Board of Adjustment Meeting Minutes

Minutes of 8/13/2020

September 1st, 2020

Town of Carroll Zoning Board of Adjustment
92 School Street
Twin Mountain, NH 03595
Meeting Minutes
August 13, 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: Heather Brown

Minutes Taken By: Judy Ramsdell

Pledge of Allegiance

Item 3 of the Agenda: Approval of Minutes of July 9, 2020

Chairman Foti asked for an approval of the minutes of the July 9, 2020 meeting minutes. A motion was made by Andy Smith to approve the July 9, 2020 ZBA meeting minutes. The motion was seconded by Ken Mills. The motion passed.

Unfinished Business:

Aaron said that we don’t have a Public Hearing tonight. We were supposed to have a hearing on a cell tower application for a special exception. Everything was done for this except for the newspaper notice. There was no way to get the public hearing notice in the Coos County Democrat five days before the hearing. Aaron said that he chose to postpone that meeting until next month. The lawyer was fine with it. The lawyer did say we could have opened the hearing and then said we have to postpone it. Aaron said he did send out notices to the abutters for next month instead. Aaron said he felt the right path to follow was to re-notice the meeting and have it next month. In the Rules of Procedure it is written clearly that it has to be put in The Coos County Democrat. The Planning Board removed this procedure from their Rules of Procedure. Our RSA’s do not allow that so Public Hearings have to be posted in the newspaper. Aaron suggests we strike the Democrat, then he could use other newspapers.


In the meantime, another cell tower application is on the table so we will probably be having two public hearings at our meeting on September 10th. Will that create a “who got here first scenario?”. Here is the dilemma—two applications are for the same thing and across the street from each other. We have to make the best choice for our town. It is not who came first. The Planning Board is having an outside person review the application. The applicant will be responsible for that cost. It may help determining which applicant would be better than the other. Aaron said one is taller than the other. Ken Mills encourages everyone to review the Telecommunications Act of 1996 before the next meeting.

The abutters will be noticed. If they want to participate, they certainly are welcome to. We typically don’t have a lot of abutter participation. Andy Smith is wondering if we can approve both? We have our own regulations as well. Aaron said he agrees that given they are both Applications for Special Exceptions, and there are not a lot of special exception requirements. We should all prepare. He is not sure we should approve both. Andy Smith asked if we will have town counsel present? Ken said he feels it would be a good idea. The better prepared we are the better. We deliberate over the facts and the law. An attorney can help keep things on task. Has town counsel been involved in this process? What is the process to get them involved? Rob Gauthier said he can certainly bring it up at the next Board of Selectmen’s meeting. There is nothing wrong with tabling things to consult with a town attorney after the presentation. Andy Smith strongly urges town counsel be present. This is a large financial transaction for the landowners. We absolutely have the right to approve both applications if they both meet the criteria. He wants to be sure we cross our T’s and dot our I’s. He feels it is prudent to have the town attorney present. These are big decisions. Is distance between towers a legal consideration? There may be reasons not to approve the towers. From a land use stand point, if we are asked by someone to use their land under a special exception, we can’t say well someone else came first. There may be conflicting laws. A recent application was denied due to FAA regulations. It could be the Planning Board if there was jurisdiction to choose one. The ZBA members agreed that we would like the town attorney at the next meeting. Rob will bring it to the Selectboard.

Aaron will be out of town from 8/15 to 8/22, and he will have time to notice the other application if it comes in.

Item #4 of the Agenda - Review Rules of Procedure
Aaron said he put together a few amendments. He got to the high priority items.

Aaron proposed adding the follow to the Meetings section:

Remote Attendance:

1. Members may participate in a meeting by telephone or other electronic communication—but only if the member’s attendance is “not reasonably practical.” The reason that in-person attendance is not reasonably practical must be stated in the minutes of the meeting. Except in an emergency, at least a quorum of the public body must be physically present at the location of the meeting.

2. An “emergency” means that “immediate action is imperative and the physical presence of a quorum is not reasonably practical within the period of time requiring action.” The determination that an emergency exists is to be made by the chairman or presiding officer, and the facts upon which that determination is based must be included in the minutes.

3. Each part of the meeting must be audible “or otherwise discernable” to the public at the physical location of the meeting. All members of the public body must be able to hear and speak to each other simultaneously during the meeting, and must be audible or otherwise discernable to the public in attendance. No meeting may be conducted by electronic mail or any other form of communication that does not permit the public to hear, read, or otherwise discern meeting discussion contemporaneously at the meeting location specified in the meeting notice.

4. All votes taken during such a meeting must be by roll call vote.

5. Any member participating remotely must identify anyone present at the remote location.
Any discussion on Remote Attendance. Sandy Pother was curious about #2—the emergency. If we are going to do anything, don’t we need a quorum? Andy said his suggestion is we separate the two issues. Remote attendance is reasonably practical. The next is the quorum, which is a separate issue. I can’t make it because my car broke down, but I can participate remotely. We do allow remote participation. We can still allow remote participation for a quorum in the cases of an emergency. What would constitute an emergency? Aaron said that these rules are written probably for bigger towns—something that might have an immediate effect on construction, etc. This is an administrative pre-emptive act so we can have it if we have to act on it. We should not take that last sentence out. It is adding an extra detail. If it is not an emergency, then three members of the Board need to be physically present. Janet suggests we make a change in the format only, not wording. She suggests we format it like the RSA’s are formatted. We want to make #2 a sub of #1. #2 will become #1a. #3, #4, and #5 look fine.

The proposed second amendment is to Amend Application/Decision as follows:

To change the meeting package section to read as follows: For each meeting, the secretary shall prepare a meeting package which will be shared with members of the Board electronically or in print at least three (3) days prior to the meeting.

As it currently reads it only allows for the Secretary to have physical hard copies to be picked up and this amendment lets it be done electronically as well.
The proposed third amendment is to Amend Public Notice as follows:

i. Public notice of public hearings on each application shall be posted on the Town’s website and the Town Hall Bulletin Board not less than five (5) days before the date fixed for the hearing. Notice shall include the name of the applicant, description of the property to include tax map identification, action desired by the applicant, provision of the zoning ordinance concerned, the type of appeal being made and the date, time and place of the hearing.

ii. Strike from the second section “the Planning Board, Town Clerk, Code Enforcement Officer and”

iii. Strike from the second section “and shall be made on forms provided for this purpose”
Aaron said he wanted to remove public notice of public hearings but found it was not possible. He replaced having it posted at the Fire Station with having it listed on the town’s website. Andy Smith is wondering if we should add 5 “calendar” days, just for clarity? Are we allowed to say a newspaper of local circulation? Our current guidelines say it will be published in the Coos County Democrat. Andy Smith said he doesn’t like naming any newspaper. Ken said he is in general agreement. Aaron said he took it out because the RSA is there. Andy is wondering if we should state the RSA, pre-empt it with in accordance with RSA 676:7. Ken said RSA’s are written to be general. Our policies and procedures are written so we know how a meeting has to be done. It is mostly an internal document that is not publicly available. We can’t supersede state law, regardless of how we feel. We could state “Public Hearings shall be posted in accordance with RSA 676:7”. We know we have to comply with the RSA’s. As long as we comply with the RSA’s we should be all set. We just need to be sure we do things in compliance with rules and laws.

Aaron said he would like to add the exact wording as it is written in the RSA. His only concern is if someone wants to sue us because they could argue the newspaper we choose isn’t in the area enough because it is open for interpretation—that is the one thing we should be worried about. If we state in accordance with RSA 676:7, at least we will have the state law behind us. We are in compliance and we are stating exactly what we are doing. We do the best we can and try to be as transparent as we can. Andy has a fear that the newspapers will go out of business. Ken said this is an annual review so it can be changed annually.
The point of the change is to strike the Democrat and strike the fire station. He also wanted to change “Notice shall also be given to other parties deemed by the (delete: the Planning Board, Town Clerk, Code Enforcement Officer and) Board to have a special interest. Aaron said he chose not to strike “and other parties deemed by the Board to have a special interest.”

Aaron provided all the members the current copy of the Rules of Procedure, which were approved June 14, 2012.
c-iii--took out “and shall be made on forms provided for this purpose.” Aaron said he doesn’t think we have those forms.
Andy Smith said he thinks we should delete that section “and other parties deemed by the Board to have a special interest.” Once we make specifics is when we run into issues. Why didn’t you deem me to be of special interest? Andy thinks we should just take it out altogether.

Aaron made a motion that we accept the proposed amendments as written with the following changes:
On c. Amend Public Notice we will add “calendar” after 5, and we will include the RSA terminology for newspaper notices so it will read as follows:
In accordance with RSA 676:7, public notice of public hearings on each application shall be placed in a newspaper of general circulation in the area not less than five(5) calendar days before the dated fixed for the hearing and will be posted on the Town Website and on the Town Hall Bulletin Board. Notice shall include the name of the applicant, description of property to include tax map identification, action desired by the applicant, provision of the zoning ordinance concerned, the type of appeal being made and the date, time, and place of the hearing.

On c ii, we will include striking “and other parties deemed by the Board to have a special interest so it will read as follows:
Abutter notice shall be made by certified mail to all abutters not less than five(5) calendar days before the date of hearing. Said notice shall contain the same information as the public notice.
Andy Smith seconded the motion. Andy would like to suggest adding to the motion “subject to review and acceptance by town counsel”. These are significant changes we are making. Andy would like to have our attorney approve or disapprove. He would like the town attorney to take a look at these amendments.
Aaron moved to add to his motion “subject to review and acceptance by town counsel.” Andy seconded the motion. No further discussion. All members were in favor of the proposed amendments.

Aaron said he be willing do update the rules of procedure format. He said it is a clean-up issue. The format has to have relevance to how a document reads. He would like the board to approve those formatting changes so he is not acting on my own. Aaron will do the reformatting first.

Janet Nelson made a motion that we approve Chairman Aaron Foti to reformat the Zoning Board of Adjustment Rules of Procedure as amended and prior to town counsel review. The attorney will get the amended, reformatted, clean document. The motion was seconded by Ken Mills.

Aaron said in that process he might find a few other things and he will bring them up to the Board before we bring it to the town attorney. All in favor of the motion. Motion passed. Aaron abstained from the vote.
Janet said what was the decision on the items we had discussed for several other amendments one of them being if the building inspector doesn’t provide written notice. Aaron said he didn’t have enough time to get to those. We can amend our rules whenever we want. We always have the option. We are pretty protected in doing that. Ken Mills said he doesn’t think the Board wants to get into a position. A deliberative body deliberates. He doesn’t like formalizing in that nature. He doesn’t think it serves the body, the applicant or the official.

Andy said from an observation stand point the process of accepting an application should be very clear. Before we do any kind of discussion on the application, we need to be very specific we have everything and the application is complete.

Aaron referred the Board to page 4 of the Public Hearing rules. We do already have something here to the effect. He just wants to be sure we follow our procedure. Andy thinks the first step we need to take is to accept the application as complete. Andy wants to add formal acceptance of the applicant into our public hearing process. Andy said maybe it is one more bullet before the Public Hearing. Aaron said it is an application that triggered the public hearing. We should accept the application as complete after the first two bullets. The planning board has a checklist for a site application. It is not required by the ZBA. We need to be thorough if we are going to do it. Janet said it would be nice to have a checklist. This would work for a special exception or a variance. We could have two different checklists. Andy and Janet feel we need a checklist—we would be much more consistent with our decisions. The clock starts ticking once we accept an application. We don’t vote on accepting an application for a special exception or a variance. Janet said it doesn’t have to be complicated. A checklist and a motion to accept an application. What are the requirements for completion? This is important additional information. Janet doesn’t want to make it complicated. Andy would leave it to have the paid staff to work on an application checklist to put in our procedures prior to opening up a public hearing. Ken said if an applicant is better prepared, we are less likely to enter into discussions.

Aaron will do his best to propose that. He spent a lot of times on ZBA things the past month. If people want to be more involved in the process, he would be glad. Bring something forward—send it to Aaron so it can be on the agenda. He thinks it works and is a good way to communicate. Andy said he will do his best to review the planning board acceptance of an application and propose a ZBA acceptance of an application and get that out to everybody for comment. It helps if we can be consistent with the applications.

Aaron said any proposals should come to him, as he is acting as the secretary and he can review them. It will be sent to just him and he will add it to the agenda.

A motion was made by Aaron Foti to adjourn the meeting at 8:45 p.m. The motion was seconded by Ken Mills. The motion passed.