Board of Adjustment Meeting Minutes

Minutes of 7/9/2020

July 13th, 2020

Town of Caroll Zoning Board of Adjustment
92 School Street
Twin Mountain, NH 03595
Meeting Minutes
July 9, 2020
7:05 P.M.

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

Public Present: None

Minutes taken by: Judy Ramsdell

Pledge of Allegiance

Item 3 of the Agenda: Approval of Minutes, June 11, 2020

Chairman Foti asked for an approval of the minutes of the June 11, 2020 meeting minutes. The draft minutes got posted, and on June 23, 2020 Andy Smith requested a change to the minutes as follows: Page 2, last paragraph, 4th line should read: "Andy Smith responded the variance, if approved, would run with the land.” A motion was made by Aaron Foti to approve the amendment. The motion was seconded by Ken Mills. The motion to amend the June 11, 2020 ZBA meeting minutes passed. A motion was made by Andy Smith to approve the June 11, 2020 ZBA meeting minutes as amended. The motion was seconded by Janet Nelson. The motion passed.

Item 4 of the Agenda: Review Notice of Decision for Phillips-Burke

Chairman Foti thought it was a good idea to review the Notice of Decision for the Phillips/Burke application. Aaron said that he and Andy attended the Selectboard meeting last Monday to discuss this Notice of Decision. Sara's last day of work was the day after the last meeting so the Notice of Decision was generated by Bonnie after the last meeting. Aaron said he was sent a copy and had some feelings about it, but got delayed in getting through those and didn't get it back quickly enough. Attorney Simon Brown, Counsel to the Zoning Board of Adjustment, edited it and signed it and sent it out. The Selectmen had a challenge to move this forward. This Notice of Decision was done and signed
by Simon. This Notice of Decision is good and is done. There is nothing to vote on for this but Aaron thought it was prudent to bring it forward.
Andy Smith said he didn't think it was a bad idea to ratify it. It was voted on by the ZBA, but it was put into writing to send out by someone else and it was not signed by one of our members. Andy made a motion to ratify the decision made by our Town Attorney as written. Janet was wondering about the process and what it was. Aaron said after our decision is made the next step is for the Secretary to send out the Notice of Decision. It would be signed by the Chairman or Vice Chairman. In this case, the Town Attorney signed it. We never ok'd that, and we want to bless the fact. Rob Gauthier said we have spoken quite a bit about this and Aaron and Andy attended a non-public meeting with the Board of Selectmen this past Monday. There was a breakdown in communication which has led us here. Rob didn't know what day Sara was leaving. The Notice of Decision needs to be sent out in five days. We want to make sure everyone was aware of what happened. The decision Attorney Brown signed was correct in content. Andy has made a motion to ratify the Notice of Decision, which he withdrew.
Ken Mills made a motion that in lieu of normal ZBA protocols being available, the Notice of Decision as signed by Attorney Simon Brown be accepted by this Board. Andy Smith seconded the motion. Aaron said that this is an incredibly complicated decision we came up with, and it is prudent we are all in agreement with it. Chairman Foti reviewed the four decisions and read the Notice of Decision.

Item A: Board's Decision: Upon modification of the two larger units to bring them under 400 square feet of living space, these units will be recognized as "Recreational Vehicles" under RSA 216:I.

Andy said he thought he said heated living space. Ken doesn't think that was germane to what made it legal or not. Andy said that living space is defined as heated living space in the realtor environment. Is it in the spirit of what we agreed on? It was agreed we are ok with Item A.

Item B: Board's Decision: Upon compliance with Decision "A" above, the lofts in the two long units may be used for sleeping if the loft area is compliant with ANSI 119.5 Standards. Such compliance shall be determined via inspection of the two long units by the Town of Carroll Fire Chief.

Aaron said that B is perfectly stated. This was one Aaron was most concerned about. He would have liked more time to think about this one. Aaron asked, do we have the jurisdiction to ask our Fire Chief to apply the ANSI codes? It is a challenging standard for the Fire Chief to apply. Focusing on the spirit here, we did the best with what we had. We went with the ANSI codes because it addressed lofts. Ken Mills said speaking about the Fire Chief they have state, federal and local codes to apply and for the Fire Chief to take ANSI requirements, we are not getting too far out of their skill set. ANSI is another medium of bringing data into the safety equation.

Item C and Item C(b) were withdrawn by the applicant's attorney, Sandra Cabrera.

Item D: No specific further action was requested or granted.

Aaron said that we made fewer decisions than it felt like. There was no further discussion on the motion. The motion passed.

Item 5 of the Agenda: Review June 23, 2020 Letter from Attorney Cabrera from Waystack-Frizzell

Aaron said that we did get a letter from their Attorney confirming in writing that the petitioners are no longer seeking the designation of a campground for Map 418, Lot 001, but instead the units on this lot are considered lodging. They have been approved to operate as a campground. They can choose not to operate as a campground. Andy thinks by this letter, they can't operate as a campground. They would need to get a special exception again if they decided to go ahead with a designation as a campground. The letter reflects nicely what is in the Notice of Decision.

Andy Smith said he would like to ask the Selectmen's representative, with the Board's acquiescence, that we send our support to both the Building Inspector
and Fire Chief recognizing the difficult situation they were in. They have our full support. We denied the applicant's request for a state inspector. We respect Jeremy's decision and respect their input at the meeting. Life safety is very important to this Board. Rob said that he will convey this. There was an extensive amount of contact with this applicant. This whole process wasn't easy. Lines of communication were open. Ken Mills said during the evening their attorney's language gave exception to that. They said they don't make it personal, but Ken took exception to that. Aaron said he feels that the Board did an exemplary job of trying to remedy an issue. We want to make sure that message goes forward. There were a lot of personal jabs. We had been dealing with this for a while. Janet Nelson said she does take into consideration if they are going to take this to court. With this particular issue, that does weigh in here. We did look at the law, and it was very important as we went through that. Mr. Gauthier said that there was a lot of untruths and manipulation of words and spinning of stories that took place by this applicant. He would love to say yes to everybody. Jeremy and Dave did work hard to help this applicant and it never seemed to be enough. We support the building inspector and fire chief and would like to convey that to them. Aaron said he feels that we showed strength in our knowledge, and he is proud to be part of the team.

Item 6 of the Agenda: Review Rules of Procedure

Aaron asked if anyone had any issues with the Rules of Procedure.
Ken Mills said he would like something included to cover remote attendance for meetings. He said he had given Sara a boiler plate of criteria for remote attendance. Aaron said that is not barred by our rules. Ken said he feels it is best to include it in the Rules of Procedure. It is probably a good idea to formalize it. People need to be aware with remote participation you need to speak clearly and give people time to say they cannot hear. Ken will try to locate that before the next meeting and Rob said he will find the state statute covering that as well.

Aaron said he has a challenge with an issue that has recurred for this board, with decisions coming from the Building Inspector and not following the rules they are supposed to be following.

The attorney is saying correctly that there are all these requests but they don't cite law. We have been in this position before when it happened last year with the gravel pit. He was given a given a verbal cease and desist, but where was he given it? When did this happen? What happened? How are we adjudicating these issues? They still didn't cite law and it leaves us in a position to ask or look into the building codes. There is room for criticism all around.
When we have a member of our town come to us with an application we expect them to follow the rules. Sometimes we are willing to let town officials not
follow the rules.

Andy Smith said the concern is recognized. It was a point of discussion at the Selectmen's Meeting on Monday. If the ZBA doesn't think it is in compliance, the ZBA can overrule decisions by other town officials to be the stop gap. That is not what the rules say. It is the general effort of the Town to raise up, and we are doing the best we can. We will get better. We shouldn't change our process--that is what we are for.

Mr. Mills said that the ZBA doesn't have authority over the Building Inspector. Read the criteria for what we can and cannot do. It is the Selectboard’s responsibility to train any town official in what they need to do and not do in that capacity. If a town official, in whatever their capacity is, says you can't do that then they are going to need to cite the laws that support that. The Selectboard needs to take it upon themselves to be sure all officials are adequately trained and are appropriate in carrying out their duties. Ken said he feels too many duties are concentrated with too few people. We need to have adequate staff in conducting this type of business. Rob said the request here is duly noted.

It was stated that without a Code Enforcement Officer, we don’t have a means to enforce the rules. This has come up with the Selectboard. It has been a challenge on multiple issues. Mr. Mills says we need to take this back to the Selectboard and back to the voters. With the authority comes the responsibility, and the problem is we don’t want to pay for planning and zoning. We need to encourage the Selectboard to get serious about this. It has been an on-going thread—we want it all, but we don’t want to pay for it. If you don’t fund your land use board, you will find yourself in court all the time. Mr. Gauthier said the Board is talking about options to try to entice stability in these boards by monetary means. The day to day operation is hampered without enforcement and arbitrary decisions being made. Mr. Mills says we need adequate help to assist us. It has been difficult since Rena left. Judy Ramsdell said Whitefield has the same issues and maybe it should be looked into Carroll and Whitefield going in together to hire a Code Enforcement Officer.

Andy Smith said that as a Board, we need to be clear on our process for accepting an application as it comes in. We should have a checklist to go by. That should be part of the application process. Janet Nelson said she believes that we have done that formally before. It is statutorily required for the planning board, not the zoning board of appeals. It clarifies that we crossed that bridge.
The value to it is that we ask all applicants for the same materials, and it is consistency so we have everything we need. We need some type of official process to accept an application. Mr. Mills said he believes that Lancaster does a pre-meeting where they review the application process so everyone gets treated fairly. Andy said he feels it is better to check it off on a checklist.

Aaron said one thing he was thinking of, and he knows we have talked about it many times, is that the Planning Board has adopted a rule they will not make a decision the night the application is received. It has to wait until the next meeting. Different people have different comfort levels on reviewing and approving applications on the same night. Andy said he doesn't think he would support it. There are times when it is a pretty easy approval, and some are clear and there is no reason to make them wait for 30 days. If the applicant knows it going in, and we get the word out there so everyone knows. There is nothing that is immediate, but it doesn’t mean the applicant doesn’t have a sense of urgency. It was asked if we can put in the rules of procedure allowing for an exception for this? A Special Exception should have a lower threshold than a variance. Mr. Smith said the Morneau application from the last meeting didn’t need to wait 30 days for a decision. It was pretty straightforward. It is something to think on. The expectation is that you may not get an approval on the first night.

Aaron said that we don’t have an obligation to meet next month, unless an application comes in. Aaron suggested everyone review the Rules of Procedure before we meet again.

Ken Mills made a motion that we table the discussion on the Rules of Procedure tonight. The motion was seconded by Andy Smith. The motion passed.

Janet Nelson made a motion that we meet again next month even if there are no applications so we can continue with the review of the Rules of Procedure. The motion seconded by Ken. The motion passed. The next meeting will be the second Thursday of August.

A motion was made by Aaron Foti to adjourn the meeting at 8:32 p.m. The motion was seconded by Ken Mills. The motion passed.