Zoning Board of Adjustment

Minutes

December 20, 2011

Official as of January 23, 2012

Chairman Bruce Farr calls the meeting to order at 7:10 p.m.

PRESENT: Chairman Bruce Farr, Tom Lavigne, Nona Holmes, Alternate Doug Pollock, Alternate Curtis Naleid, Alternate Jean Lane, Board Administrator Linda Smith, Board Secretary Lisa Fellows-Weaver, and Code Enforcement Officer/Building Inspector David Hickey.

Also present is ZBA counsel Jed Callen.

ABSENT: Vice-Chairman Roy Pender and Robert Bailey.

VOTING MEMBERS: Bruce Farr, Tom Lavigne, Nona Holmes, Alternate Doug Pollock and Alternate Curtis Naleid.

MINUTES
Mr. Lavigne makes a motion, second by Mr. Pollock, to postpone the minutes to the next meeting, January 23, 2012. Motion passes unanimously; 5/0.

APPLICATIONS
Case #11-04R: Motion for Rehearing submitted by Scott E. Hogan, Esq. for Bob and Janet Clark: ZBA Decision of October 3, 2011: Approval of Variance application of Larry Cleasby, Old Pittsfield Rd. Map 205; Lot 1. 

Larry Cleasby is present along with Ginger Dole.

Mr. Farr explains the process of granting a variance.

Mr. Cleasby states that he is requesting to build a single family home on Old Pittsfield Road; lot 1. He explains that he is being told that the town does not recognize road frontage on a Class VI road and he does not meet the frontage requirements.

Mr. Hickey states that the ordinance states that there needs to be frontage on either a Class V road or a state road; all other roads, private roads or Class VI roads, are considered to have no frontage and a variance is required. Mr. Farr asks if there is frontage on a Class VI road, what does the ordinance state regarding improvements and buildings. Mr. Hickey replies that the road would need to be improved to current road standards in order to build on it. He states that if the owner does not want to upgrade the road then a variance is required due to the lack of frontage on a Class V road or state highway.  

Mr. Cleasby states that the proposed house required state approval for energy codes and once that was received from the state Mr. Hickey gave verbal approval for a building permit over the phone.

Mr. Farr asks why the road is not being improved. Mr. Cleasby states that the road is just being used as his driveway. He states that he is asking for a driveway permit as well as a building permit on a Class VI road. Mr. Farr states that the ordinances state that the road must be a Class V road with 150’ of frontage or the road must be improved if it is a Class VI road. Mr. Hickey states that there are only two options; the road is improved or request relief from improving the road, Section IV(B)(1)(b)(3).

Ginger Dole states that she is a friend of the applicant and will be assisting with the presentation to the board. She states that the ordinance indicates that a Class VI road proposed to be improved to current town standards or must comply with RSA: 674:41. She reads the three conditions noted in section C of the statute and states that these conditions have already been met and it is a matter of public record as they were referenced in materials previously provided by Marion Knox for a prior meeting regarding this case. 

Mr. Naleid reads the ordinance referenced and notes that the conditions noted are not “either this or that” but are in fact that all 3 conditions must be met. Ms. Dole states that is one interpretation. She adds that this process (RSA: 674:41) has been gone through several years ago. She states that at the February 8, 1999 selectmen’s meeting the board at that time motioned to allow the construction of residences on the Class VI section of the road and to authorize the CEO/BI to issue building permits on the Class VI portion of Old Pittsfield Road. She continued that the owner must show that notice of the limits of the municipal responsibility and liability have been recorded at the registry of deeds. She states that two additional motions were also made that evening relative to the re-issuance of the building permit of the applicant’s first home and culvert replacements. She notes that this information is a part of excerpts from the documents provided by Marion Knox. Ms. Dole reads the motions as noted in the February 8, 1999. She states that the requirements of these motions have been met and that should cover anyone on this road. 

Ms. Smith states that the selectmen cannot bind something into the future that supercedes state law. 

Atty. Callen explains the procedure is that the applicant has the burden of making their case. He states that this case starts fresh as if nothing has been presented to the board. He states that there was an application and a re-hearing was requested, which was granted. He states that the original application can be resubmitted or it can be amended.
Mr. Cleasby states that he did provide an application and was told that he could provide the criteria verbally at the meeting. Atty. Callen reviews the original application and states that the original application was provided August 29, 2011. He asks the applicant to specify the ordinance that he is requesting the relief from.

Mr. Cleasby states that the application was filled out with Mr. Hickey. Ms. Dole states that there is some confusion as to what the variance request should be.

Mr. Hickey explains that the responsibility is the applicant’s; however, generally an applicant will come into the town offices and staff will assist to try to determine what is necessary; what must be applied for to meet the ordinances, or request variances from ordinances. The board reviews the building permit and letter of denial that is generated by the building inspector. Mr. Naleid asks if the applicant has a copy of the document. Mr. Hickey states that generally the letter of denial does not go to the applicant; it is an internal document that remains with the town files and to the ZBA.

Mr. Cleasby states that he is now learning that the town does not recognize road frontage on Class VI roads. Mr. Naleid states that it is now up to the applicant to provide a clear packet of information to present to the board. Mr. Cleasby states that he went through the steps after he sought guidance from the town building inspectors. He states that he was not aware of what was needed and it was not clear as to what he needed to do. He understands the process now.  

Mr. Farr states that the applicant was denied a building permit based on the fact that there were two ordinances that could not be met; Article IV(B)(1)(b)(3) and Article IV(B)(1)(c)(1). Atty. Callen states that he believes that the applicant is seeking a variance from upgrading the Class VI road. He states that it is not accurate to state that a Class VI road does not matter; it actually does as it is one of the three types of frontages defined. He explains that the requirement is that there must be 150’ on any one of the roads, a Class V or better, a private road that was listed on the town’s road map of 1981, or a Class VI road that is being proposed to be improved to town standards and must have approval from RSA 674:41. Atty. Callen states that it seems that Mr. Cleasby is requesting to be exempted from the requirement to upgrade the road. Mr. Cleasby replies yes and explains that he does not intend to upgrade the road. He would like the road to remain as a Class VI road.

Atty. Callen states that the board will not be retrieving or referring to prior information that has been provided. He explains that if it is now clear that this is the provision that relief is sought, a packet of what the applicant feels is necessary needs to be provided to make the case. Atty. Callen states that the applicant should submit this packet of information to the board before the hearing so that the information can be reviewed by the board. In addition, Atty. Callen explains the notification and public process for a case. He suggests that the applicant request a continuance for time to put together a complete application and submit it to the board. 

Mr. Naleid states that if there is other information regarding the status of Old Pittsfield Road meeting RSA 674:41; it may not be a variance that should be requested. Atty. Callen states that there is no application before the board for RSA 674:41 and this item would need to follow the public process as well. 

Mr. Farr explains the need for the information showing the applicant’s burden of proof and adds that the board does not have this information at this time.
Ms. Dole asks how an individual determines why they have to go through this process if there is not direction given to them. Atty. Callen explains that the law is clear that boards and town officials have an obligation to try to help citizens understand the zoning ordinances. He states that these officials cannot be an advocate or an attorney. He explains that an applicant can come in and meet with the town officials and ask for clear explanations. He notes that the letter from Mr. Hickey was clear to the board. Atty. Callen states that the applicant could meet with the chairman of the board, appropriate staff members, or hire an attorney. He states that it is clear that the obligation is that of the applicant’s as to what is needed by getting input, putting together a packet of information, and submitting the packet to the town in time to meet requirements for noticing and to allow ample time for the board to review. Atty. Callen states that he would recommend that the applicant not press for any decision tonight as he does not feel that the applicant can meet the burden, nor has the information and section been identified. He states that this would also be fair to abutters and public as well, as those parties affected would be clear as to what the request for relief is.

Ms. Dole states that she and Mr. Cleasby were under the supposition that all of the necessary information was provided and tonight was for a rehearing based on the materials already provided. She states that neither of them considered the necessity to reformulate a new packet of information. She adds that it did not occur that in affect that the motion was granted to rehear, to start again from the beginning; however, they presumed that the information already presented would be the same information to be utilized and carried forward. She states that one concern that a board member expressed was that the five criteria had not been provided in writing prior to the meeting; however, were given verbally at the meeting. She states that these responses have now been put in writing and she was prepared to provide these at this meeting tonight.
Ms. Dole asks if a new application should be made or should the existing application for a variance be used with all supporting documentation. Atty. Callen states that the decision is that of the applicants. He suggests that since the application provided does not clearly state the article and section correctly and nothing has been provided relative to the criteria, redoing the application would be easier rather than a supplemental packet. He adds that another option would be to provide a letter noting the written criteria are included and a reference to consider the prior application.

Ms. Smith states that the board’s approved checklist states that an applicant’s testimony must be presented on the request and can be made orally at the time of a hearing or provided in writing. She states that the history of the board does allow the applicant to present the criteria orally. 

Mr. Naleid states that the three options for the applicant are to continue the case tonight, request to continue the case to allow time to present a complete packet of information, or withdraw the application and reapply for another time and re-notify abutters. 

Mr. Cleasby requests that the board continue the case to January 23, 2012, at 7p.m. 

Mr. Farr asks for any comments from any abutters or affected parties.

Atty. Scott Hogan is present representing Bob and Janet Clark who are also present. Atty. Hogan states that he will refrain from comments relative to substance until the January meeting. He refers to the original notice of decision which states the two zoning provisions correctly, regarding Article IV(B)(1)(b)(3), the Class VI road improvements and Article IV(B)(1)(c)(1) notes the dimensions table requirement which is the 150’ of frontage requirement.  Atty. Hogan states that these are variance requests from the town’s zoning ordinance requirements not a variance request from RSA 674:41.  

Atty. Hogan states that in terms of the procedure, if an application is filed and there is an abutter or someone that wants to review the file they can at that time see what the applicant is arguing. He states that the applicant has the burden to submit evidence on each of the five requirements. He states that he would then be able to present an argument based on that application. He explains that what he had to do with this case was guess at what the applicant might be saying. He states that to participate effectively, it is impossible to do  based on not having information available. He supports the continuance.

Abutter Dan Brennan states that he has recently traveled the road and the condition is not good. He expresses concern with the access for emergency vehicles and personnel. He adds that he feels that the condition of the road will deteriorate should another house be approved to be built with access on the road.

Mr. Lavigne makes a motion, second by Mr. Pollock, to request the board send a letter to the selectmen asking for a response to attending the next meeting or a response in writing regarding the progress or lack thereof over the course of the past 10 years of the condition of Old Pittsfield Road; has the quality of the road improved or diminished. Motion passes unanimously; 5/0.

Mr. Naleid makes a motion, second by Mr. Lavigne, to continue this case to January 23, 2012, 7 p.m. Motion passes unanimously; 5/0.

INTERNAL BUSINESS
Ms. Smith provides information to the board regarding alternate members and voting. Other information is provided regarding legal fees and the board’s recourse, if any. No action is taken and the items will be added to the next meeting agenda. 

Mr. Lavigne makes a motion, second by Mr. Farr, to adjourn. Motion passes unanimously; 5/0.

Respectfully submitted,
Lisa Fellows-Weaver
Board Secretary