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Minutes of 11/04/2021

November 11th, 2021

Town of Carroll Planning Board
Meeting Minutes
November 4th, 2021
7:00 P.M.

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

Planning Board Members Present: Chairperson Alex Foti, Brian Mycko, Julie Roesbery, Austin Alvarez, Selectmen’s David Scalley, Julie Roesbery

Public Present: Les Apple, Len Wood, Jason, Mary, Thomas Sullivan, Holly & Chad Carter, Jason & Cheryl Rogers, Gardner Kellogg, Lisa & Joe Trainor, Ken Mills, Anita Greer

Minutes Taken By: Lisa Harley, Planning & Land Use Secretary

Item 1: The meeting was called to order by Chairperson Foti at 7:00 P.M.

Item 2: Pledge of Allegiance

Item 3: Approval of August 5th, 2021 Minutes

Alex made a motion to approve the August 5th, 2021 minutes as written. Brian Mycko second. Alex Alvarez did state that on Page 3, second to the last paragraph, 3rd line down it states “resident her” should be “resident here” made the correction. All in favor, with Julie Roesbery abstaining. The minutes of August 5th, 2021 are approved.

Item 4: Approval of October 7th, 2021 Minutes

Brian Mycko made a motion to approve the October 7th, minutes as written. Julie Roesbery second. All in favor, NO opposed, the minutes of October 7th, 2021 meeting are approved as amended.

Item 5: Consultation: Les Apple (Tiny Ventures LLC)

Les Apple—527-529 Route 3 North Map/Lot 205-034-000-001 & 205-034-100-002. Alex disclosed that he works with Les Apple and when it comes time for Les to come across the board with an application he will have to accuse himself. Les mentioned as of Monday night, him and his brother and his wife bought the 2 lots on Route 3 North, the old Northern Ambers restaurant and motel on Route 3 North. They closed on the 2 lots and are calling themselves the Tiny Ventures, LLC. One of the buildings has a lot of asbestos so his plan is to tear it down and merge the 2 lots together and put up approximately 14 tiny homes. Dave Scalley asked if the houses were going to have a foundation or on a slab. The tiny houses will be on slabs. Les mentioned he is not sure when he will start this project, there is a lot of work to be done.

Item 6: Sub-Division Application—Gardner Kellogg on behalf of Dennis Rogers is looking to sub-divide Map 207-Lot 020-056-025 into 4 lots on the corner of Mahlyn Drive & US Route 3.

Alex mentioned this application was accepted and completed at the last meeting. Alex mentioned there was a couple of things missing fire chief and the road agent. Dave Scalley asked if anything has changed from last meeting. Dave Scalley asked if there are any conditions from last meeting. Alex said there was a couple of conditions that we asked for:

1. Alex asked Gardner Kellogg if he had a chance to talk to the Fire Chief and he replied NO he has not had the chance. Alex said we do need to make sure the Fire Chief doesn’t have any concerns with the plans.
2. Alex asked Gardner Kellogg if he had a chance to talk to the Road Agent, Gardner Kellogg said NO not yet. Alex is ok with making a condition because it was pretty straight forward, a lot of it is conservation.

Dave Scalley verified the sub-division, setbacks and road frontage was correct. Gardner said yes. Dave Scalley asked Brian Mcyko if it was discussed with the snow mobile club and Brian said yes and everything was all set with the snowmobile club. Dave Scalley asked what Zone it was in and it is in RB Zone. Alex asked the board if they had any questions for the applicant—NONE
Alex asked the public if they had any questions for the applicant--NONE

Dave Scalley made the motion to approve DJR Realty LLC as complete. Julie Roebery second . All in favor, no opposed. The application is accepted with 2 conditions:

1. Fire Chief needs to review the plans with approval
2. Road Agent needs to review the plans with approval

Item 7: Site-Plan Application—Jason Sullivan of Beech Hill Campground, 970 Route 302 W. Map 207-Lot 002-000-000 is looking for Site-Plan of existing campground.

Alex mentioned this application was on the agenda for last meeting, and we could not hear it because of the abutters notices didn’t go out on time. There were some concerns with some of the abutters that we have not received a PDF. Jason Sullivan said it is not part of the requirement. Chair Foti said yes, but to clarify, it is a fairly recent and was adopted last time we updated our regulations. Jason Sullivan said it was not on the application, and Chair Foti said you are right it is not on the application. Chair Foti asked Jason Sullivan to walk the board through what he wants to do, Jason mentioned it’s an application for the campground as it sits now.
Alex asked what is the purpose of the Site-Plan application for something that already exist. Alex mentioned that a Site-Plan application is generally for a new business or expansion of a business. Jason Sullivan said the reason is so it can be filed with the county of what is existing. Dave Scalley asked are you trying to put a site plan together for existing conditions of the campground. Jason Sullivan said as it sits right now. Alex asked its not currently filed with the County? Dave Scalley said the site plan of existing campground as nothing is changing, nothing being removed, or nothing being added and Jason Sullivan said correct. Dave Scalley mentioned that the board knows that we have had a court case with Sullyville in the past. “In the case of Sullyville, LLC v. Town of Carroll No. 2019-0240, the New Hampshire Supreme Court held that the right to use the northern part of your property for a campground was waived by Jeffrey Jones in 1989 & 1990”. Dave Scalley asked Jason Sullivan if he could assure the board those lots that are discussed will be removed or not being used. Jason Sullivan said that the Supreme Court ruled that they are fine. Dave mentioned he talked to Town Counsel today. Jason said that town counselor wasn’t interesting on ruling anything. Dave Scalley said he has a letter from town counselor that the court made the ruling. Dave Scalley said those sites need to be removed or you need to sign off that you will not use those lots. Holly Carter mentioned that is not what the Judge said. Alex asked what Judge, because we read through the Supreme Court ruling. Jason Sullivan mentioned as the campsites sit they are being used and being taxed on. Mary Sullivan mentioned they have been there 16 years being operated and paying taxes for 16 years. Dave Scalley mentioned he is only going by what the Supreme Court is saying. Dave Scalley talked to town counsel and verified everything. The sites in the northern district that are in the second zone that need to be removed, because you have a RB Zone. Mary Sullivan mentioned we are not adding any sites, previously we were looking to add 30 sites in that section, but we are not adding those sites. It’s the current campground that we have had when we bought the campground 16 years and have been taxed on. The court didn’t say we had to take any existing campsites away. The town, when we went to court didn’t argue anything, we can’t add anything in that area, which we would then go to the ZBA but we aren’t. We want a site plan that we have, we want it file with the County so if our neighbors changes again, they won’t be fighting over sites that we already have and been existing for 30 years. Alex mentioned that we should get back to the application. Chair Foti recommends that we go through the procedure of the check-list so that we can accept this application. Chair Foti mentioned that we have the 5 sets of prints, proper acreage, property lines, nothing is being disturbed, names of all the abutters. Alex asked Jason if they have dumpsters and Jason’s response was yes. Alex doesn’t see anything on the application that is missing.

Brian Mycko made a motion to accept the application as complete, Julie Roesbery second. All in favor, say ayi. Dave Scalley asked for discussion to discuss the application to be complete. Alex asked if anyone opposed, no opposed. Alex mentioned the application is accepted as complete. Alex as mentioned earlier there is a requirement for PDF that was brought up. Alex would like to oppose that we make a motion to waive PDF requirement of the application will be required for the approved application.
Alex said as mentioned earlier there is a requirement for PDF’s, it will be part of the application moving forward. Brian Mycko made the motion to waive the PDF, Julie Roesbery second.

Lisa Trainor—She stated her name and mentioned she was speaking on behalf of the Greers, Woods, and some of the other abutters that signed the letter a couple months ago the board accepting the application on the bases that you do not have the authority to do so, as much as we appreciate the boards service the sole purpose of the application is to edge in a illegal non-conforming use that the Supreme Court determined and because they aren’t changing anything, they don’t have the authority to proceed, Lisa Trainor wanted to make sure it was on the record for following proceedings. Thank you.

Dave Scalley mentioned we are accepting the application tonight as it has been submitted.

Lisa Trainor—Understood.

Chair Foti—Substainal discussion will be next step.

Lisa Trainor— but unfortunately we have to object to that step because we just disagree.

Chair Foti—We can start on the discussion, we welcome the public, this Site Plan doesn’t meet the requirements of the setbacks by the Supreme Court, and personal base on what I have heard, I would agree with that. It seems pretty clear what the Supreme Court said when the property was purchased it was very clear that the existing property that it wasn’t usable, of the purpose of a campground. The previous owner forfeited the title to a campground, and that area that sits in R1 is no longer grandfathered in because the owner gave up that right of use. Alex is not sure he understands where it is stated that it is ok.

Mary Sullivan—it was the state ruling that those sites didn’t have to be removed. No standing, the town did not contest to those sites and in court.

Alex Foti—the neighbors have no standing, the town did.

Mary Sullivan—the neighbors wanted to

Jason Sullivan—the town does not have any standing, if the town wants those removed, no one said so .

Dave Scalley—Dave is just reading from a letter from the Supreme Court saying on page 4 of a letter stating that Jones waived his right to continue the nonconforming campground use in Lot 2 on Plan 448 A, he terminated the right to continue it for himself and for any subsequent purchase of the property.

Mary Sullivan—Mary asked where Dave was reading from, Dave said from the Supreme Court. Mary mentioned I guess we will be back in court again. This is a camp site that has been here for many years, and we have paid a lot of money on taxes, we aren’t changing anything to the campgrounds, we are paying taxes on all the sites and have been paying taxes to the town for 16 years.

Jason Sullivan—Basically what you are saying is if we didn’t come here, you wouldn’t care if we used the sites.

Dave Scalley said you were getting a letter anyways from the Town of Carroll to remove those sites.

Mary Sullivan—said we will be back in court again. You can’t take away property that has been there forever.

Dave Scalley—we aren’t taking anything away from you.

Mary Sullivan—we are going to continue fighting this case. We bought this property and have been paying taxes on it and you aren’t taking it away. The judge already ruled that it is not affecting anyone. The town lawyer and the Judge toured the property. They are tent sites.

Dave Scalley—we aren’t even considering the Trainors, it is the court’s decision back in the 1990 that Jones gave up his right to use those sites, in the Northern section of the campground R-1.

Mary Sullivan—wanted to know why Dave Scalley was still on this board, because last time you were on the Zoning Board you had to accuse yourself for reasons that never came out.

Dave Scalley—mentioned he has been on the Planning Board, and the Select Board. Dave Scalley mentioned he has not been on the Zoning Board.
If he had to accuse himself, it was when this court proceedings was still in action. Dave mentioned this is not what we are discussing now and yes I will discuss with legal.

Mary Sullivan—As we will also

Chair Foti—mentioned we are all volunteers here, we are not here to stop people doing what they would like to do. Alex mentioned he would like to help people do what they would like to do, but unfortunately when someone comes to us, I have it in front of me, the Supreme Court Judgement Final Ruling that says that there was a campground previously, Alex said he can’t go against the Supreme Court he doesn’t have that authority. If you want to work with us to trying to find alternatives that work within the current Zoning system that this town has to apply to this property, we are here to help you. Other than it isn’t the form to challenge the Supreme Court.

Mary Sullivan—we are disagreeing with what you are saying.

Alex—Disagrees with many of Supreme Court decisions but unfortunately it’s the law, we are subject to it like everybody else. Alex mentioned if don’t like the Supreme Court decision, not sure where you would go after the Supreme Court. Unfortunately we have letter a from legal, are hands are completely tied, nothing we can do.

Jason Sullivan—are you saying the town is not legally going pursue us to get them moved

Dave Scalley—we just sent out a letter, went out earlier today

Dave Scalley—Pretty sure, not removing the sites, but to verify they are not be used.

Dave Scalley—read a letter that was sent to the Sullivans:

Dear Mr. Sullivan,

In the case of Sullyville, LLC v. town of Carroll et al, No 2019-0240, the New Hampshire Supreme Court held that the right to use the northern part of your property for a campground was waived by Jeffrey Jones in 1989 and 1990.

In accordance with the Supreme Court’s decision, the select Board requests that you remove all campsites in the northern part of the property that lie in the R-1 district, or certify that those campsites are not being used for camping.

Please confirm in writing that all such campsites have been remove.

Thank You.

Town of Carroll Select Board

We are acting on what the Supreme Court and our Town Counselor told us to do. Again this isn’t our individual opinion this is the Supreme Court ruling and we have to follow it. Its’s pretty clear that the Site-Plan we can’t accept it because it doesn’t meet our Zoning Ordinance, or the Supreme Court findings. You have the opportunity to come up with a plan that does meet our ordinance.

Dave Scalley—The sites in question are A , B, C, D ,E and 38.

Joe Trainor—The sites that the board are discussing, the sites that are in question. Just for history sake every single file that has come through this board for passports, not only for the number of sites, but the type of sites, and are different on every single plan, it’s not specific on the plans. The court didn’t say that the sites couldn’t be removed, nor the Trainor couldn’t make them move them, and the last thing he established on the property was 448.A.

Ken Mills—Had a question about the Supreme Court ruling. Is there citations or information that they used to get that information from back in 1990. Dave Scalley said yes in the deed, Ken Mills mentioned so the deed of the property 1989 – 1990 flighted that citation or waiver of the Supreme Court. Dave Scalley said you can’t change the deed you can add to the deed. The waiver was added to the deed. Ken asked what point in time and Dave Scalley said 1989.

Dave Scalley—Dave mentioned what we need to do as a Town & the board as an applicant kind of step back and lets find some solutions, we have some sites that shouldn’t have been there. Back in1990 it might not have been Sullivans deal when you bought, you might have missed it, but we have sites that aren’t suppose to be in R-1, there are other options, if you want to across the board again to remove those sites or put them somewhere else it they fit the Zoning Ordinance, but right now we have a Supreme Court ruling that says 448.A in R-1 can’t be used.

Alex Foti—mentioned they have to be in the RB Zone.

Dave Scalley—Campgrounds are not allowed in R-1 or IND. They are allowed in RB and Rural W/SPECIAL EXCEPTIONS. There might be other alternatives.

Alex Foti—You can add sites some place else in the right zone. You can swap out sides. You would have the same amount of sites just different location. It is allowed under Special Exceptions.

Dave Scalley—they would have to come across the board with a new site-plan application.

Lisa Trainor—asked if that would go through the Zoning Board? The Special Exception would have to start from 448.A not everything that presently on the property.

Alex—It would go through ZBA which would grant the Special Exception and the Planning Board would approve the Plans.

Mary Sullivan—that’s not what the court said they are just trying to bring us right back to 3 to 4 years ago, a ton money and court.

Dave Scalley—If you come across the board for Special Exceptions you can ask for 200 sites.

Mary Sullivan—I thought the town already approved it as a non-conforming use for the sites we already have.

Alex—the bottom ruling is the Supreme Court appealed that decision, which was in the deed from the previous owner that had given up the non-conforming use. When you come for a special exception, you get it for what you want to do. You have to decide what you want to have.

Mary Sullivan—What we want is what we already have

Alex—Unfortunately what you have doesn’t meet the Zoning Ordinance requirements.

Mary Sullivan—The town has been collecting taxes on all those sites even the tent sites for 16 years.

Alex—we need to follow the ordinance.

Mary Sullivan—we thought everything was fine and anything we did afterwards we would have to Planning.

Alex made a motion to denied the application,

Dave Scalley Second, all in favor say ayi, ayi no opposed

Meeting adjourned 8:32