Hearing Set/Charges Clarified in Mboro

MOULTONBOROUGH — A public hearing to determine whether two members of the Planning Board — Josh Bartklett and Judy Ryerson — should be removed from office will be held before the Board of Selectmen on Monday, Sept. 9, beginning at 1 p.m.

After Bartlett and Ryerson declined an offer from the selectboard to resign, the hearing was scheduled under the statute authorizing the selectmen to remove both appointed and elected members of land use boards — the Planning Board and Zoning Board of Adjustment (ZBA) — for "inefficiency, neglect of duty or malfeasance in office."

The format of the hearing provides 30 minutes for the selectboard to present the charges, 30 minutes for the accused to respond and time for the selectmen to deliberate. The case against Bartlett is scheduled to be presented at 1 p.m. and against Ryerson at 3:30 p.m. Town Counsel Peter Minkow will serve as an adviser to the selectboard.

The selectboard outlined issues to be considered, with the caveat that the proceedings would not necessarily be confined to them, in certified letters to Bartlett and Ryerson dated Aug. 8 and released to the public yesterday. Charges against both stem from their actions on July 10, when the Planning Board approved construction of an observation tower on Red Hill by Bob and Cathy Williams, doing business as Bear's Nest Trail, LLC. However, the selectboard also alleges that Bartlett behaved improperly at an earlier hearing before the Planning Board while Ryerson neglected her duty by failing to attend eight of the last 12 board meetings.

The Williamses built the 900-square foot lookout tower, with an average height of 27 feet, around 1,200 feet up the east flank of Red Hill without obtaining the necessary permits from the ZBA, Planning Board and Building Inspector. After failing to seek permission they sought forgiveness, by asking the ZBA and Planning Board to approve the project after the fact.

The ZBA granted a variance and referred the case to the Planning Board for a conditional use permit (CUP). The board was directed to apply "the de novo standard," that is to approach the issue as if the tower had not been built. To grant the CUP, the board was required to find that the project met 11 criteria.

The minutes record that Peter Jensen, the acting chairman, "polled" the seven members of the board on the 11 criteria. Two of the 11 failed when the board split evenly — three-to-three — with Bartlett abstaining and Ryerson voting no. However, neither believed it was the best interest of the town to require the structure be dismantled. Ryerson changed her "no" to "yes," breaking the stalemate in the "poll," and Bartlett offered a motion to grant the CUP, which carried five-to-two.

Bartlett, the selectmen allege, failed to act by twice abstaining when the board was polled on the 11 criteria. The charge reads that "in failing to recuse yourself, which is to be done for a statutory conflict of interest or bias, and allowing an alternate to be seated to act in your stead you deprived the community of the full and faithful performance of your duties." Moreover, he also stands accused of failing to apply the de novo standard as well as questioning the decision of the ZBA and making "disparaging remarks" about code enforcement process.

Furthermore, the selectmen claim that throughout the hearing on Bear's Nest Trail, LLC's request and an earlier hearing on the application of Rock Pile Real Estate, LLC to operate a bakery on Governor Wentworth Highway Bartlett gave "cause to applicants to fear they will not receive a fair and reasonable review of their requests."

Bartlett, the selectboard conclude, failed to meet his fiduciary responsibilities "by depriving applicants of a full and reasonable hearing," "exhibiting bias," and disparaging the zoning ordinance and those who administer it. Consequently, the selectmen claim "you have created substantial legal risk to the community."

Meanwhile, Ryerson is charged with having changed her vote on the Williamses' application, "without foundation," despite having concluded that they failed to demonstrate there was no "practicable alternative" to the project as completed. The selectboard notes that but for Ryerson changing her vote, the Planning Board could not have granted the CUP. The selectmen allege that, like Bartlett, Ryerson failed to meet her fiduciary responsibilities, since her action "created substantial legal risk tot eh community."

Bartlett said yesterday that he has referred the matter to his attorney. Ryerson said that she has not retained an attorney, but has sought informal legal advice.

Tomorrow night the Planning Board will hold a special meeting at the request of Bartlett and Ryerson and a third member, Paul Punturieri, to discuss "the recent events that have led to the requested resignation of two members"