Mr. Green made a motion to accept the minutes of the January 9, 2002, Conservation Committee meeting. Mr. Cormier seconded the motion, and all voted in favor.

Ken Healy, of Millette, Sprague, & Colwell, spoke on behalf of the owners. Mr. Healy gave the Commission some background of the project. Peter Britz, the City's Environmental Planner, viewed the site with him on January 30, 2002, to determine whether or not there was a buffer zone. It was determined that it was less than one-half acre in size. Chairman Sturgis clarified that Mr. Healy was referring to the fresh water wetland, and this application was concerned with the Wetlands Bureau and the intrusion to the tidal buffer zone. Mr. Healy stated that the owners are proposing construction within the tidal buffer zone. Of the 439-sq. ft., the enclosed living space constructed over the existing footprint would be 302-sq. ft. The proposed addition will be an 8' x 14' porch. The total amount of construction in the tidal buffer zone is currently 317-sq.ft, located on previously disturbed uplands. Mr. Healy stated he is proposing to demolish the existing deck and replace it with a new structure over the existing footprint. The applicants have been in contact with their neighbors regarding the project, and have made changes to the plans according to their neighbors' concerns.

Ms. Tanner asked Mr. Healy if the footprint would be enlarged at all. Mr. Healy stated it would be bigger by 112-sq. ft. with a total of 415-sq. ft. of new construction over an existing 284-sq. ft. deck (124-sq. ft. of additional new living space). Mr. Healy said the 8' x 14' porch would be an open four-season room with sonotubes for support.

Mr. Cormier inquired if the living space would be enclosed and was told it would be on columns. Mr. Healy felt this was the least obtrusive option to build where there was an existing footprint.

Chairman Sturgis made the comment that building a living space in this climate with no foundation under it was difficult to understand. Mr. Healy said the previously approved garage was built without any basement.

Mr. Cormier asked if the owner thought a basement would not have been approved. Mr. Healy replied the architect felt that sonotubes was all that was needed for support.

Mr. Cormier made a motion to recommend approval of the Wetlands Permit to the NH Wetlands Bureau. Mr. McNeil seconded the motion.

Chairman Sturgis stated he would not be supporting this application as construction of the 8' x 14' attached additional screened porch would be an intrusion into the tidal buffer zone. He also stated he had a feeling that after the owners had gone through one winter, they would come back for another application for a foundation, but was not making his decision on what could happen in the future.

Mr. Cormier stated the reason he seconded the motion was he understood the construction would be on the same footprint. Chairman Sturgis clarified to the Commission the porch addition is an 8' x 14' extension of the footprint.

A roll call vote was taken with the following members voting: Mr. Miller-no; Ms. Tanner-no; Mr. Green-no; Chairman Sturgis-no; Mr. Cormier-yes; Mr. Walters-yes; Mr. McNeil-yes. The motion was denied 3 - 4.

Mr. Healy asked the Commission if the applicants need any construction done in the tidal buffer zone, do they need to come before the Commission? Chairman Sturgis responded if the applicants only want to enclose the deck area and not expand, they would not have to come before the Wetlands Bureau. Mr. Healy asked if the Commission had any recommendations, and Chairman Sturgis suggested for the applicants to stay within the existing footprint and not expand.

Mr. Green asked if the Commission could make a motion to recommend to the Wetlands Bureau that they stay within the footprint. Chairman Sturgis will write a memorandum to the Board of Adjustment stating the Commission did not recommend approval of this application, but if the applicants submitted a plan indicating no expansion into the tidal buffer zone, it would very likely get favorable consideration.

B) Prior to the meeting Chairman Sturgis sought out the legal advice of Bob Sullivan, City Attorney. In order to discuss legal matters, Chairman Sturgis closed the meeting to the Public. Chairman Sturgis explained to the Commission that although it seems there is now a vacancy on the Commission, according to the ordinance, it is the position for City Arborist. The ordinance reads, in part, "the holder of this City Arborist office shall be appointed by the City Manager. The Arborist shall become a member of the Conservation Commission. " He further explained that the Commission is limited by statute to seven regular members. Therefore, the only vacancy is for the City Arborist. Chairman Sturgis would like the ordinance changed to eliminate "shall become a member of the Conservation Commission." Attorney Sullivan explained the problem with "ex-officio" was that person would still be a member of the Commission by reason of the office that they hold.

Ms. Tanner asked if the wording in the ordinance could be changed to "may" instead of "shall." Attorney Sullivan said this could be a solution. Chairman Sturgis had previously explained to Attorney Sullivan that the best role for the City Arborist would be as an advisory resource to the Commission. Attorney Sullivan suggested he could draft a memo to the Mayor and City Council requesting the authority to have the ordinance changed. Also, he stated the City Manager appoints the Arborist and the Mayor appoints members of the Commission.

Chairman Sturgis would like the ordinance (Section 8:31) changed to read "The Arborist shall be available for consultation with the Conservation Commission." Chairman Sturgis read to the Commission the portion of the ordinance describing the arborist's duties: "The Arborist shall have the authority and it shall be their duty to plant, trim, spray, preserve, and remove trees, other plants and grassy areas." Chairman Sturgis felt that the duties of the Arborist should not be concerned with the grassy areas, but the City Arborist is the tree warden. Mr. Walters thought a motion should be made to the effect that the present configuration of the Arborist being part of the Commission be changed. Attorney Sullivan stated one ordinance says the City Manager appoints the City Arborist who shall be a member of the Commission and another ordinance says the Commission will have seven members and two alternates, all of whom shall be appointed by the Mayor. This appears to be a contradiction of the ordinances. Mr. McNeil made a motion for the Chairman to pursue a change in the ordinance as presented at the meeting. Ms. Tanner seconded the motion. All voted in favor.

Ms. Tanner stated the city has no provision for tree planting unless the Public Works Director puts it into his budget. Chairman Sturgis replied there is something for tree planting in the Capital Improvement Plan. Ms. Tanner said there is a law on the books a fine for $1000 to punish offenders for hurting trees.

Attorney Sullivan explained that when someone is caught damaging a tree and brought to District Court, that person is ordered to repay money to the City.