Selectboard Meeting Minutes

Minutes of 6/13/2023

June 16th, 2023

Carroll Board of Selectmen
Meeting Minutes
June 13, 2023

“These minutes of the Town of Carroll Select Board have been recorded by its Secretary. Though believed to be accurate and correct they are subject to additions, deletions and corrections by the Select Board 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.”

Minutes recorded by Heather Brown, Secretary
Board Members: Jules Marquis, John Greer, Ken Mills

Members of the Public: David Scalley, Chris Pappas, Imre Szauter, Rena Vecchio, Evan Karpf, Brian Mycko, Tadd Bailey, Michele Penner, Tammy Dubreuil, Mike Hogan, Jeff Duncan, Nathan Parks, Paul Hayes, Alex Foti, Ian MacMillan.

The meeting was called to order at 4:59 p.m. by Chairperson Marquis.

Pledge of Allegiance.

Chairperson Marquis wanted to thank the responders for their efforts this weekend with the fire, car accident and Mt. Washington medical emergency in town.

APPROVAL OF 6/6/2023 SELECT BOARD MEETING MINUTES – Selectperson Mills motioned to approve the 6/6/2023 Select Board meeting minutes as written; Selectperson Greer seconded. Discussion – none. All in Favor: Mills-AYE, Greer-AYE, Marquis-AYE.

APPROVAL & SIGNING OF MANIFESTS – The Board all confirmed they signed.

SIGN PERMIT (206-018-000-000; TOWN OF CARROLL) – The Board reviewed the sign permit. Selectperson Mills motioned to approve and sign the sign permit for the Town of Carroll; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

CERTIFICATE OF OCCUPANCY (O’LEARY; 207-020-032-024) – The Board reviewed the certificate of Occupancy. Selectperson Mills motioned to approve and sign the certificate of occupancy for O’Leary; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

SUPPLEMENTAL WATER WARRANT (GREEN, HOWE) – The Board reviewed the supplemental water warrant, totaling $200.00. Selectperson Mills motioned to approve and sign the supplemental water warrant for Green and Howe; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

LIQUOR LICENSE EXTENSION - OMNI / MT. WASHINGTON RESORT “FABYANS RESTAURANT DECK” – The Board reviewed the liquor license extension. Selectperson Mills motioned to approve and sign the liquor license extension for Omni Mt. Washington Resort, Fabyans Restaurant deck to include the lawn space to the right; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

LIQUOR LICENSE EXTENSION - OMNI / MT. WASHINGTON RESORT “LAWN SPACE DIRECTLY BEHIND THE BRETTON WOODS SKI AREA” – The Board reviewed the liquor license extension. Selectperson Mills motioned to approve and sign the liquor license extension for Omni Mt. Washington Resort, to include the lawn space directly behind the Bretton Woods Ski Area; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

FOOD TRUCKS AT RECREATION EVENT 6/24/2023 – The Board reviewed the Rek-Lis Food Truck Permit. Selectperson Mills motioned to approve and sign the food truck permit for Rek-Lis; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

Discussion regarding the sno-cone vendor and the need for a food truck permit, noting some of the items can be listed as “N/A” if it does not apply. The Board requested that that Food Truck permit be filled out by the vendor to avoid confusion, as suggested by the Fire Chief.

Discussion regarding waiving the Food Truck permit fees for the recreation event on June 24th. Selectperson Mills motioned to waive the food truck permit fees for Rek-Lis and the sno-cone vendor; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

Mike Hogan voiced his concern for waiving the fee.

BLASTING ON HARMONY HILL (June 15/June 16) – The Secretary explained that a contractor on Harmony Hill called to let the Town know that they would be blasting on June 15th and/or June 16th.

1800 ROUTE 302 BUILDING PERMIT FEE CLARIFICATION – Selectperson Greer explained that he agreed mostly with what Alex Foti stated in his letter, highlighting a recent Supreme Court ruling, which makes residential units not a commercial property if rented. Selectperson Greer feels that the property has to be assessed as residential. Discussion regarding the definition of a residential property and what delineates residential from commercial. David Scalley, Building Inspector explained that the there are four houses on one lot, noting one house is the main residence and the other three are rented out (AirBNB, weddings, etc.) as his reasoning. Discussion regarding the property. Fire Chief Duncan explained that there are four single dwellings on one property which would make it commercial, noting if the lot was subdivided and each dwelling was on an individual lot it would b e residential. Discussion regarding the Zoning Ordinances and revisiting them. The Board all agreed to table this item until more research can be done


CEMERERY HISTORICAL PHAMPLET – The Secretary explained that the Cemetery Committee made a historical pamphlet to document and preserve the inscriptions for history.

POLICE SPEED LIMIT TRAILER VANDALIZED AND BROKEN – The secretary explained that the Police Chief approached her about filing a claim on the vandalized speed limit trailer. Chief Bailey explained that the cost of the trailer in total is approximately $7,000.00, however the radar unit and display portion of the trailer is approximately $3,000.00 to repair, which currently is non-functional. The Secretary confirmed that the deductible to file the claim is $1,000 and asked the Board what they would like to do. Discussion regarding deterring vandalism. Selectperson Mills motioned to submit the claim and pay the deductible to have the speed limit trailer repaired; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

MICHELE PENNER, AIRPORT OVERLAY CLARIFICATION – Michele Penner explained to the Board that she is looking for clarification in the Zoning Ordinance concerning Airport Overlay, noting she is trying to sell a lot on Tuttlebrook Road, which has no deeded restrictions, however she understands that the Zoning Ordinances would trump the property’s deed. Discussion regarding airport overlay, highlighting that it is federal law as well as intended for the safety of residents, pilots, etc. Discussion including the--owner of the airport—ensued involving the zoning ordinances 602.1 & 602.2 and what it means for an overlay reflecting on prior cell tower applications that had been reviewed by the planning board as well as FARs. Reference was made to review those planning board minutes for additional interpretation. Penner explained that the buyer is trying to understand what the limitations there are on the land, noting the ordinance says its not meant to limit anything below 30-feet, and suggested that a house could be built at long as it does not protrude above the overlay. David Scalley explained that as long as it meets the ordinance and its below the requirement, further suggesting that it would be beneficial to get the elevation of the runway and the property, to find the highest point to ensure it is in compliance.

FOLLOW UP

SCALLEY RT3 104 LLC CEASE-AND-DESIST & CERTIFICATE OF OCCUPANCY – Selectperson Mills expressed thanks to for those individuals who raised the question regarding the use of property located at 104 Route 3 North, owned by Scalley Rt 3 104, LLC.
Selectperson Mills read the Cease-and-Desist that was issued to Scalley Rt 3 104, LLC into the record. A copy of the cease-and-desist is attached.
Selectperson Mills summarized that the Select Board determined that a Certificate of Occupancy was required, and that the owner was in violation of Section 802.6 of the Zoning Ordinance that requires such. As a result, the cease-and-desist order was issued.
Selectperson Mills also noted that Scalley Route 3 104, LLC has submitted a certificate of occupancy to the Select Board with the Fire Chief’s signature and pointed out that there was no indication of life safety issues or construction, alteration, remodeling, or changes occurring to the site.
Selectperson Mills motioned that the Select Board accept and sign the submitted certificate of occupancy as submitted; Selectperson Greer seconded. Discussion – Selectperson Mills noted code enforcement classes and the Board doing their due diligence, further explaining that this is an initial step in the resolution of the cease-and-desist order. The issue of the building permit will be considered later in this meeting.
Selectperson Greer voiced his thoughts, noting that they are his and not necessarily the thoughts of the other Board members. Selectperson Greer explained that the Select Board has demonstrated they will act when the laws are clear as we did by issuing a Cease & Desist for not having a certificate of occupancy. Selectperson Greer cited his reasoning as to why this has taken so much time; due to the many complicated, convoluted, and conflicting issues: A building inspector who has a conflict of interest; Fuzzy zoning regulations; and Potential bias and pre-judging by the land use boards. Selectperson Greer expressed that the all the Board members are not professionals in land use and noted that the law is arcane and voluminous, further indicating that the Board is doing the best they can for our beloved town. Selectperson Greer explained that he fully knows every member of all the boards has the best of integrity and intentions, noting that he sincerely appreciates the ZBA and Planning Board for bringing this matter to the Select Board’s attention, further indicating that everyone make mistakes. Selectperson Greer explained that the definitions of warehouse and retail business are vague, noting bulk storage and bulk sales outlet under the warehouse definition is not defined at all. Selectperson Greer further explained that the problems caused by these fuzzy explanations and a conflicted building inspector have been exacerbated by the land use boards themselves, by means of public letters received from the ZBA and Planning Board Chairs, which opened the boards up to possible claims of bias or prejudgment. Selectperson Greer also suggested that it is also possible that the ZBA attendance at a Select Board meeting, at the request of the Chair, constituted an illegal meeting. Selectperson Greer explained that normally with the Fire Chief issuing a Certificate of Occupancy, the Board would issue a Notice of Potential Violation and let the ZBA adjudicate this, however, given that the Select Board is the only board without potential prejudgment issues or conflicts, he is recommending that the Select Board vote on whether 104 Route 3 North complies or does not under Section 403.1 District Regulations and Uses. Selectperson Mills explained that the use would be addressed after this. Selectperson Mills reread the motion. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.
Selectperson Mills summarized the use of the property, noting during deliberations, the Select Board discussed its observations during the April 19, 2023 inspection and determined that the current owner’s use was different from that of the previous owner. The Board determined that the current use could be categorized under Section 403.1 of the Zoning Ordinance as: a parking facility, including serving off-site uses; or a retail business and services including storage and distribution related thereto, exclusive of junk yards and gasoline sales, without drive-through services; or a warehouse for storage and distribution.
The Board discussed the three uses as indicated on the cease-and-desist order.
1) Applicant initially thought he had a “permitted by right” use of the building via initial self-determination under Section 403.1 of the Zoning Ordinance Uses (part 21). Zoning Ordinances page 13: A retail business and services including storage and distribution related thereto, exclusive of junk yards and gasoline sales, without drive-through services.
2) At the meeting the owner re-evaluated consideration of use now expressing the use falls under that which is represented under the zoning ordinances (part 16) page 13 instead as: building/property as a parking facility, including serving off-site uses.
3) At the meeting, discussion was also considered on whether it was more aligned under the zoning ordinances (part 31) page 13: a warehouse for storage and distribution with an attendant need for a variance.
Selectperson Mills explained that the Select Board has to use its best judgment in resolving these questions, noting the board may utilize all the information gained from the public hearing; individual research and study; as well as the training available through NHMA and information provided by town counsel. Selectperson Mills pointed out the following:
* As there is no retail business operating at the location, the use of the property under part 21 as the applicant originally thought would not be accurate. To proceed with that would necessitate a variance in that zoning.
* Operation under part 31 of the zoning ordinances is not permitted except in industrial use areas. Additionally, the definitions in the zoning ordinances are problematic.
* Finally, and particularly after the members of the Select Board conducted an on-site inspection of the property; the property may be viewed in fact as a parking facility, including serving off-sites uses—a permitted by right use of the property.
Selectperson Mills motioned that the Select Board, Town of Carroll judge that the property: Scalley Rt 3 104, LLC is currently being used under the Town of Carroll zoning ordinances (part 16) page 13 as a use permitted by right: a parking facility, including serving off-site uses; with the admonition that if any changes are made to this use, the owner will have to go to land use for further consideration; Selectperson Greer seconded. Discussion – Selectperson Mills explained that the Select Board uses judgement in enforcement action inherent in the public body of the Select Board, which demonstrates caution regarding any other changes in usage and preserves planning and zoning integrity, in so far as the documents are written. Selectperson Greer stated that he has already given his two cents, Chairperson Marquis expressed that he personally feels the property is a warehouse (#31), noting the size does not matter in his opinion. Selectperson Mills reread the motion. All in favor: Mills-AYE, Greer-AYE, Marquis-NAY. The motion passed 2-1.
Selectperson Mills motioned that the Select Board, Town of Carroll hereby waive the portion of the cease-and-desist order that Scalley Rt 3 104, LLC also obtain a Zoning and Building Permit in accordance with Section 802.1 A-6 of the Zoning Ordinance as there is no construction, alteration, remodeling, or structural changes occurring on the property, per the Select Board’s discretionary functions in enforcement. Selectperson Greer seconded. Discussion – Selectperson Mills explained that the situation poses a direct contradiction to ordinance interpretation and enforcement as written and thus necessitates a broader consideration of waiver. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.
Selectperson Mills noted that this now resolves the cease-and-desist order by the Board.

OTHER

Alex Foti voiced his concern of Selectperson Greer’s statements earlier, in reference to the Boards being bias. Discussion regarding 91-A and Board members talking to other Board members.

Selectperson Mills submitted his resignation letter, effective at the end of tonight’s meeting, following non-public. A copy of his letter is attached. The Board thanked Mills for his service.

Mike Hogan suggested that the zoning ordinances be looked at and a task force in collaboration with the other Board do determine what works and what does not. Planning Board Chair Alex Foti agreed and stressed the hurdles people face trying to start or do business in Town. Foti also suggested looking at all the permitting functions and simplifying for the applicants. Foti noted that things would need to be wrapped up by September/October in order to get changes onto the ballot. Selectperson Mills explained that he has a working document in progress of changes to the zoning ordinance and voiced his willingness to continue.

The Board discussed a date for the next meeting, however decided to announce the date after non-public.

At 6:25 p.m., Selectperson Mills motioned to go into non-public session per RSA 91-A:3 II. The motion was seconded by Selectperson Greer; Discussion – none. The Board agreed; All in Favor: Mills-AYE, Greer-AYE, Marquis-AYE.

At 8:09 p.m., Selectperson Mills motioned to return to public session and seal the minutes. The motion was seconded by Selectperson Greer and polled; All in Favor: Mills-AYE, Greer-AYE, Marquis-AYE. The motion passed unanimously.

The Board discussed a date for the next meeting. Chairperson Marquis announced that the next Select Board meeting is going to be on Tuesday, June 20, 2023 at 5:00 p.m. in the Community Room.

Selectperson Mills motioned to adjourn the meeting. Selectperson Greer seconded. All in Favor: Mills-AYE, Greer-AYE, Marquis-AYE; and the motion passed unanimously. Chairperson Marquis declared the meeting ended at 8:10 p.m.

ATTACHMENTS TO 6/13/2023 MINUTES:

Scalley Rt 3 104 LLC cease-and-desist

Mills Resignation Letter