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Minutes of 1/14/2021

January 18th, 2021

Town of Carroll
Zoning Board of Adjustment
92 School Street
Twin Mountain, NH 03595

Meeting Minutes
January 14, 2021
7:00 P.M.

“These minutes of the Town of Carroll Zoning 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 a future meeting when the board votes its final approval of the minutes. They are made available prior to final approval to conform to the requirements of New Hampshire RSA 91-A:2.”

Due to the COVID-19/Coronavirus crisis and in accordance with Governor Sununu’s Emergency Order #12 pursuant to Executive Order 2020-04, this Board is authorized to meet electronically and did so through Zoom.

Members Present: Chairperson Aaron Foti, Vice Chairperson Andy Smith, Janet Nelson, Ken Mills, Sandy Pothier, and Selectperson’s Representative Rob Gauthier.

Alternates Present: Diane Rombalski and Karen Moran

Public Present: Robert Stalaboin, David Scalley and Jeremy Oleson

Minutes Taken By: Heather Brown

Meeting called to order at 7:03 p.m. by Chairperson Foti

Chairperson Foti stated the reason for the remote meeting tonight is: COVID.

Chairperson Foti asked that everyone present could hear and clearly understand what is being said—everyone confirmed they could.

Chairperson Foti confirmed the board will do Roll Call votes.

Chairperson Foti asked that each member identify themselves and if anyone is present at their remote location.
• Foti—home with Diane (alternate ZBA member), family is downstairs
• Smith—Bretton Woods office, with dog
• Pothier—home, with Ken Mills
• Mills—home, with Sandy Pothier
• Nelson—at a friend’s house on the lower level, alone
• Moran—home, alone

Pledge of Allegiance

Chairperson Foti recognized that the ZBA held a special meeting relating to the public hearing tonight on December 28, 2020 to elect two (2) alternates to the Zoning Board (Karen Moran and Diane Rombalski) and went over the rules of alternates.
• Can have up to five (5) alternates
• Serve three (3) years each, should be staggered, but since the ZBA had zero, decided to elect two
• Should attend all meetings to familiarize themselves with the workings of the board to stand ready to serve whenever a regular member of the board is unable to fulfill their responsibilities.
• Alternates who are not activated to fill the seat of an absent or recused member or who have not been appointed by the chairperson, may still participate with the board in a limited capacity, even during the public hearing. During the public hearing, alternates may sit at the table with the regular members and may view documents, listen to testimony, ask questions and interact with other board members, the applicant, abutters and the public. Alternates shall not be allowed to make or second motions.

Selectperson’s Rep Gauthier stated that there were two selectmen in attendance tonight, however Gauthier is here as the Selectperson’s Representative and Scalley is here as the public. Scalley confirmed he is at the meeting as a member of the public.

Karen Moran stated that because she knows the applicant, she would be recusing herself if called upon, and only here to observe.

Chairperson Foti’s reasoning for going over the rules, was so everyone was aware, since the board has not had alternates and it’s new. Alternates in general can participate, just cannot vote. It’s more pertaining to the voting process.

Item 3 of the Agenda: Approval of Minutes of the December 10, 2020 Meeting
Chairperson Foti asked for an approval of the minutes of the December 10, 2020 meeting and reminded members that they cannot vote if they were not present. Chairperson asked if there was any discussion—there was none.
Vice Chairperson Smith motion to approve the meeting minutes as presented, Ken Mills seconds. ROLL CALL VOTE: Foti-AYE, Smith-AYE, Nelson-AYE, Mills-AYE; motion carries, minutes from December 10, 2020 are approved.

Item 4 of the Agenda: Approval of Minutes of the December 28, 2020 Meeting
Chairperson Foti asked for an approval of the minutes from the special meeting held on December 28, 2020 and reminded members that they cannot vote if they were not present. Chairperson asked if there was any discussion—there was none.

Vice Chairperson Smith motion to approve the meeting minutes as presented, Ken Mills seconds. ROLL CALL VOTE: Foti-AYE, Smith-AYE, Mills-AYE, Pothier-AYE; motion carries, minutes from December 28, 2020 are approved.

Item 5 of Agenda: Variance Application (continuation from 12/10/2020)– (PLASZ): Robert Stalaboin DBA RGS Contracting on behalf of Jeff and Michele Plasz for a Variance to setbacks concerning article IV section 403.6 of the zoning ordinance. Applicant proposes a reduction of rear setback for added open deck space on the property located at: Map/Lot 203-010-010-023, #115 Grandpa Harry’s Lane, Twin Mountain, NH in the Rural (RU) Zone

Chairperson Foti appointed Diane Rombalski as a regular voting member to tonight’s meeting due to the recusal of regular board member Janet Nelson, which would provide a full five-member board as requested by the applicant at the last meeting. Chairperson Foti also pointed out that Sandy Pothier is at the meeting tonight and that would make the full five-member board as requested.

Chairperson Foti reviewed the question of an equitable waiver. It was determined at the last meeting that an equitable waiver was not appropriate because it specifically lines out that it’s not ignorance of the ordinance, but an error in measurement or calculation. The board felt at the last meeting it did not meet that standard, while there are a lot of similarities with an equitable waiver, thinks the board should continue down the path of a variance. Chairperson Foti asked if anyone had any comments.

Vice Chairperson Smith confirmed he felt it did not meet the criteria, not only the ignorance, oversight, but also a time thing. Something that has been existing for a long time, and it is not.

Chairperson Foti reviewed a few points of the application as an overview:
• Add a back deck
• The house right now is within the correct setbacks
• Adding the deck would push the footprint of the house into the 50-foot setback in the zone that it is in
• It was said at the last hearing that the deck is framed, so it has not been completed yet
• The two reasons stated that it is happening in this way are—lag in decision time of owners and a potential misreading of the wrong zone for the setback requirements

After reviewing the general facts from the application from the last meeting, Chairperson Foti asked if there were additions or questions—there were none.
Chairperson Foti reminded everyone that we are still in the public phase and asked the applicant (Robert Stalaboin) if he had anything to add.

Robert Stalaboin stated that other than what was said at the last meeting, he understands that the building could have been moved more towards the road to allow the distance behind it. The building was basically 100% completed. The owners right from the get-go when planning this, before starting construction, talked about doing a stone/paver patio, basically where the area where of the deck is at the moment. By the time the home was completed, the owners decided they would rather have a framed deck, that’s when he went to check setbacks and messed it up. Robert Stalaboin asked that instead of going the route of the other thing, maybe go for a hardship situation.

Chairperson Foti asked if there were any questions from the board.

Karen Moran asked how far back into the 50 foot setback the deck is proposed to be?—Robert Stalaboin responded, approximately 15 feet too close.

Chairperson Foti asked if there were any other questions from the board—there was none.

Chairperson Foti closed the public phase of this public hearing and moved onto deliberation by the board. He also reminded during this phase that no other members of the public are allowed input.

Chairperson Foti stated to the board needs to look at the five (5) variance criteria and that the board needs to be consistent with all applications and voting on the criteria (individually). Questioning if the voting on each individual criterion should be added to the rules of procedure. Chairperson Foti stated that in past meetings the board has been voting on each criterion individually and should stay on that path for consistency.

Chairperson Foti asked if there were thoughts or disagreements?

Ken Mills stated that when going through each item that it’s articulated clearly with each item as to the outcome with it. If you vote yay or nay, it’s stated in the ‘why’ each time that we do that. Chairperson Foti agreed and stated that in general he would like to get the very core of the ‘why’ into the motion, but if not, should have enough in the discussion to support that.

Chairperson Foti asked the board if they should go through the five variance criteria individually, or if anyone had something in particular that was most important that they would like bring up now or go through them one at a time?

Vice Chairperson Smith stated that in saving everyone a lot of time, he feels the board could go through the first four criteria and find that this is not going to be a public nuisance in the spirit of the ordinance, it’s not going to cause any neighborhood value problems. Number five, it doesn’t meet any of the criteria. The testimony by the builder (Andy thanked Robert for being upfront), the owners of the property wanted a patio and now they want a deck, the zoning doesn’t allow a deck. There is nothing special about this piece of land. There is not a hardship that’s either been specified in the application or in the testimony. Do not think or see there’s any way how the board could see a way to allow this, there’s no hardship that’s been presented to the board. Consequently, I will be voting to not approve this variance, based on the lack of a hardship.

Chairperson Foti asked if there was discussion from the board on this.

Ken Mills stated that he thought he understood the board was going to go through each item and articulate why the yay or nay and close it out from there. Chairperson Foti agreed, and explained his interpretation from what Andy said was that Andy’s goal is, that if the board could all somewhat easily agree that criteria 1, 2, 3 and 4 are not going to be an issue and not have any discussion on each one, the board could really move to voting.

Chairperson Foti asked if there were any comments or discussion on the criteria of 1, 2, 3 or 4 that they feel significant to point out?—Ken Mills stated no. There were not other comments from other members.

Chairperson Foti moved the discussion to criteria 5, hardship. Referenced and read section 804.4 for variances, #5, paragraph (a):

“(a) For purposes of this subparagraph, "unnecessary hardship" means that, owing to special conditions of the property that distinguish it from other properties in the area:”

Chairperson Foti stated that he would stop reading there, as this is where the challenge is, which is what Andy is bringing up. There is a roundabout way, which is to go to paragraph (b).

“(b) If the criteria in subparagraph (a) are not established, an unnecessary hardship will be deemed to exist if, and only if, owning to special conditions of the property that distinguish it 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.”

Chairperson Foti said that Andy articulated it nicely and agrees. He also stated that there is a strong part that wants them to have the deck, which seems like a nice thing and does not think if would affect anybody, but that’s what 1, 2, 3 and 4 are about. Section 5 is different, is about making sure we that are not looking at properties one by one and saying you can do this, do this, do this, because if you start doing this, then the whole purpose of creating zoning doesn’t work anymore. That’s where it’s talking about reasonable use, in my opinion. Having a deck is an additional use, it’s a nice thing, the property is very reasonably used as is right now, granting this variance is not going to correct anything about the reasonable use of the property. The ordinance is clear and additional reading on legal precedent, and continues to remain quite clear, it requires something unique and special about the property itself, not the timeline of its construction.

Chairperson Foti stated that its still open to other members for discussion.

Ken Mills reiterated that in the very beginning of 804.4, variances, the word “all” is in the description and that is not a negotiable item.

Vice Chairperson confirmed that they must meet all five criteria. Ken Mills agreed. There was no other discussion.

Vice Chairperson Smith motion, based on the application and the lack of the ability to find a hardship in this situation that we deny the variance, Ken Mills seconds.

Chairperson Foti stated that the board has motion and a second on the floor, the motion is to deny the variance, as stated by Andy. As said before, do not want to waste time, but the board needs to remain consistent on how the board does its voting process. Want to decide as a board on the way of a decision of voting.

Discussion regarding voting process, as it’s been done both ways in past. There should be discussion on each of the criteria. You need to meet all 5 criteria. Consistency of process. Appreciate efficiency, but still follow rules. Wanted the minutes to reflect that the board is being responsible about it.

Chairperson Foti stated that there is a motion on the floor and asked if there was anyone who wanted to cancel the motion based on the discussion about voting—there was no comment from anyone.

Chairperson Foti reminded everyone of the motion on the floor, to deny the variance, as stated by Andy based upon the fact that there is not an unnecessary hardship met, which is a requirement of 804.4, #5, paragraph (a) and (b) that require it to have a special condition of the property that distinguishes it from other properties in the area.

ROLL CALL VOTE: Foti-AYE, Smith-AYE, Mills-AYE, Pothier-AYE, Rombalski-AYE. Unanimous decision with 5-AYE votes, motion carries, the variance is denied.

Chairperson Foti reminded the board and the applicant of the 30-day appeal period.
There were no questions or comments—Chairperson Foti closed the public hearing on the variance.

Robert Stalaboin, thanked the board and left the meeting.

Item 6 of Agenda: Review & Update Forms

Chairperson Foti spoke regarding the checklists—very thorough and detailed, however he would still like to go through them one by one and double check. There are many of them, one for each application and a meeting. Felt it would help to organize thoughts. Did not use for meeting tonight because we did not approve them and they are still progress.

Chairperson Foti spoke regarding forms—recognized the suggested changes Heather sent to the board members, however still wants to do more, which is a lot and feels like someone should go through it with a fine-toothed comb. Vice Chairperson Smith also agreed.

Discussion regarding the potential use of the checklists.

Chairperson Foti reminded the board that all five regular board members are present and Diane and Karen are alternates.

Discussion regarding checklists, Rules of Procedure, using checklist as a guide vs. included as part of an application, needing deeper review, use as a tool/guide and can refer to governing documents, public document vs. internal office use, right-to-know. The board agreed to not move on anything tonight as there is a lot more work to do and questions to be answered. Question—where does it come from that everything has to be part of the rules? Concern is if /or where it says ‘checklists’. Chairperson Foti asked the secretary to come up with language for each checklist to indicate this is not the ordinance, disclaimer indicating that it is used as a tool, may not 100% reflect the wording in the statute or the ordinance.

Chairperson Foti recommended members review the checklists and documents/forms for the next meeting.

Item 7 of Agenda: Other

Reminder that the are two (2) positions available, both are three (3) year terms, available March 2021. Sign up dates are January 20th-29th, 2021. Janet Nelson and Aaron Foti are the members up for renewal.

Ken Mills reminded all members that when sending anything, it should only go to the secretary, not to other board members. Chairperson Foti agreed.

Item 8 of Agenda: Adjourn Meeting

Vice Chairperson Smith motion to adjourn, Chairperson Foti seconds.
ROLL CALL VOTE: Foti-AYE, Mills-AYE, Nelson-AYE, Pothier-AYE, Smith-AYE; meeting is adjourned 7:58 p.m. The next meeting is February 11, 2021.