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HomeMy WebLinkAbout1997-06-09 Board of Health Minutes bv BOARD OF HEALTH MINUTES -SPECIAL MEETING JUNE 9, 1997 Mr. Osgood called the meeting to order at 7:15 p.m. MEMBERS PRESENT: Gayton Osgood, Chairman, Francis P. MacMillan, M.D., Member, John S. Rizza, D.M.D., Member, Kenneth Kimmell, ESQ. PROPOSED RECYCLING FACILITY ON HOLT ROAD: Mr. Osgood suggested that Attorney Kimmell update the Board Members on the proposed recycling facility. Attorney Kimmell stated that the recent memo he sent laid out a time line. Attorney Kimmell stated that the application was filed with DEP on April 18`h, at approximately May 14U' or there about, DEP issued a notice saying the application is complete, therefore, the public process could start. Attorney Kimmell stated that is started with the publication of the notice on May 19`h which created a twenty-one day (2 1) public comment period and then DEP has thirty-nine (39) days from the public comment period to issue a decision. Attorney Kimmell stated that this gives us a total of sixty (60) days from May 19`" so we should expect a decision from DEP the middle of July. Attorney Kimmell stated that the DEP's decision will be the question whether the proposal appears to meet the site suitability criteria that is set forth in the regulations. Attorney Kimmell stated that if they determine that the site is not suitable that would basically be the end of the process; if they determine that the site is suitable, that commences the Board of Health review period which consists of the fact that the Board has thirty (30) days from the date of the DEP decision to hold a hearing so sometime by the middle of August the Board should hold a public hearing. Mr. Osgood stated that the Board is going to have a separate hearing aside from that one that is an informal hearing. Attorney Kimmell stated that that is certainly something we can talk about. Mr. Osgood stated that it was already set. Attorney Kimmell stated that the Board has forty-five (45) days from the date of the first ' hearing to issue a decision which gives the Board a total of seventy (70) days. Attorney Kimmell stated that what is different about this process is that it is a trial type hearing and the Board of Health is the jury; the Board of Health has the ultimate decision. Attorney Kimmell stated that the hearing is actually presided over by a hearing officer who acts as a judge which is typically a lawyer - the evidence is put into the record the way it is done in a trial; the testimony is under oath and everyone has the opportunity to cross examine the witnesses. Attorney Kimmell stated that at the end of the process the record will be established and the Board will make a decision which has to be based pretty much on the criteria. Attorney Kimmell stated that he has talked a little bit about trying to plan some informality to this procedure such as planning some informal hearing to give some people a chance to speak without putting them under oath and cross examined. Mr. Osgood Page 2 Special Meeting June 9, 1997 stated that the reason that an informal meeting is needed is because there are a lot of people upset about this and if they do not have an opportunity to vent their frustration, they are going to more upset about this. Attorney Kimmell stated that we can set up an informal meeting be we just need to work out the details for that. Attorney Kimmell mention that at the end of the process the Board of Health has three options: 1. deny facility site assignment 2. grant it with conditions 3. grant it Attorney Kimmell stated that if you deny it the applicant has the right to appeal that denial with superior court. If you grant it with conditions or without conditions an abutter has a right to go to court. Mr. Osgood asked, "at this hearing does anyone have a right to speak of evidence at the hearing. Attorney Kimmell stated technically"no" - the applicant is of course a party to the proceeding - but if someone else such as a citizens' group or a neighborhood group forms to oppose it, they have to formerly intervene. Mr. Osgood stated that there is a provision in there for a ten (10) citizen group who have a right. Attorney Kimmell responded, "that is exactly right". Mr. Osgood stated that there is a group in town that is opposed to this and they're organized and I was wondering if they should go in as individuals or as a ten (10) person group. Attorney Kimmell stated that they should go in as a ten (10) person group. Attorney Kimmell stated that what should happen is - before the hearing starts procedural order should be issued by the Board of Health that says, "we are going to start this hearing and we are going to give x amount of time to file motions to intervene in the case, either as individuals or ten (10) citizens group. The hearing officer has the right to say, "no". Mr. Osgood asked, "not to the ten (10) citizen group or abutters, correct?" Attorney Kimmell responded, "yes" that is right - it is anyone who is substantially affected by it. Attorney Kimmell stated that the ten (10) citizen group would have the right to intervene but they would have to present evidence in accordance with the rules so if they don't have a lawyer they would have to try their best to do things the way a lawyer would do them or we can always buy an agreement not to proceed by his rules. Mr. Osgood stated that he has to agree with that and he's not likely to do that. Attorney Kimmell stated that he doesn't think that is right and he thinks that these rules benefit the applicant. Mr. Osgood stated that this is going to be tough. Attorney Kimmell stated that he probably not going to agree to have a more traditional informal hearing. Mr. Osgood agreed and stated that he was opposed to the Board of Health holding this informal hearing. But there is nothing they can do about it stated Mr. Osgood. Attorney Kimmell stated that if the Board of Health wants to hold an informal meeting they can hold an informal meeting but it will not become part of the formal record. Mr. Osgood stated that Page 3 Special Meeting June 9, 1997 residents can't just come to the informal meeting and just say you can't do this. Attorney Kimmell stated that it's a free country - if a meeting is held and people come and talk about what they think about the transfer station that's okay but the thing that the Board Members won't be able to do is base your decision on that. Mr. Osgood responded that he understands. Attorney Kimmell stated that the Board of Health is entitled to have a meeting. Attorney Kimmell asked the Board Members if they have any other questions about the process. Attorney Kimmell stated that all three Board Members have a right to ask questions to cross examine the witness and the Board could also choose to have him do it as the lawyer. Attorney Kimmell stated that as you know we will not have technical experts. Attorney Kimmell stated that he contacted a few people and he is getting responses back now and he will share them when they are done and make some decisions about that and we will have some technical consultants to help us. Mr. Osgood asked, "are we allowed to look at things that are not specifically in his application"? Attorney Kimmell responded, "sure". Attorney Kimmell stated that in other words to acquire evidence that is not in the application - in other words the record is not limited to what the applicant sent to us. At this time, the Board voted to go into executive session On a motion by Dr. MacMillan, seconded by Dr. Rizza, the Board voted unanimously to go into executive session. John S. Rizza, D.M.D., Clerk