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05-13-2010 ZBA Minutes

May 27th, 2010

Carroll Board of Adjustment
Meeting Minutes May13, 2010



“These minutes of The Town of Carroll Board of Adjustment have been recorded by its Secretary. Though believed to be accurate and correct they are subject to additions, deletions, and corrections by The Board of Adjustment at its next meeting when the Board votes its final approval of the minutes. They are being made available at this time to conform to the requirements of New Hampshire RSA 91-A:2”

Members of the Board present: Joan Karpf, Leslie Bergum, Paul Bussiere, Bill Dowling, Nancy Mitiguy

Members of the Public present: Linda Dowling (filming), Evan Karpf (filming), Frank Maturo, Brian Mohr, Roberta McGee, Ben Jellison, Leo(Chuck) Jellison, Herb McGee, David (Ike) and Jane Ikasalo

Minutes taken by Rena Vecchio, Secretary

Meeting called to order at 7:00.

Pledge of Allegiance.

Chairman Karpf declared there was a quorum and asked for the minutes of March 11, 2010 be reviewed. The secretary mentioned that Steve Messina was in and asked for the minutes to be corrected on the address and name of his property. In the minutes of March 11, 2010, page 1, second paragraph after the Pledge of Allegiance, the address was listed as “2580 Route 302 E”. It should read” 2058 Route 302 E.” Also, on the same page, same paragraph, the “Above the Notch Inn” should read “Above the Notch Motor Inn.” On the second page, paragraph 5, the motion should read “Above the Notch Motor Inn”, not “Above the Notch Inn.” Bill Dowling made a motion to: accept the minutes as corrected. Leslie Bergum seconded and the motion passed with 4 ayes and 1 abstention as Nancy Mitiguy was not at that meeting.

Chairwoman Joan Karpf told the board that they would now look at the application of an Equitable Waiver of Dimensional Requirement for Brian and Theresa Mohr, 36 Twin View Drive, Map 205, Lot 27,Twin Mountain, N.H.. The Chairwoman went on to read from the NH Planning and Land Use Regulation, 2009-2010 edition, page 482 and 483 on Equitable Waivers. This will be attached to the hard copy in the office.
Nancy Mitiguy asked when the public comes in for an application, do they receive a copy of the Zoning Regulations. The secretary told the board that they do not as the regulations are 66 pages.
The Chair asked Mr. Mohr how soon after the building was complete did Mr. Drummond bring the encroachment to his attention. Brian Mohr said it was in the fall, the building was 95% completed but with no siding on the building, basically 2 months after he had finished. Nancy Mitiguy asked at what point he was aware of the Zoning Ordinance. He said he knew about them and the plans had everything down correctly, but somewhere along the excavation things got shifted a foot somehow. He was not aware of the shift until last fall. Paul Bussiere asked who was the contractor and Brian said he did the work himself. Nancy Mitiguy asked if it was staked and he said yes in the beginning it was. He said he fully planned on being in compliance. The Chair asked how large the abutting property was and were there any trees on the property. Mr. Mohr said it was approximately .53 acres. He said he also had pictures of the property and went on to explain the issue with the pictures. Chairwoman Karpf asked if there were any issues with the height of the building. Brian Mohr said his roof line was 27 feet. He said the cupola and weathervanes were put on top of the roof lines but they were exempt from the height. Even the building inspector said so. Nancy Mitiguy said she sat on the board when the Mt. Washington Golf Club was being built and the cupola’s on that were a big issue. The height with the cupola according to notes that Stan had made is 36.5 feet.
The board asked for copies of the building permit, application and plans be available for them at the next meeting.
Bill Dowling made a motion to: accept the application. Paul Bussiere seconded and the motion passed unanimously. Chairwoman Karpf said there would be a Public Hearing on June 10th for the Equitable Waiver.

The Chair asked if there was any new or old business. Leo (Chuck) Jellison said he had some old business. Chuck said he went before the PLBD last night about the Rines excavation which he lives within 300 yards of. At that meeting he read a letter and had questions about the excavation. He read the letter to the ZBA. There will be a copy of the letter attached to the hard copy of the minutes in the office. Chuck said that at the end of November 2009 everything was to be regrated, reseeded and completed. Today there is still product being processed and removed. I don’t know if there is anything you can do or not. But this is to bring the board up on what is going on.
Joan Karpf said she would bring the board up to date. There has been a Cease and Desist order that was filed September 9, 2009. There was also an addendum that was the injunction, she believed. The injunction Mr. Rines agreed to follow, that there would be no additional excavation. Nancy Mitiguy asked what was the date of the injunction? No one could recall the actual date.
Evan Karpf introduced himself as a member of the PLBD. He said that the Cease and Desist was served and that the injunction followed. The injunction had two avenues to take:
1. To go to court – the town/PLBD/counsel presents their case, Bill Rines/counsel presents their case and the judge makes a decision where he institutes the injunction. However, the two counsels got together and an agreed that they would sign the injunction and they were in agreement of it stated and that there would be no excavation till the outcome of the trial was revealed.

Now the Cease and Desist was one aspect and that was to stop excavation right then and there. The injunction followed and according to our counsel, Laura Spector, that the signed injunction was just as valid, it had the same material credibility as if the courts made the determination. The PLBD now has these two documents.
The Chair asked if Chuck Jellison was saying that there was excavation going on now. He said yes, for the past couple of weeks. He said that there was definitely excavation and material leaving the property. Nancy Mitiguy said she feels this is an enforcement issue. She said she also feels that because this has been going on for so long it would seems to be important to meet with the attorney to go over things and to do it quickly.
Nancy Mitiguy made a motion to: delegate Joan Karpf, as chair of the board, be authorized to conduct a series of activities that will produce the information that the full board will need in considering all of the options and all options specifically in relation to Chapter 155-E and have that meeting within two weeks so that we would be able to make a decision within two weeks. Bill Dowling seconded the motion and the motion passed unanimously.
Frank Maturo asked if there were times for the excavation. The chair said she felt that would be a question for the select board. Nancy Mitiguy said she does not feel there is an existing permit or bond. The Chair said no there is not. In regards to the excavation there is not, a permit, an application or a variance. David Ikasalo said he thought there was a daily fine imposed of $ 275.00. The Chair said she thinks that a Public Hearing would have to take place and that would be the allowed number. Evan Karpf said that is part of the court case to take place in July. Fines may or may not be levied, as well as the attorney fees. Nancy Mitiguy said she is under the impression that that is a separate issue then what they are talking about. This is an enforcement issue for current activity. Leslie Bergum said she also would feel that the new activity would be under the ZBA Regulator. Joan said she would look into where the PLBD leaves off and the ZBA now steps in.
Nancy Mitiguy said that another piece of information she feels would be important to get before the meeting would be to get a sense of how much material has been removed and from where in 2010. Evan Karpf told Nancy that the PLBD had Provan & Lorber represent them and had them survey the land. Nancy asked when and Evan said it just happened. Joan said she could get copies of that for the board if they wanted. Evan Karpf said that from the initial request is excavated over 2.4 times more than what was asked for. Joan said she would put together some documentation for the board. Paul Bussiere asked the board if it would be okay to ask Bill Rines what type of permits he has. Chairman Karpf said she believes that question was asked last night at the PLBD meeting. She thought Bill Rines said he had a permit to excavate, although he has not been to the ZBA for one. She knows that the DES came in about the amount of materials being moved. The original pit was allowed 72000 square feet without an Alteration of Terrain Permit. However when DES came down they found there had been more then that taken and Bill Rines would need to apply for that permit. When he did, DES was satisfied, but it did not satisfy the need for a Special Exception or a Variance.
Nancy said that behind the Mason/Champagne property there was clearly material being removed from the height of that land. Joan said she will get that information from Provan & Lorber hopefully, as they have done a recent evaluation of the property. Evan Karpf said he wanted to bring to the boards attention that their report was done recently but prior to the current excavation. If the board wanted more information, they should ask Provan & Lorber to up dated and that the PLBD had done so at the applicants expense.
The Chair asked if there were any other questions. There being none she thanked Mr. Jellison and told the board she would keep them abreast of any news of the meeting.

Leslie Bergum made a motion to: adjourn the meeting. Bill Dowling seconded and the motion passed unanimously. The meeting ended at 8:00.