can dump human waste into the north mill pond, I think you got a pretty.

P

Good case for building within a buffer zone is not a good idea. We happen to have a property on lake.

P

Winnipesaukee directly on the lake, and we are restricted to the 50 and 100 fifth zones and to.

P

The comment somebody made about cutting down trees, as you know, there's strict rules if it's more than.

P

Four inches what you can and can't do so it you're really I'm not an expert and I'm not pretending.

P

To be an expert, but I think you have an obligation to the citizenry to look this with some discretion.

P

That the definition of standing and at least get to the real meat of the matter is, was there an.

P

Error in the decision process, you have the right to stand by whatever it is that you believe you.

P

Have a vote so why not let the hearing go forward and why not let this issue of standing be not a.

P

Legal issue, but one of letting the citizenry who, under the master plan, is so involved hearing you.

P

Out as to why you decided what you did and if you feel that any correction is required that you make.

P

Those corrections, it seems logical. I realize this- this isn't the hose is logical. Thank you. Thank you.

Q

Chair with your indulgence, sir page trace, 27 hancock street.

Q

Under the strict definition of the law, I don't live on north mill pond.

Q

But I am a taxpayer and a resident of a city that I dearly love and that city once had two estuaries.

Q

Now it has one estuary that actually ebbs and flows into what I believe is still.

Q

Likely a class b impaired waterway, which involves a different set of rules.

Q

I am not a lawyer and I don't have my masters in biochem or marine biology.

Q

But I ask you just as every other resident that pays taxes as long as there is a park, two parks.

Q

Undisturbed wetlands, that involves me as a resident. It involves an estuary.

Q

That I, like so many other love now. I understand that the minute the developer.

Q

Looked at one board or another and said this is our plan. We go a little outside the plan.

Q

That it was like. Oh okay, it's two inches. It's five inches! It's here, it's there, but, as I understand.

Q

The zoning board of adjustment- it's not just one, it's test of what, if everybody did this.

Q

It's not just this developer with respect it's the next developer and the next and precedent is.

Q

Set and my estuary is gone- everyone else's estuary is gone every one of you that lives in portsmouth.

Q

Has a dying estuary because give a mouse a crumb. They want a cookie.

Q

Thank you so much for listening to me and hopefully you'll understand how much I love that.

Q

Estuary, thank you good night. Thank you all right is there anyone else that would like to speak.

R

Hi, my name is beth jefferson. I live at 111, sparhawk street. I do live on the northville pond.

R

I look directly across now. I look at the parking garage. I used to look at this steeple, but now I.

R

Look at the parking garage, so I'm on the west side. um I was I'm also part of the appellants with.

R

105 bartlett, um and it's just for me personally, it's the same issue again, I'm not a lawyer and.

R

I'm not a scientist, I'm just a citizen and a resident of portsmouth who loves the mill.

R

Pond I've lived there for 13 years. I first year I moved in, I became a member of the advocate of the.

R

Mill pond my partner was the president and I what I know about those those the collection of people.

R

Who've been in that organization, is they've been working for decades to preserve the mill pond and.

R

um I have a beautiful yard and small yard and a garden that butts up against the marshlands of the.

R

Of the the wetlands of the of the mill pond and in my garden there's a an overgrown arborvitae, which.

R

Is not a native plant, but it was a plant that was put in there about 20 years ago, and I want.

R

To take it out- and I called you know, I asked the question: is this something I can do it's my land.

R

It's in my garden, but I look and I see how close it is to the wetlands, and so I call and I fill.

R

Out the forms for the conservation committee- and I talk with them on the phone and then and they came.

R

um Very nicely a couple of the employees came and measured and looked for me to make sure that I.

R

Wasn't removing an arborvitae, a 13 foot by 13 foot arborvitae from anywhere near the 100 foot buffer.

R

As a as a as a resident as a person in the neighborhood, we look out and see if, like my.

R

If my, if my neighbor is throwing something into that wetland like his leaves or weeds, we check.

R

Each other, because we know there's so much work, that's been done to preserve the north mill pond.

R

Its history is ugly and its recent history has been beautiful, so I I really.

R

um I, the only thing I think is important is that if I'm going to live by these rules and.

R

I'm happy and proud to live by these rules, then why wouldn't I expect that of someone else who is.

R

um You know certainly to gain um in a large in a large commercial project, so you know, but for me.

R

Why not for them? Thank you. Thank you. All right is there anyone else who would like to speak.

B

E

Great, they got up first.

S

Mr chairman, members of the board, my name is john howard. I live at uh 179 burkett.

S

Street on the north mill pond, uh my wife nancy, and I bought the house 31 years ago,.

S

So we've seen many changes, abigail's my neighbor and she brought up what I wanted to discuss, which.

S

Is the ecological disaster of light pollution? The foundry place garage is like having a.

S

Cruise ship, at the end of the pond, which is permanently aground.

S

And every single night it just blazes light even on the floors where they aren't parking any cars.

S

And now the new building on the corner of rains and maplewood avenue is blazing late at night.

S

And that affects everyone, even if you don't, if you're not immediately.

S

Adjacent to these colossal buildings, they're building.

S

The light pollution.

S

Thank you. Thank you, sir.

B

All right anyone else, mr ramsey, if you'd like to make a brief rebuttal.

D

So you've listened to a number of people, but standing isn't a matter of feeling.

D

Standing isn't a matter of passion standing as a matter of the law and you've been asked to set.

D

That aside, in fact, you were asked specifically to just never mind the standing thing. Let let.

D

People have standing so that you can move on and discuss other issues in the matter.

D

Why can't you do that because you're the zoning board of adjustment? You are a quasi judicial.

D

Functioning board you've taken oath to uphold the law. You take an oath to follow.

D

The law there is a test for standing, no one out of all of these people who came up here.

D

Offered you a direct and immediate or a definitive adverse consequence to their project. Instead,.

D

You were asked well, what's going to happen to the water. Here's the only thing that we know.

D

About this project's impact on that water, for the first time, there's going to be treatment to.

D

The storm water that goes into that pond, that's the only thing we know that is going to happen.

D

To that water and that's an improvement, that's an improvement to the pond and that's an improvement.

D

That doesn't have any adverse consequences on anyone's property. Here's the other thing that.

D

Seems to be lost in what's been presented to you. People talk about well we're going to change the.

D

View we're going to all the all the disturbance by being closer to the water. That's not this project.

D

And it's not my client's burden to take the next project and the next project and the next project.

D

On its back, we're there for this project and here's an immutable fact about this project.

D

The buildings in this project they're not going to be closer to the water than the building that.

D

Exists there now, in fact, the building will be further removed from the water, as will the the.

D

uh The paved portion of the roadway, so my clients not asking to further intrude into the buffer and.

D

It is a buffer, it's not a prohibition, it's a buffer under portsmouth's ordinance, but my.

D

Client's not asking to intrude further into the buffer. My clients are retracting from that and.

D

They're treating what's going into the water, please decide the standing issue on the law.

D

As you're required to do as the zoning board of adjustment, thank you thank you.

B

Thank you all right. Anyone else.

B

A small bat, oh.

J

You know the lawyer's getting paid to make a good argument, but I wonder how he would feel if this was his town.

J

This is not a static situation. It's very unique and rules is rules. We've.

J

Heard three or four people say that, and just because you've improved it doesn't mean you.

J

Get to have a little bit of flexibility in the backside. I appreciate the developers intent on.

J

Improving that, but just because you do one thing doesn't give, you know exception on the other.

J

So I think the other speaker said it quite well. Rules are rural, regardless of your.

J

Status in this community and it's essential- we know that it affects all of us and to say.

J

That it's only a certain amount of people that make the the definition of standing.

J

You know I'm not the lawyer beth. I know you are, but on top of that, even if that's the way you're.

J

Going to go about this, the second part of my point is just because you improve it, which is.

J

Great, we can all agree on that. That should not give you allowances to break the buffer.

J

It's not just a municipal statute, it's a state statute. You all know that. Thank you.

B

Just quickly, please.

L

I'm just responding to something that the attorney said from the other side.

L

um Trading in a one-story building, uh for um that probably doesn't have much as much nearly.

L

As much traffic as a five-story building will do is not the same thing, and I I do appreciate when.

L

A developer tries to do the right thing, but I'm also seeing enough situations where that well.

L

We're improving the water, so we should be able to. You know the runoff. Well, the runoff wouldn't.

L

Maybe be so bad uh or it it isn't as bad when you have a low volume building and the ground.

L

Gets to do its thing when you disturb that, of course, you have to do something better.

L

Because you've just destroyed the current filtration system that nature has provided us.

L

um Anyway, thanks sorry, thank you all right. That's the last word for just a minute. If I may.

C

um Something occurred to me, as I was sitting here, uh returning to the question as to whether.

C

A real participation is a requirement for uh participation uh uh in the prior proceeding is.

C

A requirement for bringing standing, uh that's true, it's first of all, it's just a factor, as I said, but.

C

Secondly, that test is correct for an appeal from a land use board to superior court, but I'm not.

C

Aware of any such requirement, if you're I'm not aware of any case that says that it's required.

C

If you're appealing from one land use board to another at the local level and there's a logical.

C

Reason why that should not be, which is that, uh in these land use board hearings, they move at.

C

A very fast pace- and the word just doesn't get around, so I think that any uh I think I submit.

C

That anybody who is adversely affected to ought to be able to have standing to bring an appeal.

C

Whether they participated in the prior proceeding before the planning board or whether they didn't.

C

So that's my comment. Thank you. Thank you. All right see one else rise. I close the public hearing.

B

All right board we're deciding on the issue of standing, so we need discussion. Please.

B

I

um So I'm yeah, I'm sympathetic to the the seeming paradox of the lack of uh notice.

I

um By not being a director butter, um so I can get on board with.

I

Even though that they weren't present at previous um meetings that they could still have standing.

I

And I do have concerns about um not the precedence was standing but uh precedence with in terms of.

I

Greeting or granting uh wetland buffer situations, but this we are dealing with this case right now,.

I

um And as much as I would like there to be standing so that we could go on to actually.

I

Hear the case it doesn't matter what I would like or want, um and I still have I'm trouble. I'm.

I

My what I'm struggling with is uh you know clearly if something happened, um there's no doubt that the.

I

Appellants would have standing because something happened, but something uh you know whether it be a.

I

Construction accident, or just something happened, uh that was directly uh observable, um but it.

I

Seems to me that it's this is a a lot of the uh arguments are related to hypothetical uh harm, to.

I

The uh water, as opposed to a definitive, immediate uh and direct impact to the water. Thank you.

H

Can I can, I still ask attorney mccord a question, or is that not permitted at this point sure yeah.

H

With regard to the memo that you uh submitted to provide us with some legal guidance, you state.

H

That the following factors weigh the following: non-exclusive factors when considering. If a party.

H

Is aggrieved? Can you please tell me why you have the word non-exclusive? How does that apply to this.

F

Sure, well, in the um in the case uh week's restaurant corp the the fact, the specific.

F

Facts of that case were was that there's a circle and there was a restaurant on the.

F

Circle seeking relief from the site plan approval from the planning board, which was then appealed.

F

To the board of adjustment- and there was another restaurant kind of across the circle that appealed.

F

That decision to the board of adjustment and I think, recognizing that the term person aggrieved.

F

Doesn't really provide a lot of guidance to local landing sports, it seems to me the- and this is.

F

Not just my opinion, but this is uh the guidance provided by new hampshire municipal association.

F

The new hampshire supreme court tried to give some factors to help local land use boards understand.

F

What that term means, but it is a factual inquiry that will vary from case to case so.

H

Non-Exclusive would would I be correct in saying that other factors other than these four could be.

H

Considered, even if these four are or not it it certainly, um it certainly could be, and I would.

F

Take this chance just to advise the board that uh that the new statute 676 colon 3, which requires.

F

um Specific written factual findings to be made, I'm not sure it's entirely clear that that applies.

F

In in a case of an appeal from the planning board to the board of adjustment. But uh as the attorney.

F

Represents you, I would recommend that you make specific factual findings on the issue of standing.

F

um Either way you you decide just make that and when it comes to uh injury claimed since.

H

The project hasn't been done, yet people don't have standing to make their case about the.

H

Their view of the injury, how isn't that a catch-22 situation like you can't prove the injury, because.

H

You don't have standing and you and you don't have standing because you can't prove the injury.

F

Sir respectfully, I think that when they're talking about injury claimed, I think, there's a difference.

F

Between um you know, an injury that the the community or an individual may suffer as a result.

F

Of some wrongdoing, um you know some tortious act to use a legal term and an injury which is, I think,.

F

What they're trying to describe here, which is an injury to um a person's property, a person's.

F

Property rights: I think those are two different concepts, so we're trying to differentiate between.

H

I think what people are trying to do is make the case that there is a potential injury, but they.

H

Can't make that case unless they have standing, because to make it right. Well, any injury. The.

F

Project isn't built, so any injury would be a um kind of theoretical injury. At this point.

F

But but it has to be specific to the project as it relates to uh the appellants property. Thank you.

B

Any other questions from our attorney, while he's here handy question trevor, um do you know if.

G

All the property owners on the north mill pond received and a butters notice. I do not believe.

F

They did okay, I believe mr stith said that they they did not. They did not likely not from.

H

Okay, but what I hear you saying is that failure to meet one of these four crate, one or more of.

H

These four criteria would not dis automatically by some legal standard disqualify, the appellants from.

H

Having standard not standing, uh no those those, I think, were factors that the court was trying.

F

To provide you to guide you as you determine, who might be a person aggrieved. Thank you. Yes,.

A

So trevor, in terms of those four factors, those are the factors that the supreme court has laid.

A

Down in terms of superior court appeal are those same four factors at play from a planning board.

A

To a zba appeal, um I'm sorry, those factors are specific to appeals from the planning board or.

F

The appeal appeals of an administrative, the decision of an administrative official such.

F

As the planning board to the board of adjustment, it is a different standard.

F

Those are not the four factors for appeals from the planning board to superior court.

A

Right now, I'm a little bit confused, so we have our own special four factors or these this standard.

F

Is yes person aggrieved is the standard, and that standard is specific for appeals from the planning.

F

Board or other administrative official to this board and there's a different statute that has.

F

Different standards for appeals from the planning board or for from this board to superior court.

T

And the four criteria apply to a superior court appeal or to this appeal from the planning board.

A

To us, this appeal right here from the planning board to you and then, if this, whatever decision.

F

You make if that gets appealed to superior court. Superior court would apply its own standard they'd.

F

Have their own standard of who can appeal that decision, which is totally unrelated to okay and.

A

Who can appeal from the four standards that they used when they went to superior court? No.

A

um Okay, superior court will apply its own analysis as to standing. That is the one area where they do.

A

A de novo meaning a brand new analysis. They don't accept our findings. They actually undertake their.

A

Own analysis as to whether or not there is standing here, let me put it this way: a person.

F

Might have the right to appeal a decision of the planning board to the zoning board and that same.

F

Person may not have the right to appeal from this board to superior court. It's a different standard.

H

And the definition of proximity there is no, I mean the 300 yards or fee. That's not.

H

That's not really a defined. No, that's going to be uh just the plain meaning of the term.

F

It's going to be a factual inquiry that you'll have to make. I think it's interesting in this.

H

Case because the estuary is a very interlinked ecological system and so proximity might take.

H

On a different meaning in terms of the potential for harm here so beats this. It's a slippery word.

B

Does anyone else have any questions for mr mccord, I'm good all right! Thank you. Thank you all right.

I

I just want to add another comment, um I'm still struggling with this, uh but um also for the so I.

I

Guess to actually be aggrieved, not only would the waterway have to be affected, it would also have to.

I

Be the waterway then affecting the property of the appellants to have to have standing.

I

Okay say that again, um my previous line of thinking was that if the development affected the.

I

uh The waterway that uh if there was injury to the waterway that that would be enough to have.

I

Standing but it would have to injure the waterway, which then injured the property of the appellants.

I

To to upstanding about, I think that makes sense to me. Okay, I mean I would think that anybody.

H

With property on the waterway, if the quality of the waterway is degraded in some way, it.

H

Degrades the value of their of their property, it's a in my opinion. That's one of the same.

B

U

The way I see this.

U

I don't, I don't think that they're standing in this case, I think that once you get up.

U

And say that every taxpayer has standing, no one has standing, because it talks about the.

U

Very personal and specific injury that you fear in order to bring this case and within all the.

U

Letters that I've been reading from the people with standing, who are aggrieved or feel aggrieved.

U

Almost every one of them is: if this happens, if they fertilize the lawn, if they didn't measure correctly.

U

If, if, instead of something that will happen such as the traffic camps such as.

U

Imposing on their immediate property.

U

For the other concerns which we may share, this building could go up without us. There would be.

U

Light pollution there would be a project there, that's not something we can talk about, but in.

U

Terms of the specific agreements that have been written in the letters I to me, there's no standing.

B

In this end, well um I'll take a different point of view in that.

G

If the city didn't notice every property own in the north bill pond, how do we know.

G

um There was a time where the planning department sent out a butters notice to.

G

The legal requirement for butters plus anybody who might be affected.

G

um That's no longer practiced, um we had a case. We've had two cases and kind of in front.

G

Of this board that are within a stone's throw of my house, uh islington street and melbourne.

G

I didn't receive a milliliters notice. I will only receive in a butters notice if.

G

It directly abuts my property. If it's across the street, I won't receive one.

G

So, even though that a project on islington street six houses down could directly affect.

G

Me, I would have no knowledge of it, because I never received an embutter's notice, so.

G

um I tend to think that anybody on north mill pond would have standing because it's a title, estuary.

G

The projects on north mill pond anything that happens to that project could, if could have an.

G

Effect on that person's property will it. I have no idea, I can't see in the future.

G

But it's the city's responsibility to let those people know and if they didn't do that.

B

Well, deep city's responsibility right now to send notices to people who live.

U

Within 300 feet of the property, that is the city's responsibility and it fulfilled it.

U

No, how would the city in the olden days know who would be affected? I mean where does that end.

U

Paul I mean: where does it go, it ends and effect. It doesn't necessarily mean aggrieved it well to.

G

Put it bluntly, it ends with how smoothly and inform the public is about. What's going on.

G

I mean you can throw up your hands, you want, but I mean if a duplex going on islington.

G

Street, that's six houses away and I don't get it in butter's notice that could directly.

G

Affect my property, could it not? Yes, I'm just saying that the city met its obligation, no.

G

It met its legal obligation, yes, and this is illegal okay, but my point is that.

G

If a project is going up on a body of water, anybody on that body of water isn't butter.

G

Because this project is on a title estuary where water is flowing, I mean we wouldn't even have this.

G

Discussion if this was an enclosed pond, a lake, if somebody was going to do something like this.

G

Everybody in the lake would get in the butters notice, regardless of how far that long depends.

G

On the size of the lake, obviously, but this is a tidal estuary, so the water in this body.

G

Is going to flow in and out so my personal feeling.

G

Is that the property owners on the north mill pond are a butters for this project?.

G

Be it across directly across the pond upstream downstream. That's just my thinking! That's all.

B

You know I'd just I'd say I was reading the memo that we got from the city legal department.

B

In the in section two of standing, it says, standing is a factual issue for the board.

B

To decide on a case-by-case basis, and it goes on to quote the rsa, which says that.

B

Court advised that the board of adjustment weighed the following non-exclusive factors when considering if a party's agreed, so that's means you don't.

B

Have to meet points one two, three and four. Those are just factors to consider.

B

In the standing is a factual issue to the board to decide on a case-by-case basis,.

I

Yes, um so the I don't want to get distracted from whether or not there was notice received, because.

I

The the the thing I'm trying to focus on is, if they're in a butter, they definitely have standing.

I

um But even if they're not in a butter, they still could have standing. But if.

I

They weren't a butter that would settle it, um but the a butt error is better defined.

I

Than aggrieved is that correct, and we know that these aren't butters or is that not a.

I

True statement: they're they're not they're, not about it, they're not notified okay. So.

I

We have to, they would have to be aggrieved which, unfortunately, is uh not easily defined.

B

um That's kind of hypothetical nobody's agree since nothing's happened over there, yet yeah yeah.

I

That's the potential for and there's a a doctor and I've read recently about where projects are.

B

Denied, because of the cumulative effect that is, you know one one little thing.

B

Over here is one thing, but if you have a bunch of little things, they add up to a big thing. So.

B

Yes, emergency, so I think our job here is to see whether or not using these four and on.

A

Exclusive tests criteria, um whether or not these people have standing during this, I.

B

Think our job is to that's a factor to consider. I don't think that's a hardened fast definition.

H

Yeah, I agree with that. I don't think we're limited to those four tests well, which is.

B

Why you know says standing is a factual issue for the board to decide on a case-by-case basis.

B

So this is mr mcdonald, I think what you just said is uh the point.

V

The legislature wrote the laws the way they wrote them for a reason.

V

The reason is they're throwing responsibility for their decision over the wall, they're not giving.

V

You a definition of what's aggrieved. What does it mean? You know if you cause me grief, I'm aggrieved.

V

I'd like to see anybody put that into law and, and so at this level, boards at this level seem.

V

To be the ones that are going to have to make the decision about what a grieved is.

V

Because the legislature won't do it.

V

So well, I I think that the grieve term does come from the legislature, 676-5 roman numeral, one.

A

And then the courts have set out the criteria for trying to figure out what aggrieved means to guide.

A

uh Land use boards in this analysis, but nobody's answered the question: what constitutes grievance.

A

It's for us to figure out. That's what I just said. We probably ought to just do it and have a vote.

B

Well, if anyone is feeling bold enough to make a motion one or the other, we could talk about that.

H

I'd like to make a motion, I move that the appellants have standing.

H

I don't know, if is that the right way to phrase it close enough? Well, I think that.

A

The draft motion is here on the bottom of page three yeah uh yeah, I gotta open it up.

B

All right: well, we need a second for that motion to proceed.

B

V

I will second that option all right. We have a second.

B

All right, mr rossi, would you like to flesh after a motion please.

H

Okay, here's my motion. The board finds that.

H

The appealing parties meet the statutory requirements for standing provided under rsa 6765.

H

And therefore do for the following reasons: this is a situation in which we're dealing with some.

H

Of the appellants are have properties that border on the same estuary as this project borders on.

H

Estuaries are very complex and delicate ecosystems, and this project involves activity within the 100.

H

Foot setback, wetland setback and therefore it has the potential to damage or alter the state.

H

Of the estuary- and I believe that because of this potential, the appellants have standing to.

H

Make the case as to whether or not that will in fact be the case and whether or not the.

H

The issues you know as part of the appeal have merit.

B

In your second, mr mcdonald, my second, mr rusty, has done a magnificent job of postulating, forming.

V

A motion I couldn't possibly improve on it, so I won't try all right. Thank you all right. Well, I'll.

B

We'll just go to a vote then so, mr mantle, what would your vote be? um Yes and mr mcdonald? Yes,.

B

Miss martinson no miss eldridge, no.

B

Mr rossi, yes, mr matson, no, the chair of votes, yes,.

B

Three, so the vote is four to three. The motion.

B

Passes so we've decided that the appellants have standing.

B

All right, having uh gone through that, if we.

B

Could hear the uh the appeal from the appellate now please.

C

C

Once again, I'm duncan mccallum, I represent approximately 15 citizen opponents for the project.

C

Now, you're here, of course, appealing a decision of the planning board in which it granted final.

C

Sign approved final site approval to the project what the developers are proposing. I remind this.

C

Board that the standard of review of the planning board's decision is de novo, what that means is you.

C

Consider it anew, you are not required, nor expected to defer to any of the findings of fact. That may.

C

Have been made by the by the planning board in its decision, you can take those findings for what they.

C

Are worth but you have to have the rights and the power to totally substitute your opinion.

C

Of the effects that were found by the planning board and just.

C

Set it aside entirely, its findings are not are not entitled to any deference.

C

Now, moving on to the specific basis for the appeal um we'll take the easy one. First.

C

The zoning ordinance requires that, in order for in this particular zoning district.

C

And if the building exceeds twenty thousand twenty thousand square feet, you have to get.

C

A building footprint conditional use permit in this case the planning board did not do that.

C

Proposed the developers proposal is that the uh the building which it proposes to erect is.

C

Going to be approximately 29, 29 000 square feet, or in other words it exceeds the limit limit by.

C

Almost 50 percent now I think, a distinction. um I should emphasize the distinction uh here that.

C

We're not what we're talking about here is not whether the planning board heard in applying.

C

The criteria for granting or denying a conditional use permit and whether it made the wrong decision.

C

Its wrong decision is, it didn't insist that the developers meet the criteria and obtain.

C

A building footprint conditional use permit at all it didn't even consider.

C

That it didn't even require the developers to make a showing that it meant that the project.

C

Met the criteria for the for the building footprint conditional use, permit uh the.

C

Planning board could not properly grant site plan approval without that building.

C

Footprint conditional use permit, so the bottom line is that it's granting it's.

C

Granting of site plan approval was illegal without the without the.

C

Without the conditional use permit site plan, approval could not be granted, and it's that simple.

C

But uh I could stand here. uh I can stand here and talk and talk and talk, but that's the bottom line.

C

If the planning board had forced the developers to show that they met the criteria for for building.

C

Footprint conditional use permit uh and if the planning and if the planning board had.

C

Said, yes, you meet the criteria, so you get the conditional use. Permit then we'd be in.

C

A considerably different situation here and I would have a consider considerably heavy.

C

Heavier burden but where it didn't insist that they even apply for a conditional use. Permit.

C

And it didn't even make a judgment and where the planning board didn't even make a judgment.

C

As to whether the project met those criteria or whether they didn't uh the decision to grant site.

C

Plan approval was probably erroneous, so for that reason you have to reverse the planning board's.

C

Decision and send it back down and ask him to do it over again now much the same analysis.

C

Goes for the decision to uh goes for the decision to allow more than two two stories to the building.

C

Portions of the building that the builders proposed that the developers proposed to build.

C

Would be within 100 feet of the water line in such circumstances, no more than two stories are allowed.

C

Portions of the that's undisputed that portions of the buildings which which they proposed to erect.

C

Are definitely going to be within 100 feet of the water line, and so therefore they're not allowed.

C

More than two stories now the developers claim that, because they're giving a community space or.

C

So they uh so they claim uh they're entitled to an extra story. They will tell you that well, it's.

C

An overlay district, uh you know, because we've got the overlay district, we get an, we get more than.

C

Just uh you know we get more than just two stories, we're entitled to three stories or four stories or.

C

Five stories, or whatever because of the overlay district district well, the developers are wrong.

C

uh The problem with their analysis is that the overlay district doesn't overlay anything. There is.

C

No overlap between the 100 foot, water line and the overlay district, the 100 foot, the 100 foot buffer.

C

Is uh entirely separate entirely segregated from the overlay district.

C

So there's no overlap and the building is not allowed to intrude into the uh into the into the.

C

Excuse me they're not entitled to build a building having more than two stories if they're, if they're.

C

um Project intrudes into that 100 100 foot margin.

C

So again, it's a fairly.

C

Fairly cut and dried, if there was an overlap between the, if there was an overlap between the.

C

100 100 foot buffer and the overlay district. Well, then they could make an argument, but there isn't.

C

Now, as has been pointed out on several occasions,.

C

The zoning ordinance, the provisions of the zoning ordinance in this case are in conflict.

C

But in a case where the zoning ordinance or zoning ordinances in conflict, uh the introductory.

C

Provisions of the zoning ordinance expressly provide where there's a conflict in the provisions.

C

Of the zoning ordinance, the more restrictive provision is to be followed here. The more.

C

Restrictive view of the zoning ordinance when, when the uh provisions conflict is that there are to be.

C

Only two stories, and not three and not four, on top of all of that, as I'm sure you're all aware, the.

C

Zoning ordinance articulates a strong policy of wetlands protection and environmental protection.

C

It specifically says that if, in the case of a conflict with this, the wetlands, uh the wetland.

C

Zoning ordinance and other provisions of the ordinance the wetlands ordinance is to prevail.

C

Now, of course, there are other ordinances that say the same thing they say well now in a conflict.

C

Between other ordinances, uh the height, the height limit as to prevail or the uh or the.

C

Setback requirements that are to prevail, but in light of the strong policy, as articulated.

C

In the zoning ordinance for the protection of the environment and the protection of wetlands.

C

It is the policy of the city that the 100 foot buffer trumps. He overlook overlay, district and.

C

Other other provisions of the zoning ordinance, although in this case to a large extent, there is.

C

No conflict because the over the 100 foot buffer is stops at the borderline of the overlay district.

C

So there is no excuse for allowing more than there is no excuse.

C

For allowing more than two stories on the building, the zoning ordinance provides that in this.

C

Circumstance where you go where you're going to intrude into that 100 foot buffer, you're entitled.

C

To do stories period and not three now. Finally, we have raised a entirely distinct issue and a.

C

In our papers, I don't know if um I hope that those of you who are sitting on the zoning.

C

Board of adjustment last january and february kept the kept all the papers that I filed, but.

C

In some after I filed my initial appeal, it came to light that there was an ineligible planning.

C

Board member sitting on the planning board- and that is something something you have to decide.

C

The ineligible member was ray pazulo. He voted with the planning board.

C

To approve the project because he was ineligible under the case law.

C

uh His it voids the entire vote to approve the project and the reason why he was ineligible.

C

Is that he there's a conflict between the state statute and the at the portsmouth administrative.

C

Code state statute provides that in the city manager form of government, there should be.

C

Only two ex-official members on the on the planning board that are allowed and the other.

C

Seven are to be regular, appointed members, usually citizen members. Now what is an ex-officio member.

C

Member who, in this case the planning board who sits on the sits on the planning board.

C

By virtue of the fact that another position he holds another office or positioned with the city.

C

In this particular case, the city manager is an ex-officio member. Just because of the fact that.

C

She is the city manager because she has the city matters she manager. She is automatically a member.

C

Of the planning board, uh another exofficio member is a member of the city council who was appointed.

C

By the city council, the city council selects who's going to be uh who's going to be a member of the.

C

Planning board those are ex-official members they're. They are members who sit on the planning.

C

Board not because they are citizens who have been appointed by the mayor but and confirmed.

C

If I have voted the city council, but because they hold other offices in the city that automatically.

C

Make them members of the planning board mr pazulo fell into neither of these categories.

C

Under the under the administrative portsmouth administrative code, the code wrongly provides.

C

That the city manager may appoint another member of the planning board so, instead of having only.

C

Two ex-official members, as required by the statute. He got three ex-officio members, the city manager, a.

C

Designated member of the city council and a third city official appointed by the city manager, he got.

C

Three city you've got three ex-officio members, whereas the rsa requires that there be only two.

C

And it also has the unfortunate incidental effect of reducing the number of citizen members from.

C

Seven to six so uh so it just it's just a plain out and out conflict uh of the administrative.

C

Code and the statute, and, of course, I'm sure that you're all well aware that if it comes down to a.

C

Conflict between a statue that has been passed by the new hampshire legislature and the administer.

C

Local portsmouth administrative code that has been passed or implemented by the planning department.

C

Of the city council, if it comes down to a question of which one has to yield the administrative code.

C

Has to yield and this rsas, the state statute has to prevail. So, in addition to the fact.

C

um You plan of the administrative code is, uh is in conflict with the stat that the statute there is.

C

Another reason why the planning board's decision should be avoided and overruled and thrown out.

C

And that is the the plan of the administrative code creates an inherent conflict of interest.

C

uh If the mr pazulo, I forget what his position was with the city, he is an employee of the city.

C

When he was appointed uh by the city manager, I forget what his position is, but whatever it was.

C

He is an employee of the city, and thus he holds his position at the pleasure of the city manager.

C

She has the power of hiring and firing him he he is beholden to her. Well, if that's the case.

C

I think everybody should see that the conflict of interest is obvious because he's not going.

C

To he's an economic exercise, independent judgment on anything he's not if it comes down to a tough.

C

Decision or a controversial decision can you imagine him taking a position that is.

C

In conflict with the position uh held by his boss, he's always going to vote for whatever she votes.

C

For and she and he's always going to vote against, whatever she votes against. So for that reason also.

C

There's an inherent conflict of interest, which is just another reason why the why the arrangement is.

C

Illegal, but the basic reason is it's: in conflict with the statute: there are three ex-official.

C

Members of the planning board instead of two, and there are only six citizen members of the planning.

C

Board, instead of seven as required by the statute, so for all of those uh for all of those reasons,.

C

The planning board's decision approving this project was illegal and it has to be set aside.

C

Are there any questions, any questions, mr morrison? In terms of your last point, however, there is case.

A

Law that says- and this is again with respect to in a butter who wasn't supposed to sit on a decision.

A

um The planning board vote was, I believe, eight to one in the for this project. I don't remember, but.

C

The case of winslow versus holden- let's see town of holderness planning board, says that doesn't.

C

Matter because it is impossible to assist even if it's eight to one, it is impossible to assess.

C

The impact that the ineligible uh planning board member may have had on the deliberations so under.

C

That case- and I cited it uh somewhere in the raft of paper that I filed with the sport way back in.

C

January, uh but that's that's, the holding of that case is it's automatically void because there's.

C

No way to tell what the extent of the influence that the uh ineligible planning board member may.

C

Have had on the decision understood so my second point was that is the holding. In that case, this.

A

Issue was raised, I believe, in the appeal of the workforce: housing for portsmouth housing authority.

A

And the superior court did not give the fact that portsmouth had too many ex-officio members on his.

A

Planning board that much merit if it wasn't raised, there was no reason for the court to rule on it.

C

And we're talking about the same project I was involved of that. So I'm pretty sure I.

C

Would remember if it had been raised, I believe it had, but you know I won't. I won't believe.

A

Her that point um you know, I will say that for purposes this planning this board has changed.

A

Since february and the information that we received uh with respect to mr bezullo and.

A

The ex-officio members didn't come into us until very late today, so I think it's very.

A

Hard for people to for any of us. This is a very no that's, not correct. I raised it.

C

What I sent you today was something written by rick chellman who, as you.

C

Know is the current chairman of the planning board, but now I raise that.

C

um If you'll give me three or four minutes, I I will find it, it was. What I'm saying is. It was.

A

Raised quite a long time ago, but this is a new rehearing. We receive this information a lot of.

A

People who are new, I think that yeah received it today, so it's very it's impossible for us to.

A

You know accept information that late in the day, it's hard for us to go through that. No that well.

C

That's true so far as it goes, but much of what mr shellman said and what I sent you today, which was.

C

A uh a letter that he wrote in april and and his attachments had already been laid out and.

C

A letter I wrote for one thing and in an earlier letter that he wrote so um I'm just I just wanted.

C

That what I sent you today, I wanted to be part of the record. So if there's a further appeal of this.

C

Case, which you know frankly, I'm sure there's going to be. I wanted to be part of the record for the.

C

Superior court, but the issue was raised a long time ago I wrote a letter in which I laid it.

C

Out rick shellman wrote an earlier letter in which he laid it out and if you'll give.

C

Me uh I can find you feeding that attorney mccallum, just saying that you know this is.

A

Something that only three of us were here in february, so I just I just want to state that.

A

um And so you went over the count number one um and some of uh count number two, but I mean.

A

Have you addressed all of the counts in your in your appeal? No, because for one thing,.

C

Unlike the 105 bartlett street project, I am no longer contending that this poor this. This.

C

Board has jurisdiction to entertain an appeal of a wetlands conditional use permit. So you can.

C

Strike that from uh you can strike that from my pleading okay, so you are appealing just on count.

A

One and count three, I don't have the counts uh numbers committed to memory, but whatever.

C

It is I've just reviewed, that's all I'm! That's all I'm appealing on the basis of okay and then.

A

The the second one was for the you touched on a little bit: the building height requirements.

A

For oh two stories, two stories is all you're allowed.

A

That's it. Thank you.

B

Any more questions anyone, mr mcdonald, are we are we.

V

Ready for another new question, we're ready for a new question: okay, tony mccallum, early early.

V

um In your remarks, you were talking about um the the footings and the backfill around the building.

V

And how it was uh going to wind up needing to be more than two stories, and did I correctly.

V

Understand that there was a proposal for some horse trading in there about uh I'll give you.

V

Floor space, if you give me height but not that, but I remember answering a question I think for.

C

Mr matson, we which I said that in uh the the developers consistent argument is, has been both.

C

In this project and the rains avenue project, 105, bartlett street project, the developers consistent.

C

Argument has been well. This is going to be better we're going to improve the project overall. So we.

C

Should be, we should be entitled to invade the 100 foot wetlands buffer, and we should be entitled to.

C

Wreak havoc on the environment, because the end result is going to be better and the point that.

C

I was raising is no no, that's not the way. It goes. You don't trade detriments for benefits. You follow.

C

The zoning ordinance you follow the criteria for the wetlands conditional use. Permit you follow the.

C

Criteria for having for the number of stories you're allowed if your buildings are going to.

C

Intrude into that 100 foot buffer, that's the only point I was being made: you're, not there's no horse.

C

Trading, that's to uh that is to be engaged in here. You either comply with the requirements.

C

Of the zoning ordinance or you don't, if you don't, you don't get your approval. Thank you.

B

Anything else for the attorney.

B

All right, thank you.

B

All right now, we'll hear from the respondent.

D

I'm going to start by asking the board to vote again on the standing issue and here's why. I know.

D

It's an unusual request, but here's why? If you think back to your voting on the standing issue.

D

None of the concerns raised by a single board member, whether four or against standing, had.

D

Anything to do with the only two issues that the appellants are pursuing on this appeal.

D

Every one of them all of the comments had to do with only the issue related to the wetlands.

D

And the wetlands buffer, they have conceded before the new hampshire supreme court.

D

That the zoning board of adjustment does not have jurisdiction over the planning board.

D

Decision on a contin on a conditional use permit, you can think, and I ask you to think about all of.

D

Your comments on the end, the vote, but every one of them related only to the issue that.

D

Is not before this board, there is no they've withdrawn. It they've conceded that you don't.

D

Have jurisdiction over the only issue that you found that any of the appellants had standing on.

D

And so now I'm asking as a matter of law and as a matter of due process to my client that the board.

D

Revote on standing with only the two issues of the appeal that are actually before this board.

D

B

Trevor, could you help us out again please.

B

So, as you heard, we voted that the pellets have standing in this case. The respondent is asking.

B

Us to take another vote and basically nullify that vote. So what what do you think about that.

F

Well, I think the board certainly has. It is certainly within your power to do that. The.

F

Entire process of of uh the re-hearing that was set up by the legislature is intended to give.

F

You, the local land, use board the the first crack at correcting any mistakes that you.

F

Might have made, I mean that's why this case is back here from superior court right now. That's.

F

Why it wasn't didn't just go straight to superior court? It's to give you the opportunity to correct.

F

Any mistakes that you might have made, so I think you certainly can can do that, and I would just.

F

uh I would just reiterate what I said before that you know it's a it's a factual inquiry, the.

F

Inquiry that the board has to make- and um you know when you make those factual findings that.

F

You're required to make by statute um it does have to be tied to the claim. um I think that's pretty.

F

Clear by by statute. So if, if you all believe that the reasons that those factual reasons.

F

That you use to support your decision in the first instance still support your decision for standing.

F

um I think you would you would likely vote in the same way, but if you don't, then you would.

F

You may change your phone all right all right. Thank you.

B

So uh yes ma'am, so I I am disinclined to revisit the the um issue of standing. um I think that count.

A

One does include information about the lot being within 100 feet of the north mill pond and I think.

A

That does relate to the um the reasons upon which we gave standing, which I do not agree with. But but.

A

For other reasons, um I think that I would be very unlikely to revisit that, and you know I have to.

A

Be very honest, just as a matter of practicality, this case is going back to superior court anyway,.

A

Time right, anyone else have any strong feelings, one way or the other. I agree with that statement. I.

H

Don't see any reason to revisit.

I

I also agree because, even though the discussion was all about the wetlands and concerns about the.

I

Wetlands, uh the standing issue is separate from the actual, uh whether it's the two or the three.

I

um And the fact that the wetland cup is not being addressed doesn't affect the fact that the.

I

Standing issue is related to uh being a you know: proximity to the wetlands and all that and- and I.

A

I just want to say that, um assuming this does go up on appeal, the cup for the wetlands is properly.

A

Before the superior court, however, there is a lot of uh court case law that says that the zoning.

A

Board of adjustment still has to do the analysis of the zoning ordinances that do not pertain.

A

To cups before they've, all the administrative remedies have been exhausted prior to going up to.

A

Superior court, so I just think it makes sense to continue. I agree with everything said, and I.

B

Think the you know again, a re-vote wouldn't be unlikely to change. So, mr ramsdale, your request.

B

For revote is denied, so we'll hear we'll hear what you have to say in response to the uh the appeal.

D

So we've already submitted our positions, uh our on the two issues that are actually before properly.

D

Before the board in writing- and I incorporate those you've had an opportunity to review them.

D

If you remember the last time it was here, I actually handed out to the board an analysis.

D

Of the ordinance I'm going to go through that again, but first I want to address the issue that.

D

Was brought up today, and that is the what I'll refer to as either the chillman letter or the.

D

The matter involving mr, I believe it's fazuli or fizulo, and I apologize if I've mispronounced that.

D

um I start with that, because it's plain that that issue is not before this board either.

D

This board does not have jurisdiction over that issue. There are a variety of reasons for that.

D

One it was not raised before the planning board into this matter. It was not raised.

D

In the appellants appeal to this board, it was not raised in the motion for re-hearing to this board.

D

For all of those reasons, this board has no jurisdiction over it, but- and this is the most.

D

Important one, this board lacks jurisdiction over the issue for another critical reason.

D

This board has appellate jurisdiction by statute. It's not a board in equity, it is a board that has.

D

Jurisdiction over what the legislature provides it for jurisdiction, your appellate jurisdiction.

D

Is limited to an appeal from a planning board decision on issues related to the interpretation.

D

Of the zoning ordinance other than conditional use permits or other innovative land use controls.

D

The chillman letter, if you will that matter, that does not in any way shape or form, ask for.

D

Interpretation of the zoning ordinance, it involves the actual composition of the planning board, which.

D

Is not in any way determined by the rules or the members of the zoning board of adjustment. So your.

D

Jurisdiction does not extend to the issues that were raised in the shellman letter or expounded.

D

Upon by attorney mccallum, it is simply not a matter of your jurisdiction and for that reason,.

D

It's not part of this re-hearing procedure; it won't spend any time on the wetlands cup.

D

Issue because that's not before you, instead, I'm going to go straight to the other two issues and.

D

When this issue came up before the city, former city planning, director of the former city attorney.

D

Agreed with my clients on what the law was on these two issues, and that is that, because.

D

53 green street is located in the north end incentive overlay district, a conditional use.

D

Permit or cup is not required for a building greater than twenty thousand square feet.

D

Pursuant to zoning ordinance, section 10.5 a46.10.

D

A building of 30 000 square feet is allowed without a cup if community.

D

Space requirements are met. There isn't anything before you where they dispute that the development.

D

Meets the requirements, including the 20 percent of the lot area, must be devoted to community space.

D

um Previously had been argued to you that the planning board was misled on this point, glad.

D

To hear that argument wasn't made today, I think we demonstrated when we were here before that in.

D

Fact the error on the initial plan was noticed by the attack. It was noticed by city staff was.

D

Noticed by my client- and it was corrected- a note was added. It was part of the record.

D

um Pellets are citing the wrong ordinance provision here.

D

They are relying on ordinance, section 10.5.

D

A43.43, that's not the proper standard. The reason it's not the proper standard is that.

D

4.43 deals with an increased building footprint based on parking requirements. My clients aren't.

D

Proceeding under that, they didn't proceed or argue that before the planning board.

D

They didn't seek approval for that. Instead, the basis of my clients request is 10.5, a.

D

46.10, if the same issue is true regarding uh the issue of building height, it is governed.

D

By 10.58 46.10 buildings are entitled to an additional story in height if the development.

D

Provides the community space required in section 10.5 a 46.20 and again there isn't any dispute.

D

That the development meets the community space requirements set forth in section 10.5 a 46.20.

D

Sections 10.5846.10 and 10.5 a 4620 govern the proposed development at 53 green street for the.

D

Following reasons, this is where it gave you the handout and walk through the ordinance section.

D

10.611 states the rules for overly districts overlay districts apply special rules to manage.

D

Land use in specific areas that may be portions of a single zoning district or that may overlap.

D

Two or more zoning districts, the rules for overlay districts, supplement the regulations.

D

Contained in other sections of the ordinance critically, except as specifically provided.

D

Otherwise, in the regulations for an overlay district, all regulations of the underlying.

D

Zoning district shall apply, however, where there is a conflict between the regulations.

D

Of an overlay district and those of the underlying district, the overlaid district regulations, control.

D

The word trump was used here. That means that the overlay.

D

Districts, control or trump the rules for individual districts like four and five.

D

Section 10a 10.5 a46 states that the incentive overlay districts that in the incentive overlay.

D

Districts quote certain specific development standards may be modified as set forth in.

D

Section 10.5 a 46.10 if the development provides community space in accordance with 10.5, a 46.20.

D

Section 15-13 divine defines development, as quote any man-made alteration of land. A lot.

D

A building or other structure, whether horizontal vertical surface or subsurface, then section 10.5.

D

A 46.10 provides that the building footprint may be increased to thirty thousand feet.

D

To 30 000 square feet and the building height may be increased by one story. 10.5 a 0.46.20 provides.

D

And is entitled requirements to receive incentives to the development standards.

D

Sections 10.5 a 46.21 and 10.5 a 46.22 state. The requirements.

D

But there's a critical difference between 10.5, a 4621 and 46 22.. Here's the critical difference.

D

10.5, a 46.21 states, the requirements quote.

D

For a lot, a lot located adjacent to or within 100 feet of north mill, pond end quote.

D

10.58 46.2 2 states the requirements for a lot that is more than 100 feet from north mill. Pond.

D

Two critical points about that: one, those sections don't conflict: they talk about different lots. The.

D

Second critical point is the recognition that development standards apply to lots adjacent to.

D

Or within 100 feet of north mill pond: that's why it's a buffer! It's not a prohibition, the ordinance.

D

Itself provides rules for development standards located adjacent to or within a hundred feet of.

D

North mill pond, that means it can't reasonably be argued like it, has that the incentives for.

D

Section 10.5 a 46.10 do not extend to lots adjacent to or within a hundred feet of.

D

North mill pond it the ordinance, expressly says that's what the definition is for it. The plain.

D

Language provides that it is long as it's in an overlay district if it involves a lot.

D

That extends adjacent to or within a hundred feet of north mill pond. The development is eligible.

D

For the building height and footprint, incentives set forth in 10.5 a 46.10.

D

It also can't be argued, as has been in writing and and briefly today, that the zoning map itself.

D

Controls and- and I know this is dry stuff and I keep citing the uh um the exact uh uh section.

D

Numbers and it's tedious, but but I'm trying my best not only to make a record here, but also so.

D

That, if you're inclined to actually follow through the zoning ordinance that you have it all in front.

D

Of you, so please just bear with me for for just a couple more minutes, um the zoning map became.

D

Part of the zoning ordinance in april of 2014., it's been amended in a couple of times in august.

D

2015 and july 2016, but none of the amendments have impacted the north overlay district at all.

D

In comparison, the amendments to sections 10.5, a 46.21 and 10.5, a 46.22, became part of the zone.

D

Zoning ordinance in august 2018., in other words a few years later than the zoning map.

D

It's a basic rule of of whether you're interpreting a interpreting a statute or.

D

An ordinance that, when an ordinance is passed, the governmental body that passes it is presumed to.

D

Be aware of the existing ordinances, the existing ordinances that are already on record, therefore,.

D

The fact that the requirements for incentives for a lot adjacent to or within 100 feet of north mill.

D

Pond were amended after zoning map b already was part of the ordinance means it controls in.

D

A conflict of the two further than that, if you look at when the amendment was actually passed,.

D

On august 20th of 2018, the section was actually entitled the introduction to it was requirements.

D

To receive incentives to the development standards to clarify 10.5, a 46.21 public.

D

Greenway requirements for lots within a hundred feet of the north mill pond or piscataqua river.

D

The intent of 2018 zoning amendment was to provide public access to the north mill pond.

D

Via the greenway slash open space and to have buildings step down towards the water and again.

D

My client's building not stepping down to the water from where the building is today. In fact,.

D

It's stepping back from the water, but it is still within 100 feet of the watermark. This.

D

Development achieves the goals of the zoning amendment it it both the city, planner former.

D

City planner and the former city attorney's office agreed that my clients qualified under.

D

The proper and the appropriate sections of the zoning ordinance I just want to touch on.

D

A couple of the sections that that may not have been cited to you by number, but they.

D

Were explained to you in words, and that is this idea of what controls here so section, 10 0.141.

D

Doesn't address that's what was explained to you that well, the more restrictive one controls.

D

But that's not accurate, it is in some context it's not accurate. In this context, section 10.41.

D

I apologize section.

D

10.141 does not address conflicts within the zoning ordinance itself.

D

10.41 specifically states whenever a provision of this ordinance is more restrictive or imposes.

D

A higher standard or requirement upon the use or dimensions of a lot building or structure.

D

Than is imposed or required by another ordinance regulation rule or permit the.

D

Provision in this ordinance shall govern. Therefore, it doesn't address conflicts.

D

In the zoning ordinance, it addresses only conflicts in the zoning ordinance and some.

D

Other ordinance or provision or requirement or permit it, doesn't address conflicts in the.

D

Zoning ordinance, their argument is based on a misinterpretation of section 10.141.

D

The same thing with their argument on section 10.511, section, 10.511 states, when this article.

D

That's the phrase when this article specifies two requirements for the same dimension: for example,.

D

Maximum building height stated in both feet and stories or minimum side yards stated both.

D

In feet, or as a percentage of building height, though more restrictive requirement shall apply.

D

Unless explicitly stated, otherwise, this article refers only to article 5, dimensional and intensity.

D

Standards, none of the standards at issue with my clients project are contained in article 5. None.

D

The building height and footprint standards at issue appear in article 5, a character-based zoning.

D

Thus, the conflict provision that's been argued to. You is completely irrelevant to the proposed.

D

Development there is no conflict among the ordinance provisions. My clients have satisfied the.

D

Criteria and the requirements that are necessary for additional square footage and an additional.

D

um Additional floor and height according to the applicable zoning provisions, for those reasons.

D

The appeal should be denied.

D

Thank you. Oh. Unless anybody has any questions, I'm sorry questions anyone. I've had to ask.

A

So, thank you. So I, if I don't know if you got, we got a staff memo today. Not today. I guess it.

A

Was yesterday um I apologize I'm. I didn't hear what you said: a staff memo about the planning.

A

Board decision- and um you know I I didn't- read the full planning board decision, but it.

A

It seems that the planning board may have failed to cite the appropriate zoning ordinances. I I mean.

A

This project is mostly within 100 feet. Of I mean the lot is mostly within 100 feet of the north.

A

Mill pond and then most uh then, the the other part of it. The smaller part of it is within.

A

The north end incentive overlay district so under 10.611, because it is an overlay. It applies to both.

A

Portions of the lot: that's your argument. Correct, yes, okay and then the other argument is that.

A

um Under 10 a point 10.5 a 46.21 that portion of the lot that lies within 100 feet of the uh north.

A

Mill pond uh is eligible to receive inventives incentives to the development standards. Absolutely.

A

Okay, thank you. Anyone else all right! That's all! Thank you, but I'm sorry, I'd like to go back to.

H

The zoning map, which you brought up versus the some of the well, I don't want to repeat.

H

Everything you said there are parts of the north end incentive overlay, district.

H

That actually are bordering directly on the north mill pond correct or on hodgins creek.

H

For example, uh not at not every part of the north end uh overlay incentive district is.

H

Set 100 feet or more back from the north mill pond, I'm sure that's correct. I don't have the.

D

Map right in front of me, but I'm sure that's correct and the reason I say that is because.

D

um If that was not correct, there'd be no reason to have the separate provisions of 10.5 a 46.21 and.

D

10.5, a 46.22 to 1, being 4 lots located adjacent to and within a hundred feet and 0.22 for lots.

D

More than a hundred feet, so if if if what you're suggesting was not true, there'd be no reason to.

D

Have those two provisions, so I'm sure you're correct, so some lots could be within a hundred.

H

Feet of the north mill pond and not be in the north and incentive overlay district and therefore.

H

Why would 10.5 a46.20 apply to the portion of the lot? That is not in the incentive overlay district.

D

I'm not sure I'm. I I'm not sure that.

H

See the way I read this is that maybe I misunderstood your your question. Maybe I.

V

Didn't say, I think, they're all within the north end overlay incentive district. You.

D

Were asking me whether all of the lots were within 100 feet of north mill? Pond.

D

At least as I understood your question well but they're, all within the incentive district.

H

The lot of this particular project is partially within the north end incentive overlay district.

H

And partially within 100 feet of the north mill pond and those two areas don't overlap.

H

Unlike some other areas where there is an overlap between the north end incentive overlay, district.

H

And the 100 foot setback from the northville pond. I believe this entire project is within.

D

The north and overlay district, because it's a development which includes the lot and the.

D

Building and so the development extends it, the rules for within a hundred feet of north.

D

Mill pond apply to the entire development because of the way that's defined in the.

D

Yeah in the zoning ordinance and I believe that the 2018 amendments regarding the north and.

D

Overlay district, including 4621 and 4622, [music] um actually um render the zoning map itself.

D

Not entirely accurate, I would agree with that. If there were no areas where the incentive overlay.

H

District was not set back 100 feet from the north mill pond, however, since there are other areas.

H

Where it is, I can see where this wording applies to those areas, but not necessarily those that fall.

H

Outside of the incentive overlay district- that that's that's my thinking anyway, thank you. Okay,.

B

So I just say I have one question sure so you you quoted uh section 10.611 the relationship.

B

To underlined zoning issues, yes, where there's a conflict between the regulations of an overlay.

B

District and underlying district and overlay, the overlay district regulations, control.

B

Is reading the zoning ordinance? I start at article one which state the title of the article is.

B

Purpose and applicability, which, to my mind, says that's what this zoning ordinance is all about.

B

So 10.141, as you quoted, says that the provision disorder shall be held to minimum requirements and.

B

Public safety and all that sort of thing whenever the provision is more restrictive or improves.

B

Imposes a higher standard of requirement on the use of dimensions, of a lot building a structure.

B

That is imposed or required by another ordinance regulation or permit the provisions of this.

B

Ordinance shall govern so it seems to me those are kind of in conflict there. Could you explain.

B

Why they're? Not? No! I don't think here's why I don't think they are. I think the plain language.

D

Of each of them, the zoning ordinance, while there's lots of subparts to them, there's only one zoning.

D

Ordinance, there are chapters, there are sections, there are provisions, but there's only one. Zoning.

D

Ordinance so section 10.61 talks about districts and rules for districts, but they're all within.

D

The singular zoning ordinance section 10.141. The second sentence specifically says, though,.

D

When a provision of this ordinance, referring to the zoning ordinance, is more restrictive than.

D

Is it than is imposed or required by another ordinance regulation rule or permit? That's not.

D

Capitalized, like ordinance, is at the beginning, when you're referring to zoning ordinance and.

D

You're no longer talking about this ordinance you're talking about another ordinance and.

D

That's why there's not a conflict between those two things, because 10.61 deals with districts.

D

Within this ordinance, whereas 10.141 deals with a conflict between this ordinance and something else,.

D

That's why it's not they're they're the plain language of them.

D

Eliminates the conflict, there is no conflict there. Okay, thank you yeah. I.

D

Don't think I convinced you and I don't I I would try and explain it, um but but.

D

If you look at.

D

10.611, let me just try one more just indulge me once to try and and section 10 point.

D

Six one one: the first sentence talks about um overlay districts. The second sentence talks about.

D

Overly districts supplement the regulations contained in other sections of this. The.

D

Word this and capital o ordinance, except as provided otherwise in the regulations for an.

D

Overlay district and then again we go to the last sentence: we're talking about overlay districts.

D

Here in 10.611, when it's referring to the zoning ordinance, it is referred to as this and capital o.

D

Ordinance when you look at 10.141, it does exactly the same thing when it's talking at the beginning.

D

About the zoning ordinance, it says: whenever a provision of this capital o ordinance, then you get.

D

To where it's talking about where there might be a conflict- and it doesn't say within this ordinance.

D

It says, then, is imposed or required by another small o ordinance, regulation rule or permit and.

D

Then finishes with the provision of this capital: o ordinance shall govern. I think the plain language.

D

And the use of the capitalization and this instead of the makes it plain that there's.

D

One zoning ordinance and then 10.611 deals with conflicts within districts within this.

D

Ordinance, whereas 10.141 talks about a conflict between the zoning ordinance, this ordinance and.

D

Anything else does that help it does. Thank you. Thank you all right. um So are you, okay, anymore,.

B

So it's a little after nine o'clock now so we'd.

B

Like to take our break now or two yeah, a five minute break so we're in recess.

U

All right we're back in order, so we'll hear public comment.

E

E

That's say whoever all right, so any member of the public that.

B

Would like to comment, please come forward, then the state's your name.

B

Public comment.

M

Esther kennedy, 41 pickering ave and I guess um in listening to the arguments that represented.

M

um You know I do have to question a way of a facility like that on our title zones.

M

I do have to question the impervious layers that are going to be blacktopped.

M

Or hot topped, I know there has been statements of rain gardens in other ways for storm waters.

M

um But it's really the size and the mechanics of this building that I really think need to.

M

Be looked at, I also think in doing some research and preparation for tonight.

M

That I agree that the cup needs to be re-evaluated and really looked at and kind of decide upon where.

M

It fits in our master plan which, as you know, the planning board is kind of in charge of. um I think.

M

There's some things that need to be evaluated, and I would hope that we would um allow them that.

M

Opportunity, so I would encourage you to send it back to the planning board and have a discussion.

M

Have them look at the cup? Have them really clarify? I mean this. Is such a sensitive area.

M

You know there's some amazing things that happen there. I had the privilege of walking.

M

Around actually to look for sewage outflows there, but they're the birds.

M

And the environment and the nature you know we heard tonight that yes, they're, going to.

M

Take care of storm water but that impervious surface unfortunately, flows onto a wetlands.

M

It's like a sponge and no one's thinking of the title elements that are coming into.

M

This wetlands and the weight of a building on those wetlands, this is so close, and you.

M

Know I, I know it's not a point of discussion, but I think all that needs to be discussed.

M

At the planning board, where it can become a point of discussion, so thank you. Thank you.

L

Abigail gandell 229 clinton street I'll. Try not to repeat myself from what I said before, but.

L

Just please remember some of that um that that specific property has very tall trees, they're.

L

Going to take those down and getting back to the native plantings you can, you can do all the.

L

Native planning you want, but if you're taking down big trees, you're changing the habitat and.

L

um And you're doing damage to it. um uh If you, if you spend any time walking out in that area,.

L

There is almost no human or interaction with the mill pond or estuary on the back side.

L

Of that building people, people are not using the back side of that building uh that exists.

L

There now so, you have all kinds of wildlife there. As you got birds in the you got. I think.

L

um Turkey, vultures, I think, were in the up in the trees, and you got. I know people don't like them.

L

But canada geese down on the uh down along the water wave and then it's just a ton of.

L

Birds, all in the middle in the middle shrubbery and the middle heights of the trees and those.

L

Are just the birds, um that's what I can see. um It's not everything else and and as we.

L

um We tend to compartmentalize the environment and we can't so. You can't just take like the.

L

Water versus the you know, and and not think about everything else, if you're damaging.

L

um The the animals that are living there, their habitat uh or the waters where those habitats.

L

um You're damaging the whole ecosystem, um so anyway, um I guess that's it sorry.

B

O

280 south street, in listening to this whole discussion.

O

um It seems to me that a lot of the discussion that was just presented is up to interpretation.

O

And I urge you to look at it from the perspective of the original cup, because when you look at the.

O

Sides limit on this that should have been 20 000 square feet and you needed a cup to go to 29.

O

um Basically, it looks like the work of the planning board was incomplete.

O

They did not look at that or thought they didn't have to look at that, based on their interpretation.

O

So I guess I would ask you or urge you to send this back to the planning board.

O

So they could interpret and clarify that for you, because what I just.

O

Listened to made my head spin and all the numbers that came back and forth.

O

And the little o's and the big o's, I think from your perspective, I would ask for clarification.

O

From the planning board that should have looked at the cup on this. Thank you. Thank you.

O

Q

Hancock street, I know this building. I've studied it.

Q

I may not know it, certainly, as well as the legal team behind me.

Q

But I look at this building. It's a story taller than originally could have been.

Q

Land was given to the city of portsmouth that was useless land. It has a couple of electrical.

Q

Towers on it, we all know the history. So what it means is that the developer can go a story higher.

Q

And the city has land that might be a park and the developer says: well, if I can build 90.

Q

000 square feet: I can build a hundred thousand square feet. That's just made up out of my head.

Q

But the point is that the higher up you can go the more money the city makes.

Q

Because! That's that many more people in that building paying taxes to the city.

Q

Larger building paying taxes to the city- it's not, dare I say, workforce housing.

Q

Which everybody in the city agrees? We desperately need. It's not it's luxury, condos.

Q

And that is the rub in a certain way, because even if you could justify harming an ecosystem.

Q

It's not a building, that's being built for your use or my use.

Q

Unless we can afford it, and certainly not for those people who work in this city day and night,.

Q

It's for people that'll, move here that can afford it, so we're giving our ecosystem.

Q

Of the one estuary that we have a little bit more of the buffer system, it's okay.

Q

We'll only give them five feet of the buffer system, it doesn't matter, but it does matter.

Q

It matters that five feet matters, because the next person down the road is going to say. Oh.

Q

Well, they got five feet, we got five feet, they got five stories. We get five stories.

Q

And it's not helping anybody in this town. There's no workforce housing, there's! No ability to allow.

Q

Someone who wants to live here the ability to live here it's to make money. Thank you. Thank you.

B

C

Good evening, once again, I would like to touch upon a few points that mr rams still raised.

C

During his presentation and to rebut them, he suggested that the matter of the ineligible.

C

Planning board member was not part of our appeal. uh It certainly was part of our appeal.

C

If you look at a document that I filed, uh you know way back when, in january or february,.

C

Entitled objection to stone, creek realty's motion to reconsider zba's decision on appellants motion.

C

For re-hearing at page 12, I lay it all out and I explain why it wasn't why it wasn't raised earlier.

C

What happened was that in one of the late december meetings and the planning board, mr.

C

Chillman and then then, chairman dexter legg got into a colloquy or an argument. If you.

C

Will, uh mr mr chelman was saying: we've got an ineligible member here, but you couldn't.

C

Really read very much into it from what they said or you couldn't tell what was going on.

C

But it piqued my curiosity, and so I looked into it further and sure enough. You know.

C

There wasn't an ineligible member, namely mr pazulo, and I trust the whole history.

C

The whole history of both the uh the events and the and the law, I followed the law and uh show.

C

That he didn't belong there, but that's the re that that is the reason why it was not raised in.

C

My original appeal is back at that time. It was not known to me. It was newly discovered evidence, but.

C

It's all right there uh attached to uh attached to that same document. The objective objection.

C

To stone creek realty's motion to reconsider the zba's decision on appellant's motion for rehearing.

C

Is a copy of my letter to then chairman leg, and also a copy of mr mr chelman's earlier letter.

C

Which lays it all out, he is an ineligible member, he was, he was appointed to that board pursuant.

C

To an administrated, a portsmouth administrative code, provision that conflicts with the statute.

C

And therefore the vote is void and the case has to be returned to the planning board.

C

I compliment my friend mr ramsdell, on both his intelligence and also his imagination concerning.

C

The provisions of the zoning ordinance and the provision that the most, if the to, uh if.

C

The two: if two provisions of the zoning ordinance conflict, the more restrictive interpretation, is.

C

The the one that applies- I don't see that that I don't see that. That idea is that difficult.

C

These zoning ordinance lays it right out section 10.141 of the zoning ordinance says.

C

The provisions of this ordinance shall be held to be minimum requirements for the promotion.

C

Of the public safety, health, convenience, comfort, prosperity and general welfare.

C

Whenever a provision of this ordinance is more restrictive or imposes a higher.

C

Standard requirement upon the use or dimensions of a lot building or structure that is imposed.

C

Or required by another ordinance regulation rule or permit not just an you know, not just another.

C

Ordinance but another regulation rule or permit the provisions of this ordinance shall govern.

C

When this article and fight and then we turn to section 10.511 when this article specifies two.

C

Requirements for the same dimensions, for example, maximum building height, stated both in feet and in.

C

Stories or the minimum side yard stated both in feet and as a percentage of building height, the.

C

More restrictive, restrict the more restrictive requirement shall apply unless explicitly.

C

Stated otherwise by the chairman cited another provision of the zoning ordinance, which I don't.

C

It doesn't come to mind that I was previously aware of, but it says the same thing.

C

Now, as I mentioned earlier in my opening presentation, um the overlay dis, the overlay.

C

District ordinance says well in the event of a conflict this this ordinance, the overlay districts.

C

Provisions shall prevail but, as I pointed out, the wetland zoning ordinance says the same thing.

C

The wetlands ordinance says the same thing, it says and I believe I.

C

Did quote it in my materials in my memorandum in support of appellant's appeal, a planning board's.

C

Decision which I filed way back in december or or january or perhaps february, I quote.

C

The provision of the the wetland zoning wetlands protection, ordinance, sections, 10.1011 and 10.1012.

C

It says where any provision of this section conflicts with another section of this zoning.

C

Ordinance or another local ordinance or regulation, the more restrictive provision shall apply. So we.

C

Have this gamesmanship of both sides saying that well the ordinance that uh that they, they invoke.

C

Is the one that controls and despite what any other ordinance says? Well, the ordin itself.

C

Resolves the conflict if the provisions of the zoning ordinance are in conflict with one another.

C

The more restrictive interpretation applies, it is there in black and white and the more.

C

Restriction, restrictive interpretation in this instance says that if any portion of.

C

A building is within 100 feet of the water line. You can only build two stories. It's that simple.

C

C

Yes, I was just add one thing: we are certainly not relying on the wrong provision of the zoning.

C

Ordinance for our position that no more than two stories may apply. I've cited it.

C

In my paperwork, I hope you've read it. uh If I I couldn't lay my hands on it immediately,.

C

But I've cited it believe me and that's what the ordinance says no more than two stories. If.

C

Your building is going to be within 100 feet of the water 100 feet of the water line, so.

C

I want the labor to the point I think I've said well. I need to say I ask that this board.

C

Overturned the decision of the planning board and send it back to start back to start all over.

C

Again, thank you. Thank you. That's a good question. I did just turn the page and see that the water.

U

Overlay district says the exact same thing that it takes the president. Yes and so that's my point.

U

um The overlay district and then you come back to 10.141 and they want to rule everything.

U

Yes, so why how how do you explain having an overlay district if it's never going to rule.

U

I mean what is the point of saying I didn't say it's never going to rule what I said was if, when.

U

It's in conflict with anything more restrictive. The overlay is not going to have its way.

U

So I don't understand why, then it says that it does have the final it's. Why have that then.

U

Why say that the overlay will take precedent? I can turn the question around on you.

C

Miss eldridge: why does the wetlands protection ordinance? I understand it's the same thing, but.

U

One doesn't it it's hard to know, that's true, especially when there's it's not even an either.

U

Or it's an either or or it is hard to know and the way the zoning ordinance resolves. It is that.

C

The most restrictive provision will apply. That's the resolution call for in several places in the.

C

Zoning ordinance, if there's a conflict, the most restrictive interpretation control you could have.

U

Saved a lot of pages here, if that was going to be the case, I'm just saying I just have a follow-up.

A

So attorney mccallum you had you had cited 10.621.20. Let me try to get my hands out of here.

C

I'm sorry for which proposition for just your what you said before your last point, that you.

A

Cited 10 point I just want to make sure I have the site right: 10.61.20, 10.141 and 10.511 and.

C

Those are quoted in my original appeal as a matter of fact, those are not in the character district.

C

But these are ominous omnibus general provisions. They cut across the entire zoning ordinance.

A

But the zoning ordinance says for incentive overlay districts that the overlay takes.

A

Presidents, over the other sections of the ordinance, the wetlands protection ordinance.

C

Says that in the case of a conflict, the wetlands protection ordinance controls.

C

The other provisions of the zoning ordinance- I just quoted it to you. I understand we're not.

A

Dealing with the wetlands right now, the two remaining counts are whether or not.

A

The planning board earned by applying 10.5843.43 versus um it's the other one, the other 10.58 46.10.

C

All right, let me see if I can, uh let me see if I can find it might take me a minute.

I

What section is the wetlands district one pinpoint.

I

10.621 2, what's right on the next page after overlay,.

C

C

Document that I filed originally because sections 10.5 a to 1.10.

C

And 10.5821.20 of the ordinance are more restrictive and, moreover, because section.

C

10.5821.22 b is specifically intended to address the situation which a new structure is erected.

C

Within the wetlands buffer zone or where the height of the existing structure within that.

C

Zone is to be increased sections 10.582, 1.10 and 10.5821.20 prevail over section 10.5 a4.

C

6.10 and no building exceeding two stories and height is allowed. That's the crux of it.

C

It's right there in my original appeal at page: eight, those are the sections that control they.

N

Are more restrictive than the overlay district and in the case of a conflict they win the fight.

C

Are there any other questions um yeah? I guess I'll ask it's kind of an observation that I'm.

I

Putting together while the the answer is not crystal clear, I think the nuance is important.

I

um Just quickly, looking at the floodplain district, so aside from the more restrictive, reverse, less.

I

Restrictive the floodplain district refers to the section, whereas I believe one of the.

I

um Statements or one of the the statements of um what overrides what referred to an article.

I

I believe, and then the 10.141 referred to the ordinance, so uh they may be in conflict.

I

But it just seems that if the nuance of section versus article or risk ordinance is appreciated,.

I

um I guess that's more of a comment, as opposed to a question, but if you wanted to elaborate on that.

C

Well, I can tell you one thing that immediately points uh springs to mind.

C

I wish that I had rick shulman here, because what he will tell you is this ordinance is a mess you.

C

Know it's hard to interpret it's hard to figure out. That's part of the information excuse me.

C

That's part of the explanation uh that answers your question is it's hard to follow and he has.

C

Said that on on repeated occasions, uh this uh I was arrested by mr ramstel's remark. Well here.

C

The word ordinance is capitalized, but here it isn't. Does he really think that whoever drafted.

C

That ordinance paid that much attention to the capitalization or that uh you know that much skill.

C

Went into its drafting uh it's a the ordinance is confusing. You know, I I don't know any other way to.

C

Answer your question any other way to answer your question, uh but uh that's my that's. My reaction.

C

It's uh I don't really know what you know. The drafters meant when they were referred to.

C

Incorporated other sections by reference and I'm not I'm not sure they always did either.

C

It's not any hit, the ordinance is complex. It's dense, uh you know at times in penetrable.

C

um But that's that's the way it is.

C

Can I answer any other questions? I don't think so. Thank you. Thank you.

B

D

There's two points um one. I I admit that I had forgotten that attorney mccallum sent that in a.

D

Prior letter, he didn't incorporate it or raise it in his motion for rehearing. So frankly, I'd.

D

Forgotten about it, I could see he did put it in front of you before, although not at any time.

D

When we were in front of the board, but it still doesn't change the reality and he didn't even.

D

Argue to you that you have any jurisdiction over that issue and that's really what's most important.

D

This board doesn't have any jurisdiction over it. I am going to return just to one other that that.

D

D

It's not haphazard, it's not thoughtless. In fact, that is exactly what this ordinance says. This.

D

Section of the ordinance- it's not just that the o is capitalized in one place and it's not in.

D

Another- it's not just that this ordinance is always referred to versus another ordinance.

D

It's when you put them together, the specific language is a provision of this ordinance.

D

Versus, what's required by another ordinance now, by definition, another means something.

D

Else, it's not this ordinance! That's what the word another means and I'd point out to this.

D

Board- it's also it's not just casual, because the zoning ordinance isn't the only ordinance that the.

D

City of portsmouth has, by my quick count sitting back there there's at least six other ordinances.

D

um All with sections and everything in the city of ordinance there's a traffic.

D

Ordinance, a water ordinance, something called a citation ordinance, a harbor ordinance, a forestry.

D

Ordinance, a conservation ordinance there may well be others, those are the ones we came up with just.

D

As I was sitting there listening to the argument, and so when you look at 10 for 141, it's pretty.

D

Clear this, isn't I I'm not hiding something up. My sleeve has been suggested or trying to somehow.

D

Play some kind of hocus pocus, the literal language talks about the difference between.

D

This capital ordinance referring to the zoning ordinance and another small o ordinance. That's not.

D

Casual, that's not cavalier, that's not sloppiness. That's people making a point and knowing what.

D

They're doing that's the plain language: that's the way a court will decide it and that's the.

D

Way this board should decided. Thank you. Thank you attorney. Ramsdale. Excuse me before you sit down. I.

H

Just want to correct a misstatement that I made earlier, there is no portion of the north uh and.

H

Overlay incentive district that borders directly on the north mill pond. I was really thinking about.

H

The west end incentive district, so I apologize for any confusion that may cause some days or.

D

Evenings, it's just not as tough to confuse me as I'd like it to be. So thanks for your kid.

B

All right, one last opportunity does anyone else. Have anything they'd like to add.

B

See no one rise. I close the public comment board. What do you think.

A

I think I just want to make some initial comments. uh I thought that.

A

Both attorneys did very very well. I thought the public was very informed and, and was very.

A

Articulate and we've had a few hearings on this and I would rate this the best.

A

It's a low bar, so you know I I um and I I sincerely hope- and I hope nobody takes this.

A

The wrong way we never see this again. um That said I um I will not be supporting this appeal.

A

um I do not believe that the planning board urged in applying 10.5 a.

A

um I forget which one it was, but it was 10.58610 and 620. I.

A

I just want to get to. It is clear that the zoning ordinance allows for the incentive of.

A

The overlay district to apply to the entire lot um by virtue of 10.611 and therefore, I think by.

A

Right and on counts one and two: the um the apple e was entitled to build the building that they did.

A

um You know that said I I personally don't like this project. I have to be very honest.

A

um This kind of building on the north mill pond is is really bothers. Me.

A

um uh However, I have to concede that that is what the zoning ordinance allows for.

A

um And I certainly hope that someday it will be changed. I I really do.

A

um So anyway, for those reasons uh I will not be supporting this. This appeal.

V

I would like to have some further discussion before we, oh yeah, I'm just saying what I'm.

A

Thinking, I'm not making a motion. I hate to arm wrestle with my colleagues here, but I first of.

H

All I don't think that we are making any kind of a judgment about the merits of the project. One.

H

Way or the other, this is strictly a judgment about whether or not the planning board acted in error.

H

Or in compliance with the strictures outlined in the uh or provided in the zoning ordinance.

H

At least that's my understanding of it. I think that the reason I keep on coming back to the.

H

Map uh that I brought up several times is that in section 10.5 a46, the incentive overlay districts.

H

Are designated on map 10.5, a 21b, and in examining that map, uh it is clear that the west end.

H

Incentive overlay district borders directly on the north mill pond and therefore I do not interpret.

H

The wording in 10.5 a46.21 or.22 to mean that in this particular lot, the area that is not within.

H

The incentive overlay district, but is within the 100 foot setback is governed by the rules of the.

H

Incentive overlay district, I think, that's governed instead by the rules of either the wetland setback.

H

Or the character district five, so I do not believe that the incentive overlay district.

H

Innovative land use- or you know.

H

I do not believe that the incentive overlay district ordinance actually.

H

Applies to that area of a lot, so I am not. uh I am in favor of the appellants position.

B

Mr matson, would it be appropriate to ask our attorney city attorney about his interpretation.

I

Of uh the uh the overlay district um uh taking uh dominating over, I don't think so. We've closed.

B

The public hearings- I think, we've heard all we need to hear, and that is for our determination.

A

Okay, we are the final arbiters of that this eldridge. I guess they have a kind of question.

U

um Tom just brought up character district five, but I thought that was consumed by the overlay.

U

District and no longer has its own. I thought four and five were both consumed or five and.

U

Six, whichever two were there in terms of it's a question: were they not you're in the zoning.

E

District in this particular in this particular development area were they consumed by, but the law.

U

Did the overlay district take precedence is what I'm asking over their individual or the overlay.

E

Is on top of the underlying zone, which is cd5 yeah right? But but it's not on top of the entire.

U

That, regardless of what the map shows that the whole.

U

Plot the whole lot is still under the overlay. How do you get that.

U

Could have sworn I read that sometime this afternoon I was on five hours ago. I was unable.

I

To find support for that concept, I I don't I don't see, I believe it could be if there's a definition.

H

For development, it is yeah development containing both the building, the structure and the parcel.

T

Yeah, if that's a euro 10.611 overlay district supply, special rules, management, portions of a.

H

Single zoning district, or they may overlap two or more zoning districts. So that means to me that if.

H

This lot had underlying districts, cd5 and cd4. That would be two or more zoning districts and still.

H

The overlay would prevail right, the rules for the, but that this is not part of the overlay. That's.

H

What I'm saying is that that there is no overlay to prevail over cd4 or sorry cd5 in this case.

H

Just not there, it does also say portions of a single district.

A

It's say: overlay district supply, special rules to manage land use in specific areas that may.

A

Be portions of a single zoning district: this is a single zoning district. It's cd5.

A

North end incentive applies to a portion of the lot. So, pursuant to this zoning provisions,.

T

It's the first part, so overlay districts apply special rules to manage land use. This is 10.611.

A

For everyone, following at home, um apply special rules to manage land use in specific areas that.

A

May be portions of a single zoning district, so the cd5 is the zoning district of the entire lot.

A

And the north end incentive overlay district applies to a portion of the lap of pursuant.

A

To this zoning, this provision of the zoning regulation, it applies to the entire. I I just.

H

Don't read it that way, I don't. I can't interpret it that way. So anybody on this end of the.

B

Different metal, do you have any thing you like to add not yet all right.

B

Well, while everybody's pondering, I would like to say, I think I I would be in support of the appeal.

B

uh I went back and thought about section 10.141 and the big o and the little o. I think, there's.

B

A reason that section 10.141 is at the very beginning of the zoning ordinance and the part.

B

Labeled, a purpose and applicability that section has to do with the purpose and applicability of.

B

The whole zoning ordinance, the little o comes when you're talking about another ordinance.

B

Inside further inside the met the ordinance, so I think what that's saying is: if there's another.

B

Ordinance inside here, the provisions of 10.141 is the prevailing ordinance and, and it the provision.

B

Of this ordinance, your government is pretty black and white to me now that I thought it through.

B

I also think you know 100 feet is 100 feet. You can take a tape, measure and stretch it out and.

B

You have zero feet on one end and a hundred feet on the other end and that's 100 feet. There's no.

B

There's no gray area there, hundreds of hundreds, so they're inside the hundred feet. I think I.

B

Think, for those reasons, this should go back to the planning board to give this another hearing.

B

If anybody would be bold enough to make a motion of any sort.

B

We we can talk about that I'll dive right in if nobody has any of the comments. What's that I'll.

H

Dive right in, if nobody has any other comments, well, I think maybe other people what's that.

A

I thought I saw those two of them: there's just an eyebrow tick. He didn't mean that.

B

Mr ross, at your own, no I'm not quite ready yet take a deep breath. I'd like to handle.

H

Counts, one and three together, because I think the overarching fact is that the zoning map that is.

H

Give me a second peter.

G

Lost my page because they're dealing with the same issues of the overlay district.

H

Yeah, I think the overarching fact is that, according to 10.5 a46 describing incentive.

H

Overlay districts, the districts are designated on map 10.5, a 21b.

H

In that map, it is clear that the incentive overlay, the north end incentive overlay district does not.

H

Extend into the 100 foot setback from the uh you know from the waterfront from north mill pond.

H

And therefore, the specifics of this particular project would require some additional activity.

H

That was not taken, such as a conditional use, permit or other exceptions to allow the.

H

Building coverage, as well as the exceptions to the height restrictions and character district five.

H

I don't know if that's properly worded as a motion is that a motion.

H

Right that was intended as a motion. He didn't study what okay, the board finds.

H

An error in the enforcement of the zoning ordinance in the july 15th decision of a.

H

Planning board, for the reasons I just stated, I hope I don't have to state them again.

H

Well, I should I'll save the reason very simply because the north and overlay incentive district.

H

Does not does not extend into the 100 foot setback and therefore it does not provide a provision for.

H

The increased building light building coverage to build building size, square feet and height.

B

All right, so if we could get a second that motion.

B

To talk about it, a second, mr mcdonald is seconded so.

B

Anything you'd like to add to your motion, mr rossi. The other thing you'd like to add to your motion.

H

Did it seem like I left anything out? I don't think so. Mr mcdonald, I think the motion is fine.

V

Fine as it stands, we should adopt it and move on right any discussion. This will agree to a vote.

B

All right, the motion is to uphold and grant the appeal so we'll start down at.

B

Your end, mr mantle hold on, say again: the motion is to grant the appeal no.

G

No two and anyway not two two is no longer one and three one and three one and three one and three.

B

Is that correct, mr rossi? Yes, okay, thank you.

B

All right so, mr mantle to grant the appeal grant the appeal: no okay, mr mcdonald. Yes.

B

uh It's my name is martinson, no, miss eldridge, no.

B

Mr rossi, yes, mr matson, no I'm not sure about you. Yes, so.

B

Four no's three yeses, the emotion fails, is denied.

B

Thank you very much. Thank you for your patience, nothing else to come before the board.

T

Without a direction and move to adjourn, you can't make a motion.