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Minutes of 6/11/2020

June 18th, 2020

JUNE 11, 2020
7:00 P.M.

Members Present: Chairman Aaron Foti, Vice Chairman Andy Smith, Janet Nelson, Sandy Pothier, Ken Mills, Selectmen’s Representative Rob Gauthier

Public Present: Edward and Dianne Morneau, James Phillips, Attorney Sandra Cabrera, Attorney Simon Brown, Building Inspector David Scalley, Fire Chief Jeremy Oleson

Minutes taken by: Sara Marvin

Pledge of Allegiance

Approval of Minutes
Chair Foti asked if there were any objections to the March 12, 2020 minutes as presented. There were no objections. Janet Nelson made a motion to approve the minutes of March 12, 2020. Ken Mills seconded the motion. The motion passed. The minutes were approved as written. Board members Ken Mills and Vice-Chair Andy Smith abstained as they were not present at the meeting.

Application for Variance-Edward and Dianne Morneau, 624 Route 115, Map 201 Lot 025-000-000. Setback variance request in order to build garage. Property is zoned Rural.

Chair Foti began with a full look of the application. Chair Foti read the application requesting a variance from Article 4, Section 403 of the zoning ordinance to permit the building of a garage seven feet from its side setback. The zoning ordinance requirement is a 30-foot side setback. Chair Foti read the facts in support of granting the variance as written by Mr. & Mrs. Morneau:
1. Granting the variance would not be contrary to the public interest because:
The abutter whose land it is next to has no issues with the garage 7 feet off his property line. No views are being obstructed, it would not be an eye sore, nor cause harm or adverse effect on the public interest. If anything, it would be good in terms of public interest, as it would increase our property value and tax base for the Town.

2. If the variance were granted, the spirit of the ordinance would be observed because:
Again, the abutter has no issue with the placement. The garage would not alter the essential character of locality. It also does not threaten public health, safety or welfare of the public. It is in a rural area and the abutter has no plans on building anything close. It would not be over-crowded or obstruct any light or air.

3. Granting the variance would do substantial justice because:
In granting the variance our property value would increase which could increase property values in the area. It would increase the tax base for the Town. It would help us clean up our property so we can keep things under cover instead of out in the open.

4. If the variance were granted, the values of the surrounding properties would not be diminished because:
Values of the surrounding properties would increase with the addition of a garage. Our property as well would increase its value. There would be no way any of the surrounding properties would diminish its values.

5. Unnecessary Hardship
A. Owing to special conditions of the property that distinguish it from other properties in the area, denial of the variance would result in unnecessary hardship because:
i. No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision of the property because:
Our property is small (less than 1 acre), we can only put the garage in an area that is most reasonable. We will not block views, light or air. It will not diminish property values around us. In fact, it will make more money for the town.
ii. The proposed use is a reasonable one because:
Without the variance, the garage would encroach onto our driveway, making it hard to drive into. This is the best place for it without moving giant boulders or moving it too far away from the house. The general public will have no impact from this, other than to increase the tax base. The abutter does not have an issue and it abuts his property.

B. Explain how, if the criteria in subparagraph (A) are not established, an unnecessary hardship will be deemed to exist if and only if, owing to special conditions of the property that distinguish if from other properties in the area, the property cannot be reasonably used in strict conformance with the ordinance and a variance is therefore necessary to enable a reasonable use of it.
We would like to be able to have easy access to the garage, especially during inclement weather. It makes no sense to have a garage over 100 feet away with groceries, luggage, babies, whatever. A garage is supposed to help with ease with regard to vehicles in different weather conditions.

Chair Foti confirmed with the Secretary that the Public Notice and abutter notices were sent on time. He then asked the applicants if they would like to present anything more. Mr. Morneau asked the Board to recognize the abutter letter indicating they had no problem with the garage being built closer than the 30-foot setback requirement and Mr. Morneau also pointed out the map that was included with the application. Chair Foti confirmed the additional documents with the application. Chair Foti asked if there was any other public comment. Mr. Morneau said the lot was grandfathered. Chair Foti said he noticed there were significant boulders in the area. Mr. Morneau said they are at the end of the driveway and there is a step-up of about seven feet which would have an impact on the rear setback.
Chair Foti asked if there were any comments or questions from the Board. Janet Nelson asked where the boulders were located. Were they in the front? Mr. Morneau said looking at the map if you go all the way up the driveway the house is on the left. Coming out of the house and to the right is the seven-foot bank. Boulders were put in creating a rock wall. Janet Nelson asked what was in the front of the property. Mr. Morneau said the leach field and septic tank.
Chair Foti asked if there were anymore questions or comments. Ken Mills asked when you breach or modify easements you have to look forward. If both properties are no longer owned by current owners but there is a building built into the abutting properties, what are rules going forward regarding deeds? What does the ZBA do in regard to these situations. Andy Smith responded the transaction would run through the land. If the variance was granted, it would become a matter of public record via the minutes of the Board. It would become part of the chain of that property and would go from owner to owner. Ken said that would mean that the person purchasing the property would have to know to go to the Town to pull up the minutes to get that information. Andy said a good title search would include researching municipal records. Chair Foti asked if there were any other questions or comments. Andy Smith said he did drive by the property and offered a picture for anyone that wanted to see it. It’s pretty terrain challenged and is a very small lot.
Chair Foti asked if there were any motions on the floor. Ken Mills moved to accept the application as provided. Chair Foti seconded the motion. The application was accepted unanimously.
Chair Foti said there was no indication there was any other information needed for the application. Chair Foti asked if there were any other questions from the Board or anything more to address before the Board moves to make a decision. Andy Smith said the application meets all five criteria. The terrain of the land is a hardship. There is a challenge with the location of the leach field and there is steep terrain in the back.
Andy Smith made a motion to grant the variance to allow the garage to be built no closer than seven feet from the side setback as applied for on the application. Ken Mills seconded the motion. Chair Foti confirmed the motion had been made and seconded. The motion passed unanimously. The variance was approved.

Preti-Flaherty Letter to Aaron Foti, Chairman ZBA Dated 06/04/2020
Chair Foti reviewed a letter from Attorney Simon Brown of Preti-Flaherty law firm. The letter suggests that a permit be issued for the Boulder Motor Court Map/Lot 418-001-000-000 located at 5 Harmony Hill Rd. campground after being granted a Special Exception to operate as a campground at the March 12, 2020 ZBA meeting. Town Zoning Ordinance 804.3 (a) states that the “Board may, in appropriate cases and subject to appropriate conditions and safeguards, as determined by the Board, authorize the Select board or designee to issue a permit for such Special Exception use.” The letter states the interpretation by Attorney Brown is that while the Special Exception application from Mr. Phillips and Ms. Burke for Boulder Motor Court to become a campground was granted by the Board, it still requires a permit be issued by the Select board or Planning Board before they may operate their property as a campground. Chair Foti would like feedback from the Board. His interpretation is that it is not a requirement but does not see an issue with it. Attorney Brown suggested that this matter be addressed after the next presentation because it does address the second part of the argument about wanting a declaration that no other requirements are needed for the campground. Attorney Cabrera agreed because they have something different to say about that than what she had said before. Attorney Cabrera said that after further research Boulder Motor Court would not be designated as a campground. Chair Foti said that if the Board was in agreement this matter would be tabled until after the Appeal from Administrative Decision Application was heard. The Board was in agreement.

Appeal from Administrative Decision Application – Map 418 Lot 001-000-000, James Phillips/Melissa Burke, Boulder Mountain View – Property is zoned Residential Business.

Attorney Sandra Cabrera of Waystack Frizzell Law Firm introduced herself. She represents James Phillips and Melissa Burke, applicants for the Appeal from Administrative Decision. They are appealing the decision of the code enforcement officer to the Zoning Board. Asking the Board to look at the code enforcement and fire inspector’s decisions and reverse it because of improper interpretation of the codes of the statutes of New Hampshire. The main issue is that the petitioners have two recreational vehicles that are recreational trailers that are longer units on their sites. They have sleeping lofts. Primary issue is that the code enforcement officers improperly said the lofts couldn’t be used to sleep in. Did the inspectors improperly interpret the building codes to be applied to park model RV’s. Did the inspectors improperly apply campground regulations to the campers. Did they otherwise violate the ordinance and statues of the Town of Carroll and the State of New Hampshire?

Attorney Cabrera stated that the trailers are recreational trailers as defined under RSA 216: I. Three elements in statute define the trailers. Portable on a single chassis, 400 square feet or less (exterior of trailer including any area enclosed by windows) and designed for temporary recreational use. Industry code (ANSI) intended for park model RV’s says that park model RV’s are designed and intended for recreational use. The argument she presented is that these trailers do not fall under the model building codes. These vehicles fall under ANSI 119.5. They are certified to meet 119.5. They are not being designated as manufactured housing. Attorney Cabrera is asking the Board to reverse the code enforcement decision, to find that model building codes do not apply to these trailers and also that these trailers do not sit on a campsite. RSA 216: I define campgrounds as two or more sites. Sites that are being rented to bring something on to.

Andy Smith asked if it is the position of the applicant that the property does not fit the definition of campground. Attorney Cabrera affirmed that it is the position of the applicant that upon closer look the property does not fit the definition of campground. She said the application was submitted at the direction of Attorney Carey. There is no placement of anything at the property. They are already there. Attorney Cabrera said this doesn’t affect the other main issues. The designation of campgrounds doesn’t affect what building codes are applied to recreational trailers. The key issue for the Board is whether the code enforcement officers of the Town of Carroll improperly applied model building codes to two cabins.

James Phillips made a presentation supporting his representation that the units at his property are park model RV’s and that they are regulated by ANSI industry standards, that they do not fall under model building codes.

Attorney Cabrera stated that Planning and Zoning approval was for 9 park model RV’s. The words used were park model RV’s when the decisions were made. From the start, they were recognized as park model RV’s.

Dave Scalley said that when the building permit was pulled it was to demolish 5 cabins and replace with 5 new cabins. The units are on concrete pads. That is what triggered him to go out and inspect as the building inspector. The units are strapped down, they are on concrete pads, they are hard wired, they are hard plumbed. He asked what are these that are being inspected? Are they cabins? If they are, they fall under the IBC codes. Cabins are on the permit application. That is what he is inspecting. If ANSI is being followed, it does not specify that the loft is a sleeping area. If they’re cabins, they fall under IBC which requires two means of egress.

Attorney Cabrera said that another part of the appeal is that there is a statute that requires code enforcement decisions site what regulations decisions are based on. She stated no regulations have been sited.

Chair Foti said for the record the building permit pulled calls for the demolition of 5 existing cabins and replacing with 5 new cabins and page 2 the existing use is cabins and proposed use is the same. They are currently regulated in a way which is different than the way in which the applicant is looking to regulate them. In the view of Chair Foti the building inspector responds to the building permit not the Planning or Zoning decisions. The Board is appealing a decision made.

Dave Scalley said that the stop work order letter was sent because an inspection was not requested prior to the Certificate of Occupancy being issued per Zoning Ordinance 802.6 and 802.7.

Chair Foti said he was not comfortable with his current understanding of information necessary to adjudicate this issue. Chair Foti made a motion to continue to the next meeting. Sandy Pothier seconded the motion.

Andy Smith asked if the Board would be willing to meet sooner than the next monthly meeting.
The motion was amended to continue to the next meeting of the Zoning Board.

Ken Mills asked for discussion. Should the meeting continue? Is there more information necessary in order to act on the appeal? He is prepared to make a decision. Sandy said she would like to see the codes are being drawn from. Chair Foti said he is not necessarily looking for more information but more time to process the information as it is not instantaneous. He wants to be sure all factors are considered when making his decision.

Andy Smith said he would support the motion if the meeting could continue next week. All parties involved have worked hard to come to a resolution that is to everyone’s benefit. The process has been overwhelming.

Ken Mills said he would not be able to attend the meeting.

Discussion ended. Chair Foti moved to take a roll call vote on the motion on the floor. Motion is to continue application to the next meeting. Aaron-yes, Janet-no, Sandy-yes, Ken-no, Andy-no. The motion did not carry.

Chair Foti asked if there were any other motions on the floor.

The request from the petitioners read:
A. Find that the building and fire code inspector improperly applied model building codes to Recreational Vehicles, RSA 674:34;
Andy Smith made a motion that upon modification of the two larger units to bring them under 400 square feet of living space, they will be recognized as Recreational Vehicles under RSA 216: I and will be subject to inspection for compliance for such criteria. Ken Mills seconded the motion. Chair Foti called for a roll call vote. Andy Smith – yes, Ken Mills – yes, Sandy Pothier – yes, Janet Nelson – yes, Chair Aaron Foti – yes. Motion carries.

B. Find that the lofts in the two long units (see Ex.7) can be used for sleeping, as such sleeping lofts are permitted and considered safe under ANSI A110.5;
Ken Mills made a motion that the Board finds that the lofts in the two long RV units (see Ex.7) can be used for sleeping if the loft area is compliant with ANSI 119.5 standards and to be inspected for such compliance with assistance from the Town of Carroll Fire Chief. Andy Smith seconded the motion. Chair Foti called for a roll call vote. Andy Smith – yes, Ken Mills – yes, Sandy Pothier – yes, Janet Nelson- yes, Chair Aaron Foti – yes. Motion carries.

C. Find that contrary to the inspectors’ email of April 3, 2020, given the history of this case, no further “Town requirements applicable to campgrounds” will be imposed, as such a requirement is inconsistent with the true intent of the code, RSA 674:34, the content of the inspectors’ notice did not comply with RSA 155A:7(V), and it is otherwise inconsistent with the law of New Hampshire as cited above;
Attorney Cabrera withdrew item C.

C (b) in the alternative, the petitioners request that the Zoning Board issue a variance for any such additional
Town requirements that the inspector’s may be referring to in this April 3, 2020 email;
Attorney Cabrera withdrew item C(b).

D. Grant such other and further relief as may be just and equitable.
Attorney Cabrera presented that this item is legal language and does not mean anything.

Chair Foti requested the applicant designate what use they would prefer to fall under at least to record in the minutes. Attorney Cabrera offered that as far as she knew if you are not a campground you are lodging and lodging is permitted in that area. Chair Foti asked that the designated use be named by the applicant. The applicant stated that he is intending to operate under the existing use which is lodging. Chair Foti stated for the minutes that the applicant is intending to operate the parcel under the lodging requirements and not a campground. Andy Smith said that the Board is also requesting a letter from the applicant stating that they are withdrawing their use under the Special Exception to operate as a campground and that they will continue to use the property as a lodging property as allowed by zoning ordinances.

Chair Foti asked if there needed to be any more discussion in regard to the letter sent from Preti-Flaherty suggesting that Ms. Burke and Dr. Phillips apply for a permit to operate a campground. They are no longer designated as a campground. Chair Foti asked Attorney Brown what his thoughts were. Attorney Brown said he thought the subject was moot. The letter was from counsel. Counsel says it’s moot so no further discussion is necessary.

Election of Zoning Board of Adjustment Chairperson and Vice-Chairperson
Ken Mills nominated Aaron Foti to be Chairman. Sandy Pothier seconded the nomination. The motion was made to approve Aaron as Chairman. The motion was approved. Aaron Foti abstaining. Chair Foti nominated Andy Smith as Vice Chairman. Ken Mills seconded the nomination. Chair Foti made the motion to elect Vice Chairman. Janet Nelson seconded the motion. The motion was approved unanimously.

Review – Rules of Procedure
Rules of Procedure will be continued to the next meeting, July 9th, 2020.

Chair Foti asked if there was any other business to be conducted. There was not. Vice-Chair Smith made a motion to adjourn. Chair Foti seconded the motion. The meeting adjourned at 11:30 p.m.