Selectboard Meeting Minutes

Minutes of 5/16/2023 (Public Hearing & Select Board Meeting)

May 23rd, 2023

Carroll Board of Selectmen
Public Hearing & Select Board Meeting Minutes
May 16, 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: Mike Hogan, Rena Vecchio, Evan Karpf, Brian Mycko, Rebecca Pederson, Imre Szauter, Michael Gooden, Judy Pappas, Chris Pappas, Annette Marquis, Andy Smith, David Scalley, Tadd Bailey, Jeff Duncan, Anita Greer, James Murphy, Greg Hogan, John Warren, Meredith Goldstein.

The meeting was called to order at 5:02 p.m. by Chairperson Marquis.

Pledge of Allegiance.

APPROVAL OF 5/2/2023 SELECT BOARD MINUTES – Selectperson Mills motioned to approve the 5/2/2023 meeting minutes; Selectperson Greer seconded. Discussion – Selectperson Mills stated that he was not in attendance at the meeting. All in favor: Mills-ABSTAIN, Greer-AYE, Marquis-AYE.

PUBLIC HEARING – USE OF PROPERTY AT 104 ROUTE 3 NORTH – Selectperson Mills motioned to open the public hearing; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

Chairperson Marquis read the documents included in packet for the Public Hearing:

• April 17, 2023 Select Board Minutes, including:
o A Memo from the Select Board’s Secretary regarding the request from Alex Foti on 4/11/2023, dated 4/12/2023.
o A Memo from the Select Board’s Secretary regarding the request from Aaron Foti on 4/12/2023, dated 4/12/2023.
o A letter/email from Aaron Foti concerning business operations at the Old Fire Station, dated 4/12/2023.
o A picture received from Aaron Foti of a truck parked inside the bay of the garage at the property.

• April 19, 2023 Select Board Minutes documenting the site visit at 104 Route 3 North.
• Quitclaim Deed for 104 Route 3 North (SCALLEY RT 3 104 LLC).
• Property Card for 104 Route 3 North (206-023-000-000).
• Email correspondence between Selectperson Greer and Alex Foti, dated 4/12/2023.
• Email correspondence between Selectperson Greer and Alexi Foti, dated 5/3/2023.
• An email from Alex Foti, dated 5/3/2023. The Secretary confirmed that this email would be read into the record at the 5/16 Public Hearing.

*** A copy of all the above referenced documents is attachment to these minutes***
Chairperson Marquis read Alex Foti’s 5/3/2023 email into the record, as requested:

Dear Selectboard,

I just received a notice a public hearing regarding the May 16th hearing for Scalley Rt 3 104
LLC, and I need to clarify a few things:

1. This hearing notice names me and Aaron Foti as the requestors. It makes it seem like this is
a personal request, which is now fueling this idea of a "witch hunt" that is being put forth by
Dave Scalley, Building Inspector and Code Enforcement Officer.

First and foremost, I don't recall personally making any requests. What I did say, as Chairman
of the Planning Board, is that I needed the SB to intervene since normally I would be asking
the Building Inspector to intervene, but in this case, it wasn't an option but I need to stress, this
is a request made as Chairman of the Planning Board, and elected official of this Town.

Here are some key facts:
1. The business as I understand it is operating a Warehouse for Storage and Distribution in
zone R-B. Per page 13 of the Zoning Ordinance, this is NOT an allowed use in this zone, and
therefore it is in violation of the Zoning Ordinance, unless and until a Variance is granted by
the Zoning Board of Adjustments.
2. Furthermore, the building previously operated as a public office (fire station). Per section
802 of the Zoning Ordinance Article IV of the Site Plan Regulations of this Town, a Change
of Use permit via Site Plan Review is required to change its use to a Distribution Center, and
there has been no site plan review. I cannot fathom anybody buying an argument that a fire
station is equivalent to a Red Bull distribution center, and either way, that would be for the
Planning Board to decide, not any individual citizen.
2. As Chairman of the Planning Board, and NOT as private citizen, I made a request to the
Selectboard to intervene on the basis of Section 801 of the Zoning Ordinance, which states
that "it shall be the duty of the Board of Selectmen to enforce and administer the provisions of
the Ordinance." My duty was to inform you, as the enforcement body, of a violation that I
could not report to the Code Enforcement Officer due to the obvious conflict of interest. It is
further noted that this duty is also captured by RSA 676:15-18.

In the past, Cease and Desist orders were handled quickly and expeditiously by Dave Scalley
himself upon receiving a report. While you as a board may choose to deviate from how things
have been done, and I'm all in favor of due process even in the face of such an obvious
violation of our Ordinance and Site Plan Regulations, I do need to request that it be made clear
that this is not a request fueled by any personal animosity, but simply a standard request made
as Land Use Officer to the enforcement body of this town, which in this case falls upon the
Selectboard.

2. I also need to point out that I will be out of town on that day, but I do not feel in any way
that my presence is needed, as this is squarely a matter of the Selectboard enforcing the
Zoning Ordinance as it is by statute required to do.

We are all here to serve this Town; let's not make things personal, and let's not demonize those
who are trying to make sure that rules are applied fairly and transparently to all residents.
That's not only my job - it is yours too. It is what we all were elected to do. I hope that the
Selectboard can understand that and take responsibility for its duties, and not try to give the
appearance that they are doing this because of a private citizens' request for action against
another private citizen. This request should be coming first and foremost from the Selectboard,
and not fall squarely on my shoulders.

Thank you for your attention,

Alex
Selectperson Mills explained the rules of the public hearing, pointing out that it is incumbent on the board and the public to ensure that comments are not personal, directed at individuals, and try to limit your time and cross talk, noting everything will go through the Chairperson. Selectperson Mills explained that he would maintain a speakers list and modicum on time management, the Chairperson agreed.

Chairperson Marquis asked David Scalley to speak.

David Scalley stated the following:

On December 13th when he (Scalley) bid on the property it was accepted by the Town at the auction held on Friday, October 29, 2021, it was attached with twelve restrictions.

On December 13, 2021, Scalley Rt 3 104 LLC became the legal owner of the property and very shortly after that DS Contractors moved into the building.

It is public knowledge that on Tuesday, April 11, 2023 at approximately 2:45 p.m. Alex Foti, Planning Board Chair voiced his concern to the Selectmen’s Administrator about the use of the property.

On Wednesday, April 12, 2023 at approximately 1:11 p.m. he (Scalley) received a call on his cell phone from Aaron Foti as the Zoning Board Chair, strongly voicing his opinion with the same exact concerns as Alex Foti, Planning Board Chair had voiced the previous day. Scalley explained that Arron was pretty much demanding that Scalley, as the Building Inspector, to do things that were above his authority on this property.

Scalley expressed that this is now happening sixteen months after he purchased the property, which he finds odd and confusing.

Scalley cited his research in the Zoning Ordinance:

• ‘Page 10, Section 403.1 Uses: A person shall not use any lot in any zoning district in the town of Carroll except as hereinafter specifically allowed. Those uses designated with a “P” are permitted and allowed by right.’

• ‘Page 6, Definition of Permitted Use: Permitted uses are those uses listed which are allowed by right, without a Special Exception from the Zoning Board of Adjustment or a Conditional Use Permit from the Planning Board, providing the standards established by this Ordinance are met.’

Scalley explained that he believes they are met and referenced Page 12, Line 16, indicating ‘Parking facilities, including serving off-site uses.’ Scalley noted that it is a parking facility and is and was previously used for. Scalley also noted that DS Contractors had trucks and equipment inside the property, explaining that his men met there and took the trucks and/or equipment to go to work. Scalley highlighted that for thirteen months he was doing the same use as is what is going on now, just with a different company. Scalley explained that is still being used for the same purpose serving off-site uses since December of 2021. Scalley explained that he is not sure why almost a year and a half later, all of the sudden, this has become a concern, as the building is still currently being used the same way it was when it was purchased. Scalley questioned that if someone had a concern for how the property was being used, why didn’t this come up when it was originally occupied in December of 2021. Scalley stated that this property is not being used as a typical business, the business is using the property as a parking facility. Scalley also clarified that the property was never sold to Scalley Rt 3 104 LLC as a fire station or that use, noting that when he purchased the property, on the tax card, it was changed to commercial general use, which the property was previously a municipality permanent use.

Public comment:

Evan Karpf explained that he sat on the Planning Board for eight years and attended every government educational program given by the state and noted the definition of a change of use in the zoning ordinance, further noting that you cannot grandfather someone in. Karpf referenced state RSA 674:54 ‘In this section, "governmental use" means a use, construction, or development of land owned or occupied, or proposed to be owned or occupied, by the state, university system, the community college system of New Hampshire, or by a county, town, city, school district, or village district, or any of their agents, for any public purpose which is statutorily or traditionally governmental in nature.’ Karpf further expressed that is what the building was, noting that it is no longer that anymore, as he does not see fire trucks parked there. Karpf explained that he sees a building that is being used for a totally different purpose that falls under the Town’s site plan review. Karpf explained that just because something went on potentially illegally, it doesn’t all of the sudden make it ok. Karpf reiterated grandfathering is a misinterpretation by many people. Karpf cited from the zoning ordinance and site plan review that throughout the documents is states ‘shall’ and explained that in a legal sense it means ‘you have to do’ and further explained that if it is something that is quasi and you are not sure, the word ‘may’ is used. Karpf stated that in the Town’s ordinance it stated ‘the regulations shall be considered to be part of each approved site plan’. Karpf further stated that there is not site plan approved, no application that is known of, and there is no hardship that is known of. Karpf continued referencing excerpts: ‘these regulations shall be enforced by the Select Board’, ‘the Select Board shall undertake such enforcement in a manner similar to that of enforcing the zoning ordinance included in the delegation, prosecution, a specific enforcement actions to such other qualified individuals in order to be delegated to someone else to enforce it. Karpf cited #28 under uses of the Town’s zoning ordinance and expressed that this is what he believes is going on at the property, noting it is a prohibitive use under R-B zone, further noting there is no interpretation and is simple and obvious. Karpf went on to explain his personal experience doing several site plan reviews, noting he was told several times by the code enforcement officer ‘don’t do this, until you do this’, and expressed that this is the same situation. Karpf reiterated that our regulations are very specific of ‘shall’ be done and the regulations define a change of use. Karpf further expressed that the information he provided is from the Town’s site plan review and what is in the state RSA, which is very specific. Karpf referenced state RSA 674:43 and stated that it explains the delegation of the planning board and their job to find things that may require site plan review or subdivision and things like that. Karpf highlighted that at the last Planning Board meeting, five of the members all agreed that this is a change of use, which is their job, their training, and their role, further noting the Select Board has their role.

Selectperson Mills asked Evan Karpf to repeat the RSA that he referenced. Karpf responded RSA 674:54, noting it defines that building as a public town building, which it no longer is and there are no fire trucks there. Karpf stressed that just because something went on prior to, doesn’t make it ok and expressed that there is no grandfathering.

Selectperson Greer inquired if his understanding of what Karpf explained is accurate. Selectperson Greer confirmed that Karpf said it was a municipal building first, then Dave Scalley bought it and now it is not a municipal building. Selectperson Greer expressed that he doesn’t see the change of use. Karpf explained that the definition states ‘governmental use’, ‘construction’, etc. and voiced his opinion that it is a change of use. Selectperson Greer explained that he is trying to clarify this and asked Karpf if he believes Scalley bought a municipal building for that purpose. Karpf responded that Scalley bought a municipal building, but as for the purpose he cannot answer that. Karpf further referenced his own personal experience with site plans on his own properties because of the change in use. Karpf also referenced his own personal experience with a cease-and-desist from 2016.

Rena Vecchio explained that she believes this is a change of use, as it was fire department. Vecchio understands it was purchased, but she does not believe it being changed to commercial bears any weight on the area that it is in. Vecchio stated that it is in the Residential-Business zone, it has gone from a fire department, and Scalley has used the building to store appliances, allowed the 250th Committee to set up at the property/building and no one said anything. Vecchio explained that when the property went up for sale, a couple of the Historical Society members, her being one, went and looked at the property and wanted the Town to donate the property to the Historical Society, but she was told several times that it could never be done because of the street and doors coming from the fire department were not what they should be and it was too much of a danger. Vecchio reiterated that she believes it’s a change of use and believes that if the Board votes on this, they are putting the Planning Board in a lot of bad places and setting a precedent.

Selectperson Mills requested that Vecchio elaborate, noting she only provided an opinion, and he would like to know exactly how it would impact the Planning Board. Vecchio responded that they feel that it is a change in use and by the Select Board saying ‘no it isn’t’. Selectperson Mills replied that the Select Board has not made a decision and the only thing that has been done is the Board is doing their due diligence. Discussion regarding being specific vs. general comment. Vecchio cited page 13 of the zoning ordinance, #22 (uses): ‘Retail businesses and services including storage and distribution related thereto, exclusive of junkyards and gasoline sales, with drive-through services.’ Vecchio pointed out that in the R-B zone it is only allowed by a special exception and a change of use.

Chairperson Marquis explained that when Scalley purchased the property it ceased being a municipality and became commercial.

Selectperson Mills explained that he is hearing assumptions, opinions, speculation etc. but nothing definitive as to what is going on at the property, further noting the need to clarify.

Vecchio expressed her right to be heard, as this is a public hearing.

Chairperson Marquis expressed the need to see where this belongs in the zoning ordinance.

Brian Mycko explained that in past he has served on the Planning Board for several years and agrees that the Chair is correct in asking the Select Board to issue a cease-and-desist at 104 Route 3 North, owned by Scalley Rt 3 104 LLC. Myko explained that the property did not have site plan done when it changed use from a public safety fire house to a warehouse, which are two different uses. Mycko further explained that the property needs a site plan according to our RSA’s, because the property is going from non-use to a use, and stressed that is why the site plan review process is in place, noting many questions need to be answered during the process. Mycko referenced the following question that would be asked during the process, like ‘is the property zoned correctly’. Mycko stated that that from everything he found, be believes the property is not zoned for the use, and the Planning Board would have denied the application and sent the applicant to the ZBA for a variance. Mycko further stated that parking, lighting, snow removal, and life safety are only a few of the requirements that have to be met for a site plan review and highlighted that there a lot more requirements that need to be met, and the process is extensive. Mycko stressed that none of this was completed for the property at 104 Route 3 North. Mycko expressed that he believes Mr. Scalley decided to do what he wanted and go above the law, even though he is the Code Enforcement Officer, noting Scalley knows these processes, as Scalley has served on the Select Board, Planning Board and Zoning Board, and is well aware of the requirements and is blatantly violating code. Mycko further questioned any and all decisions that Scalley has made as the Code Enforcement Officer in the past and/or future and the ethics.

Selectperson Mills pointed out that they are dealing with the current issue, nothing from past. Mycko reiterated his question and stressed that it’s not his opinion, it is legal, because if Scalley is allowed to change his use without going to the Planning Board, what is the effect on the Planning Board, because then no one would need a site plan review. Mycko further expressed that the property changed use and stressed the pure definition from the Planning Board and ordinances. Mycko further agreed with Vecchio’s previous comments, as long time Planning Board member, and what the current Planning Board has stated, stressing again that the property has changed use, as it has gone from a non-defined use because it was previously a fire station to a commercial property and now has no defined use. Mycko stressed the fact that that when you start using the property for something, the person has to go to the Planning Board for review, as it is in the requirements.

Evan Karpf referenced the picture that was provided, as to what the property is being used for. Karpf questioned why they were even here. Karpf explained that every applicant has recourse, noting they can request waivers from applications, site plan review, claim hardship, etc. Karpf further stressed that there is a process to follow.

Chairperson Marquis explained that this is not a normal situation, noting that if this was a normal situation, Scalley would be doing the process as the Code Enforcement Officer. Chairperson Marquis stated that this has not happened before and the Board had to do this a little differently because the Board is not as educated in Zoning Ordinances, etc., and the Board is working on it. Karpf replied that he respects that, noting that it is not easy, and further explained the process as he understands it. Karpf further questioned the reasoning for the process the Select Board chose. Chairperson Marquis explained that Scalley is the involved party and as the Code Enforcement Officer, he would normally be the person to determine if a cease-and-desist needs to be issued, and in this instance he cannot, so the Select Board needs to determine if a cease-and-desist needs to be issued. Karpf pointed out that there are mechanisms in the law to allow an individual to question, request, review, or other Boards to make a decision as to how it is to proceed or not.

Mike Hogan expressed that he has been on the Planning Board for several years in the past. Hogan pointed out that the Town has always been trying to bring businesses into Town. Hogan explained that whether there was a mistake or not, there are requests that can be made for waivers, hardships, etc. Hogan explained that a business was brought into this Town, and a cease-and-desist on a business that is parking and moving trucks in and out of a building, right or wrong, he believes as a Town, there are workers there who are maybe looking at moving into Town and expanding this Town’s business. Hogan stressed that rather than dragging this out through the courts and costing the Town legal fees, the Town should look at this logically. Hogan further reiterated the use of waivers and a hardship and to not base a decision on opinions. Hogan further stressed that there should be a fix for this, rather than a court case.

David Scalley referenced the photo of the truck inside the bay of the building and further inquired if anyone had pictures or seen DS Contractor equipment and trucks in the bays that were there the previous thirteen months? Scalley asked if anyone had pictures of Central Paving parking their equipment at the property when the roads were being paved for months last year? Scalley asked why this is any different, if there is a different truck parked inside the bay? Scalley referenced 403.1, #16 in the zoning ordinance, noting it is designated with a ‘P’ (permitted and allowed use by right). Scalley further noted that because it is a permitted use, it does not need to go for a special exception or to zoning. Scalley stated that if he bought it as a fire station, which he didn’t, noting the Town sold the building in October and closed on it December 13th. Scalley reiterated that it was not a fire station when he purchased the property. Scalley further noted that he found a use that fits in there and put it in there, noting that it says that he does not have to go to the Planning Board and/or the Zoning Board because it is a permitted use.

Brian Mycko stated that anyone who goes by the property, knows it is a warehouse, noting that when the doors are open there are stacks and stacks of product and trucks are parked inside with workers loading and unloading the trucks. Mycko also referenced an instance where there was a box truck there loaded full and parked out to the street, loading and unloading. Mycko stressed that it is a warehouse and the business is not just parking vehicles. Mycko reiterated that this needs to go the Planning Board and the need to follow the regulations and process, and not just let things happen.

Chairperson Marquis confirmed that the Select Board has done a site visit and they have seen what is going on in there.

Mycko explained that it’s been noted that tonight it’s an opinion, that it’s a warehouse, however Mycko stressed that visually it is a warehouse. Chairperson Marquis noted that people are making opinions and the Select Board is going to make the decision tonight, as to what the Board feels the property is. Mycko questioned why this is not going to the Planning Board, where he believes it should go, and let the Planning Board do their due diligence and go through the process. Mycko stated that this is his opinion and what should happen, further reiterating that this should go through the process with the Planning Board.

Andy Smith stated that he does sit on the Zoning Board, but tonight he is not here as a member, noting that there has been nothing presented to them on this particular situation. Smith echoed what he has heard tonight, noting there is simple process in the Town to keep things consistent and stressed the importance for all new businesses to come before the Planning Board. Smith also stated that he believes there is plenty of room for new businesses in this Town. Smith highlighted a provision in the site plan review that allows the applicant to come to the Planning Board to discuss a proposal in a conceptual form, further noting it is encouraged. Smith expressed that at that time, it can be discussed as to whether site plan review is needed. Smith encouraged the Select Board to follow the regulations and do a site plan review, whether or not it is a distribution facility or a retail with distribution attached, noting that he’s not sure he knows enough about the facts to make a decision and that it is for the appropriate board to determine if the use in the building meets a retail with distribution attached or is it a wholesale distribution facility that needs a variance. Smith reiterated that he does not know the facts and encouraged the Select Board to go through the process. Smith stated that he does not believe any applicant should be able to say that they do not need to come to a board because they are exempt from site plan review, noting that it is not up to them to determine, the person should go to the Planning Board and ask if they need site plan review and at that point, the Planning Board would have the power to tell the person if they are exempt with a reason.

Selectperson Mills explained that he has heard the term ‘site plan review’ repeatedly come up tonight and emphasized that tonight’s hearing is based on whether or not to issue a cease-and-desist order, reminding the public of the topic. Selectperson Mills acknowledged the free speech, but reminded the public that tonight, is to hear why the Board should or should not issue a cease-and-desist order. Selectperson Mills explained that the Select Board will take all the information that is being offered tonight, as well as their own deliberations and individual homework, and then deliberate and decide if the Select Board does or does not issue a cease-and-desist order. Selectperson Mills expressed that this step needs to be taken care of and then after that, the rest will unfold. Selectperson Mills reiterated Chairperson Marquis’ previous comment, that this is not a common event or issue. Andy Smith stated that he appreciates that and the decision Mills has in front of him, but he cannot take those in isolation. Smith explained that a cease-and-desist is not issued for no reason; a cease-and-desist would be issued because the laws of the Town have not been followed. Evan Karpf stated that he agreed with the prior statements.

Selectperson Greer stated that he heard Andy Smith earlier say that they (the ZBA) didn’t vote on anything. Smith confirmed that he has not been to a ZBA meeting where this was discussed and indicated that he was absent from the last ZBA meeting, however this was not on the agenda. Selectperson Greer asked if other members voted on this. Smith stated not that he is aware of. Selectperson Greer asked Anita Greer, also a ZBA member, if she voted on this. Anita Greer replied no, and explained that to her knowledge they have not discussed it. Selectperson Greer referenced the letter received from Aaron Foti asking the Select Board to issue a cease-and-desist and inquired, how can Aaron issue that order without the ZBA Board voting on it. Smith responded that he is not here to defend, and he is not here as a member of the ZBA, but reiterated that the ZBA has not heard this.

Chairperson Marquis explained that this is a different circumstance and the reason this is open to the public is because the Board wants to be open about it and reiterated that the Board is going to make a decision tonight as to what they feel should be done. Chairperson Marquis further reminded that the Board is gathering information from the public, going to deliberate, and then make a decision.

Evan Karpf explained that he feels it is important to repeat that an applicant has the right to request waivers or not be held to that. Karpf explained that he likes to read law and pointed out that with businesses coming into town, that people can’t lose sight, citing purpose under Article II of the Site Plan regulations, reading the first paragraph:

The purpose of the Site Plan review procedure is to protect the public health, safety and welfare; to protect property values; to prevent premature and uncoordinated development of land without the adequate provision of public services and facilities; to avoid unnecessary and adverse impacts on neighboring property and uses; and to guide the character of development’.

Karpf expressed that the way this is changed is through our master plan, noting there are always options to make changes of anything in this town. Karpf reiterated that is why there is site plan review and there are options for anyone, including the Town as a whole.

Brian Myko suggested looking at this as a general issue and take Scalley out of it, noting if another business had come into Town and started working out of the building without going to Site Plan review, Scalley (as the Code Enforcement Officer) would issue a cease-and-desist and tell the person to go for Site Plan review and follow the process. Mycko reiterated the need to disconnect the person from the process, noting this did not go through the process and a cease-and-desist should be issued.

Anita Greer inquired if a site plan is needed if there have been no changes made to the building or the grounds. Brian Mycko responded yes and explained that every use has different requirements.

Selectperson Mills explained that he keeps hearing ‘Site Plan’ and then read Article IV Review Procedure, Section 4.01 General Procedure-When Site Plan Review is Required from the Site Plan Review Regulations:

Whenever any development of a site associated with a nonresidential use or multifamily dwelling is proposed, before any construction, land clearing or building development is begun, before any permit for the erection of any building or authorization for development on such site shall be granted, and before any site plan may be filed with the Coos County Registry of Deeds, the owner or his authorized agent shall apply for and secure approval of such proposed site development in accordance with the procedure contained herein.

Evan Karpf explained that the Planning Board would determine if this would go to Site Plan Review, not the Select Board. Karpf referenced the last paragraph in Article II of the Site Plan regulations:


Site Plan Review is required for new nonresidential or multifamily development, redevelopment,
or expansion (including additional use or additional dwelling unit); or for a change from one
such use to another; whether or not such development includes a subdivision or re-subdivision of
the site; and shall include manufactured home parks.

Karpf explained that it is about the use, not the construction, but noted that it is part of it. Selectperson Mills explained that he was only answering the question previously asked. Selectperson Mills reiterated that tonight’s purpose is whether to issue a cease-and desist or not.

Evan Karpf explained that he believes the change in use needs to go to the Planning Board as the reason why the Board has to issue the cease-and-desist, so it follows the procedures that everyone else is required to follow. Karpf explained that this is the cause and effect. Andy Smith agreed with Evan Karpf. Smith reiterated that a Site Plan review is required with a change in use. Rena Vecchio also agreed.

Jeff Duncan explained that he believes the Select Board has a document called a Certificate of Occupancy, which is filled out prior to someone moving into a building. Duncan asked the Board if a Certificate of Occupancy has been done; the Secretary responded that she had not seen one. Duncan explained that this probably should have been done when the original usage was done. Duncan confirmed that the Certificate of Occupancy is on the Town’s website, with the uses, noting this document is the Select Board’s, not any of the other Board’s. Duncan suggested checking the proper procedures being done at the Select Board’s level. Selectperson Mills explained that in past practice it would go to the Code Enforcement Officer. Duncan explained that it would then get signed off on by the Select Board before a person could occupy the building. Brian Mycko reminded the Select Board that they are the Code Enforcement Officers for the Town. The Board acknowledged. Andy Smith pointed out that the form on the website is for dwelling units, not commercial. Duncan explained that is also used for restaurants, etc., noting that it means, occupy and not just sleep there. Duncan further referenced the definition at the bottom of the form, noting it doesn’t specifically mean just residential.

Mike Hogan asked the Board if the Certificate of Occupancy had been initiated and filled out correctly, the Board would have identified the building’s use. Mike Hogan suggested looking at the Certificate of Occupancy.

There was no further comment from the public.

At 6:01 p.m. Selectperson Mills motioned to close the public hearing; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

The Board thanked the public for their input and for attending tonight.

Selectperson Mills explained that he would be making a motion in order to initiate deliberations, noting that his motion is not a decision, and reminded that it is only being made to initiate deliberation, and then further explained the process of the motion being retracted after deliberating and re-motion if needed.

Selectperson Mills motioned to not issue a cease-and-desist order; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

The Board deliberated.

• Who owns the property? – The record reflects the Town sold the property to Scalley Rt 3 104 LLC.
• How is the property being used currently? – Selectperson Greer believes it’s being used as a distribution center. Chairperson Marquis explained that product is going in and out and being distributed to stores. Both Chairperson Marquis and Selectperson Greer agreed. Selectperson Mills explained that the Board did a site visit, noting that it is fair to say there are vehicles and product at the property, noting that it was a snapshot at the time, but it is not a full disclosure of the actual use of the building. Selectperson Mills elaborated on the need to answer the ‘why’ and the ‘what’ in his opinion, noting reviewing the record, the ordinances, and the regulations. Selectperson Mills explained that in his opinion Site Plan review and the change in use, is not applicable in for this property under these circumstances. Selectperson Mills explained that he reviewed the ordinances and focused on the exception of what the property could possibly operate under, citing uses: #21-Retail businesses and services including storage and distribution related thereto, exclusive of junkyards and gasoline sales, without drive-through services; #31-Warehouses for storage and distribution; and #16-Parking facilities, including serving off-site uses. Selectperson Mills indicated that he did not have enough information from the one visit to know if it is a warehouse for storage distribution or a transit stop; further asking the Board to get clarification from the owner. Selectperson Mills noted that if the property is a warehouse with distribution, it will impact and if it is not, the Board needs a better clarification as to what the building is. Selectperson Mills elaborated on the parking facility aspect. Selectperson Mills also wanted to disclose that he and Robert Gauthier (Select Board members) at the time, were involved with the sale of the property, and Mills noted he was the one that a lot of the research on the area, the layout, the limitations of the parking, recognizing that it was fire station, and access/movement. Selectperson Mills explained that once the property went forward as a sale, as a commercial building, it was no longer a fire station, noting that there would be limitations as to what would be available for uses based on the access. Selectperson Mills asked the Board to consider the three items mentioned in the deliberations. Selectperson Mills highlighted to the Board that the private property rights are also a consideration of the Board, further noting that it is important for the government to be able to articulate the why behind the what; the ‘why’ is the defense and protection of the zoning ordinances’ the ‘what’ would be whether to issue a cease-and-desist order.

Selectperson Greer explained that he has looked over the Site Plan regarding the change of use and stated that he does not see that it needs a change of use, noting Scalley bought a building that was not a fire station, he bought a building for commercial purposes. Selectperson Greer explained that Scalley ran his personal business, DS Contractors, through there, parking trucks and equipment as well as the trucks/equipment coming and going, also highlighting Central Paving did the same thing, and the Town stored things there as well. Selectperson Greer reiterated that he does not believe there is a change of use, and sees this as a different business doing the same thing. Selectperson Greer believes that the property qualifies as #21 in the zoning ordinance uses (Retail businesses and services including storage and distribution related thereto, exclusive of junkyards and gasoline sales, without drive-through services). Selectperson Greer then cited the definition of a retail business from the zoning ordinance: Includes shop and store for the sale of retail goods, personal service shop and department store and shall exclude warehouses. Selectperson Greer highlighted the fact that the definition only excludes warehouses and not distribution centers; Greer reiterated that he believes the property is being used as a distribution facility, noting it is not against the ordinance from what he can see and the only thing coming and going is the vendor.

• Does the property’s deed impose any restrictions on the property? – There are twelve deed restrictions attached to the property when Scalley purchased: pawn shops; junkyards; sale, rental and repair of motor vehicles, recreational vehicles, and off-highway recreational vehicles; raising and keeping of animals and livestock; agriculture; excavations; kennels; storage facilities; medical marijuana dispensary; sexually oriented business; materials recycling or processing; and wholesale businesses, including a discount house or bulk sales outlet.

• Is the use of the property permissible under the deed restrictions? – Selectperson Mills and Chairperson Marquis agreed that they did not believe there were any deed restrictions that were being infringed upon. Selectperson Greer explained that he does not see a distribution center as a restriction on the deed or against the Town’s zoning ordinance requirements.

• What zoning district is the property in? – Residential-Business (R-B).

• Is the use of the property permitted in the district? – Chairperson Marquis explained that if it was just the trucks/equipment paring there, he believes it would be ‘parking’, however with the vehicles that are parked there now, they are doing business out of the building. Chairperson Marquis stated that the ‘parking’ aspect is out of the question for him. Chairperson Marquis expressed the need for the Board to look closely at the uses in the zoning ordinance: #21-Retail businesses and services including storage and distribution related thereto, exclusive of junkyards and gasoline sales, without drive-through services; and #31-Warehouses for storage and distribution. Chairperson Marquis explained that he believes that a warehouse can be a garage, noting if items are stored in the building and taken and sent out it would be a warehouse distribution center, and this is what he believes is happening at the property, noting the vendor at the property has product inside that is being stored and from what he understands the product is loaded onto the trucks daily for distribution to stores, and when done at the end of the day the trucks return and unload the product. Chairperson Marquis reiterated that he believes that the property is warehouse and distribution. Chairperson Marquis elaborated on his research and highlighted the definitions in the zoning ordinance, reading: Retail Business-Includes shop and store for the sale of retail goods, personal service shop and department store and shall exclude warehouses; Chairperson Marquis stated that there is no store there, noting it is strictly warehouse and distribution and that is not acceptable there. Discussion regarding retail business definition, noting that the vendor does not sell product out of the building. Discussion regarding the number of cases/pallets of product inside the building during the site visit. Chairperson Marquis noted that it does not have to be a lot of products to be a warehouse, highlighting that if stuff is stored there and then shipped out it is a warehouse. Discussion regarding the definition of warehouse in the zoning ordinance and in the dictionary. Continued discussion regarding the differentiation between zoning use #16, #21, and #31.

Selectperson Mills expressed the need for the Board’s obligation to protect the Town’s zoning ordinances.

Selectperson Greer voiced his opinion about the term ‘service’, noting that the vendor is providing a service. Discussion regarding the term and that it is in regards to if it is a retail business.

The Board asked for a short recess at 6:37 p.m. to confer with counsel in private; returning at 6:52 p.m.

Chairperson Marquis acknowledged that the public portion of the hearing was closed, however the Board would like to ask David Scalley a question.

Chairperson Marquis asked David Scalley: ‘Do you have an occupancy permit, because we do not see one on record?’. Scalley responded ‘no we don’t’.

The Board confirmed, from previous discussions, that they all agreed the deed restrictions didn’t affect anything.

The Board confirmed from previous discussions, that the use of the property is permissible under the deed restrictions.

Discussion regarding the use of the property in the district from previous discussions. Selectperson Mills explained that with all of the information that was discussed tonight from the public, research, discussions, and current understanding of the ordinances; Selectperson Mills motioned to withdraw his previous motion and the second; Selectperson Greer seconded. Discussion – Selectperson Mills reiterated that he was withdrawing his previous motion and the second. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

Discussion regarding the Board needing to act with the full spectrum of information they have.

Selectperson Mills motioned that the Select Board opt to issue a cease-and-desist order; Selectperson Greer seconded. Discussion – Selectperson Mills explained that it is important to point out that the information brought forth by the Fire Chief regarding the certificate of occupancy. Selectperson Mills read 802.6 of the Zoning Ordinance: A Certificate of Occupancy will be required before renting, leasing, or using building for which Zoning & Building Permit was granted. A Certificate of Occupancy shall be granted only if: a.) All Zoning and Town Ordinances were adhered to. b.) All Zoning & Building Permit restrictions or requirements were complied with. Selectperson Mills explained that the Board is in the situation where the questions that have been raised about the current use of the building, the non-existent certificate of occupancy, the ordinances as they are written, deliberated upon, and interpreted, as well as information from the public, noticing that the Board’s hands are tied on the decision. Selectperson Greer explained that they are talking about shutting someone’s business down and he takes that very seriously; the Board fully agreed. Selectperson Greer further explained that this a local business and highlighted that he’s been told that it’s hard to do business in this town and he does not want it to be that way. Selectperson Greer stated that the certificate of occupancy is a big deal. Chairperson Marquis agrees, noting the totality of the circumstances from what has been learned and spoken. Selectperson Mills elaborated on Selectperson Greer’s point, concerning an enterprise with regulatory requirements, noting it is incumbent on the Town, through its elected officials, boards, departments, etc. that we apply the regulations and the ordinances, and do our due diligence, but also protect what is established. Selectperson Mills highlighted that the Town is of very limited resources and something like a certificate of occupancy make have slipped through the cracks, however it does not change the facts that it is a requirement and in the Town’s ordinances. Selectperson Mills explained that the Town would be best served, if they were to have the resources available to the different Boards and agencies so it can be best effectively serve both the business owners and the residents, as well as the people that do the work for the Town. Chairperson Marquis explained that he also wanted people to realize that he does not like the idea of shutting anyone’s business down, noting the need to follow the rules. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

Selectperson Mills motioned to close the deliberative session regarding the cease-and-desist order; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

APPROVAL OF MANIFESTS – The Board members confirmed that they had signed the manifests.
Selectperson Mills asked that item 12 be tabled until a later date, noting that the departments should work through their process first. The Chair agreed.

EMPLOYEE MANUAL (BAILEY) – The Police Chief explained that a couple years ago there were changes to the employee manual and at the time it would be a living document and the employees could come with ideas and changes. The Police Chief explained that there have been no employees that have come forward with any changes and his intention tonight was to approach the Board and suggest a member from each department present ideas and then formally present them to the Board. Selectperson Mills confirmed with the Police Chief that his request is to form a committee comprised of the various departments and present a proposal to the Select Board for changes to the employee manual. Bailey confirmed that he had not asked the other departments yet, however he has spoken to several other employees from different departments and they all have varying ideas of what they would like to see for potential changes. The Police Chief stated that every employee is interested in it to some extent, but wanted to approach the Board first. The Board agreed to Bailey’s request to get ideas from the employees and then formally present them to the Board.

RECREATION UPDATE (SUMMER KICK-OFF PARTY & FIELD DAY EVENT) – The Secretary explained that the recreation committee is going to have a “Summer Kick-Off” party on June 24th with fireworks as well a “Field Day” event on August 12th. ***A Copy of both flyers are attached to these minutes****

The Secretary also informed the Board that the Recreation Director indicated that there would be no summer camp this year because of staffing; they are however going to try to plan a few trips.

INTENT TO CUT (BAYROOT; 407-029-000-000) – The Board reviewed the intent to cut. Selectperson Mills made a motion to approve and sign the intent to cut for Bayroot; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

SUPPLEMENTAL WATER WARRANT (FURNESS, RIVERSIDE TRUST, FUR-EVER K9 LLC) – The Board reviewed the supplemental water warrant, totaling $130.00. Selectperson Mills made a motion to approve and sign the supplemental water warrant; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

BUILDING PERMIT EXTENSION REQUEST (262 PAQUETTE DR.) – David Scalley, Building Inspector, explained that the resident is asking for a third extension to their permit, noting they have already had two extensions previously, one of which being for Covid. Scalley explained that their reasoning is because they are trying to build their home without, however they do not know how long it would take to finish the house. Scalley further noted that they want to get another year extension on the permit. Scalley explained that he does not have the authority to approve the extension, but told the home owners he would ask the Select Board, noting it was was done for the last extension. Selectperson Mills made a motion to allow a one-year extension to the building permit as briefed by the Building Inspector; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

MEDIA CONTACT REQUEST FOR CALENDONIAN RECORD – The Secretary explained that the Caledonian Record reached out to find out which member(s) of the Select Board would like to serve as the media contact to answer questions outside of meetings as needed. Discussion amongst the Board regarding individual members representing the Board. Selectperson Greer volunteered to be the media contact with the notion of discretion and would bring the questions to the Board and then respond to the Caledonian after deliberating with the Board as a whole and reporting only what is agreed upon.
SAFETY CONCERN (GREER) – Selectperson Mills requested that this item be tabled.

FOLLOW UP

LAND USE SECRETARY POSITION – The Secretary explained there is currently no Land Use Secretary. Discussion regarding advertising and the cost. Discussion regarding advertising in the newspaper. Brief discussion regarding the position and duties. Brief discussion regarding the position being advertised as part-time and possibly making it a full-time position in the future. Discussion regarding exit interviews. Selectperson Mills made a motion for the secretary to advertise until the Select Board determines otherwise; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

BUILDING INSPECTOR – The Board agreed that this would be discussed in non-public.

FUNDRAISING POLICY AND FORM (TREASURER) – The Treasurer explained that if the policy was adopted tonight with the form, she is requesting that it be retroactive for the current fundraisers occurring, so there is a file for history, noting the jar for the 250th that is at a local store. Selectperson Mills made a motion to adopt the fundraising policy and form; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

INTEREST BEARING ACCOUNT (TREASURER) – The Treasurer explained that before this could happen the Board would need to have a public hearing to move the $20,000 from the Recreation Revolving account to the general fund.

NHMA CLASS (TREASURER) – The Treasurer explained the options brought forth by NHMA, noting the workshop could be done via Zoom or in person. Discussion regarding the benefits of Zoom and/or in-person. The consensus was to have the workshop in-person, but see if the workshop could also be Zoomed for those not able to attend, as well as recorded. Brief discussion regarding how to pay for the workshop, noting there are training lines in each department. Selectperson Mills made a motion to act upon setting up the municipal finance training; Selectperson Greer seconded. Discussion – Selectperson Mills stressed the desire to try to get a recording of the workshop and would defer to the Treasurer to set up. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

GARDEN CLUB FUNDRAISER REQUEST – Anita Greer asked for permission for the Garden Club to hold a fundraiser after the Memorial Day Parade, noting the request was made at the last meeting. Anita Greer also confirmed that she would fill out a fundraising form as well. Selectperson Mills made a motion allow the Garden Club to have fundraiser after the Memorial Day Parade; Selectperson Greer seconded. Discussion – none. All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

OTHER

David Scalley explained to the Board that as the Building Inspector, there is a project occurring out in Bretton Woods where they are doing exterior work at the condos, normally an individual pulls their permit, however because these are condos, in the past we normally do the fee as a whole for exterior work on multiple units, but make an individual building permit for each unit so it is accounted for on the tax cards, so the assessors would have a value on each property. Scalley explained that he was just asking for the Board’s approval to continue doing so, since the Board is new. The Board all agreed to continue.

David Scalley asked the Board that if there is a business operating in Town, are the Building Inspector and the Fire Chief supposed to issue a cease-and-desist if the business does not have a certificate of occupancy on file. Scalley reiterated that there is a business in Town that pulled a permit that has not had a certificate of occupancy signed off on because of some reasons, noting they are conducting business at their place of business, further inquiring if a cease-and-desist should be issued.

Selectperson Mills explained that it would be appropriate for the Board to review the requirements of a certificate of occupancy. Selectperson Mills read 802.6 of the Zoning Ordinance: A Certificate of Occupancy will be required before renting, leasing, or using building for which Zoning & Building Permit was granted. A Certificate of Occupancy shall be granted only if: a.) All Zoning and Town Ordinances were adhered to. b.) All Zoning & Building Permit restrictions or requirements were complied with.

Selectperson Mills stressed that it needs to comply before renting, leasing, or using building for which Zoning & Building Permit was granted. The Board agreed, barring any other input and consideration. Discussion regarding the logistics. Mike Hogan suggested re-writing the ordinances or getting guidance on particular topics. The Board would like to get more information. David Scalley asked Selectperson Mills to re-read the requirements of the certificate of occupancy.

David Scalley explained this his interpretation of a certificate of occupancy is for a building permit that is pulled by the homeowner/business. Fire Chief Duncan explained that he does not necessarily agree with Scalley’s interpretation. Chief Duncan cited the last paragraph of the certificate of occupancy application, noting it defines exactly what it is. Selectperson Mills read:

It shall be unlawful to use or permit use of any building or premises or part thereof, hereafter, created, erected, changed, converted, moved, altered or enlarged, wholly or partly in its use or structure, until a Certificate of Occupancy shall have been issued therefore by the Building Inspector or Board of Selectmen.

Fire Chief Duncan explained that the way he reads it, it does not need a building permit, it just needs to be any changes or alterations. Fire Chief Duncan confirmed that he was not addressing Site Plan review, he was addressing the certificate of occupancy. Scalley expressed that he would like to further discuss in non-public legal with Board and Fire Chief Duncan, the Board agreed.

Selectperson Mills suggested going forward on scheduling Select Board meetings, that the Board consider scheduling when all the member are available, since the Board is new, noting meetings may fall on different days based on availability. The Board agreed.

Fire Chief Duncan announced that the Memorial Day Parade would be on Monday, May 29th, noting there would also be a barbeque afterwards at the fire station and the Garden Club would be selling flowers.

The Board announced their next meeting would be on Tuesday, May 23, 2023 at 5:00 p.m.

At 8:01 p.m., Selectperson Mills motioned to go into non-public session per RSA 91-A:3 II. The motion was seconded by Selectperson Greer and polled; All in favor: Mills-AYE, Greer-AYE, Marquis-AYE.

At 9:09 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.

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 9:09 p.m.

ATTACHMENTS TO 5/16/2023 MINUTES:

5-16-2023 Public Hearing Document Packet

Recreation Flyers