Planning Board minutes, Oct 13, 2011
Legal opinion follows
Chairman Scott Badger called the meeting to order at 7:05 P.M.
ATTENDING:
Members - Ray Abbott, Scott Badger, Frank Benesh, Bea Davis, Betsey Harding, Sarah Kimball and David Treadwell. Alternates; George Howard, Darren Levitt and Larry Siebert. Michael Mallett contacted the chairman to say that he would not be able to attend.
Members of the public attending - Gino Funicella, Jerry Dougherty III, Jerry Dougherty IV, Holly Lewis, and Martha Benesh
The minutes of the September 8th meeting were reviewed.
Betsey Harding made a motion to accept the minutes; David Treadwell seconded the motion and all voted favorably.
PUBLIC COMMENTS:
None
BUILDING PERMIT DISCUSSION:
Copies of a letter to Scott Badger, Chairman of the Planning Board, from the new town attorney, Peter Malia, Jr., were distributed. Scott had asked for an opinion on three building permit issues. An opinion was given on the first issue of how to formulate a two-part vote. The second issue involved Section 16.2.1 of the Jackson Zoning Ordinance which states, “Alterations to an existing building or structure within existing footprint that do not exceed $10,000.00 in estimated value shall not require a permit.” Attorney Malia’s opinion is that, “the New Hampshire Building Code, RSA 155-A:1, et seq. does not set forth a monetary threshold for an application for a building permit. Therefore, it could be argued that by exempting construction projects of less than $10,000.00 from the building
permit process, Jackson has enacted a municipal ordinance that is less stringent than the requirements of the State Building Code which is not permitted.” The third issue was; to enforce a building code, including the State Building Code, does a municipality have to first adopt it by vote of the legislative body at a town meeting? Attorney Malia’s opinion is yes, to enforce any building code, the municipality would have to adopt it. This being the case even though the State Building Code is still in force whether or not a town chooses to adopt and enforce it, there being no RSA that requires a town to do so. If a town does not enforce the SBC, the responsibility falls on the state, but the state does not have the resources to conduct regular inspections of single family residences.
Attorneys at the Local Government Center, in conversations with Scott, agreed with both of Attorney Malia’s opinions regarding the State Building Code and Jackson’s current ordinance.
Regarding the second issue, Frank Benesh asked if the whole ordinance is invalidated, or only exemptions given to projects under the $10,000 threshold.
Jerry Dougherty IV stated that that if any building permit application indicates plumbing, electrical and/or structural work is being done, a permit is required and an inspection performed, regardless of the monetary value of the project. Scott felt that, if so, the current ordinance is unclear and potentially misleading. Even if a project involved electrical, plumbing or structural work, if it were under $10,000 a property owner might assume that not even an application is required. Nowhere in the ordinance does it state that an application must be filed regardless of the value of the work being done, though that is stated in the building permit application itself. Nor does the ordinance make clear that electrical, plumbing and structural work are not included in the $10,000 exemption
Holly Lewis pointed out that, by requiring a permit for any work valued at greater than $10,000, Jackson’s ordinance is sometimes more stringent than the SBC as the SBC exempts certain types of work regardless of value, e.g. installation of kitchen cabinets.
Regarding the need for a town to adopt a building code before enforcing it, both Betsey Harding and Jerry IV disagreed with the opinions of Attorney Malia and the attorneys at the LGC. Scott pointed out the wording in RSA 676:11, “After a municipality has adopted a building code, any person who intends to erect or remodel any building in the municipality shall submit plans to the building inspector [….]” as supportive of the argument that a town needs to first adopt a building code before enforcing it. Both Malia and the attorneys at the LGC indicated that because the RSA’s aren’t very clear, it wasn’t surprising that there’s disagreement over this question
Outside of the issues already raised, Jerry IV stated that Jackson has never properly adopted an enforcement process for the SBC. That Jackson incorrectly relies on the preexistence of a Zoning Ordinance enforcement process as the authority to now conduct SBC inspections.
George Howard questioned whether our ZBA, because it’s an appointed board, not elected, could serve as a building code board of appeals (see RSA 673:3 IV).
While opinions as to what’s wrong with our current Building Permit ordinance vary, there was general agreement that it should be reworked.
Frank Benesh made a motion to form a small 1 to 2 person subcommittee to draft a proposed ordinance; Betsey Harding seconded the motion. Ray Abbot opposed the motion. All others were in favor.
Scott appointed Sarah Kimball and Frank Benesh to the subcommittee and asked that Jerry IV and others submit to the committee drafts of how they felt the ordinance should be worded
Betsey motioned that we have a work session to make any improvements necessary; Bea Davis seconded the motion. All voted favorably.
Scott picked October 27th at 7:00pm as the date and time for the work session.
OTHER BUSINESS:
On October 29th from 9 to 12:15 the LGC will be hosting a Planning Board and ZBA fundamentals workshop. If anyone is interested in attending, contact Scott.
Scott received the final approval letter from Burr Phillips regarding the Grover Road conditional approval.
There was no further discussion.
Ray Abbott moved to dissolve the meeting at 9P.M.; George Howard seconded the motion and Chairman Scott Badger closed the meeting.
Respectfully submitted,
Susan G. Way, Secretary
October 18th, 2011
*********************
HASTINGS LAW OFFICE, P.A.
376 Main Street, P.O. Box 290, Fryeburg, ME 04037
Telephone 207-935-2061 • Facsimile 207-935-3939
PETER G. HASTINGS DAVID R. HASTINGS 1847-1896
DAVID R. HASTINGS III EDWARD E. HASTINGS 1879-1939
PETER J. MALIA, JR. HUGH W. HASTINGS 1914-1967
MARK T. KREMZNER DAVID R. HASTINGS II 1949-2010
August 16, 2011
Scott Badger, Chairman
Jackson Planning Board
P.O. Box 252
Jackson, NH 03846
Re: State Building Code issues
Dear Scott:
You and I have discussed several issues pertaining to the State Building Code as it relates to the Town of Jackson.
Question 1: Can a Town meeting warrant contain a two part vote?
Answer: Yes. An article can be made conditional upon the approval of a prior article. This can be done in one of two ways. The article can begin with the words: “In the event that article _____ passes, shall the Town…”. In the alternative, the article could end with the words: “This vote takes
affect only if article _____ passes.”
Therefore, Jackson could potentially place an article on the warrant asking the legislative body if they want to adopt and enforce the State Building Code, and then place a subsequent article on the warrant to carry out the enforcement mechanism.
Question 2: Section 16.2.1 of the Jackson Zoning Ordinance states: “Alterations to an existing building or structure within the existing footprint that do not exceed $10,000.00 in estimated value shall not require a permit.” Should the $10,000.00 threshold be eliminated?
Answer: Yes. The New Hampshire Building Code, RSA 155-A:1, et seq. does not set forth a monetary threshold for an application for a building permit. Therefore, it could be argued that by exempting construction projects of less than $10,000.00 from the building permit process, Jackson has enacted a municipal ordinance that is less stringent than the requirements of the State Building Code, which is not permitted.
Question 3: To enforce the State Building Code, does a municipality have to adopt it by vote of the legislative body at a town meeting?
Answer: This question is quite a bit trickier than the first two. It is not surprising to me that you have apparently received two different opinions. In my opinion, the answer is yes (to enforce the municipality would have to adopt).
The New Hampshire State Building Code Review Board contains a frequently asked questions section. One of the questions (and its answer), is as follows:
“Who enforces the State Building Code?
The local enforcement agency appointed pursuant to RSA 674:51 is authorized to enforce the State Building Code. In towns where there is no building inspector, the New Hampshire State Fire Marshall is authorized to enforce the State Building Code pursuant to RSA 155-A:7,I.”
RSA Chapter 674 governs Local Land Use Planning and Regulatory Powers. RSA 674:51 is entitled “Power to Amend State Building Code and Establish Enforcement Procedures.” This statute begins by stating: “The State Building Code established in RSA 155-A shall be effective in all towns and cities in the State and shall be enforced as provided in RSA 155-A:7.”
RSA 155-A:7 is entitled “Enforcement Authority,” and it says that the local enforcement agency shall have the “authority” to enforce the provisions of the State Building Code. It does not say that the local enforcement agency is required to enforce the provisions of the State Building Code.
One option would be for Jackson to add a disclaimer to the building permit application which states:
“By signing this application the property owner/contractor acknowledges that they understand that State law (RSA 155-A:1, et seq.) requires that residential structures be built in accordance with the International Residential Code 2000. Further, the owner/contractor agrees that this structure will be built with the International Residential Code 2000. Be advised that the Town of Jackson does not conduct inspections pursuant to the International Residential Code 2000.”
Please call me if you have any questions.
Sincerely,
Peter J. Malia, Jr.
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