Planning Board minutes for Nov 10, 2011
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 and Larry Siebert. Darren Levitt and Mike Mallett contacted the chairman to say that they would not be able to attend.
Members of the public attending - Bob Davis, Jerry Dougherty III, Jerry Dougherty IV, Norman Head, Andy Chalmers, Bob Tafuto and Attorney Peter Malia.
The minutes of the October 13th meeting were reviewed.
Betsey Harding made a motion to accept the minutes as written and David Treadwell seconded the motion. Scott asked if there was any discussion. There was none. All voted in favor.
The minutes of the October 27th workshop were reviewed. There was no discussion.
Betsey Harding made a motion to accept the minutes as written and Sarah Kimball seconded the motion. All voted in favor.
PUBLIC COMMENTS:
None
PUBLIC HEARING ON ZONING ORDINANCE AMMENDMENTS:
Scott distributed the Zoning Ordinance Amendments to Section 12, Areas of Special Flood Hazard, prepared by the Office of Energy and Planning. These amendments are required if Jackson is to maintain eligibility in the National Flood Insurance Program. Scott explained that if Jackson were to lose its eligibility, Jackson residents would no longer be able to obtain or renew flood insurance policies.
Frank asked about the changes to Jackson’s Subdivision Regulations that were also submitted by the OEP. Scott felt that it would be best to deal with the ZO amendments tonight and the Subdivision Regulations at next month’s meeting.
Scott asked if there was any public discussion on the flood plain. There was none.
Betsey made a motion to accept the amendments as prepared by the OEP and to use the language in their sample warrant article. Sarah seconded the motion and all voted favorably. (The amendments are available in the town office)
DISCUSSION OF TOWN INSPECTIONS TO ENFORCE THE STATE BUILDING CODE:
In an effort to help focus the discussion, Scott stated that he felt that the town had three options: 1) Do nothing and leave the Zoning Ordinance as is, at least for this year. 2) Propose amendments to adopt an enforcement process that would allow the town building inspector to perform inspections so as to enforce the State Building Code, except where building permits are exempted by the SBC. 3) The same as 2), but including some additional, more stringent, provisions.
It was clear there was no interest in 3) and so the discussion moved to option 1). Betsey pointed out, as she has at previous meetings, that the under $10,000 exemption in 16.2.1 represents a less stringent application of the SBC and, as such, is not allowed by the state.
Scott stated that, though contrary to the opinion of the former town counsel, both the current town counsel and attorneys at the Local Government Center believe Jackson has never properly adopted a SBC enforcement process. Section 16 is a Zoning Ordinance enforcement process and does not qualify, under RSA 674:51, as a preexisting building code enforcement process which can be used to enforce the SBC. When asked by Scott, town counsel, Peter Malia, said he believed it was likely that using Jackson’s current ordinance to justify SBC enforcement would not stand up to a legal challenge.
Moving then to option 2), Peter Malia passed out proposed amendments to Section 16 that he had prepared (see attached). As he explained, the intent of the amendments was to: first, allow the town to vote on whether Jackson enforces the SBC, or not, and second, allow the town to adopt an enforcement process of the SBC, including its exemptions.
Larry was concerned with the word “continue” in the phrase, “continue to conduct inspections”. Peter stated that he did not believe it would not significantly change the amendment if “continue” were removed.
George felt that town inspections were a violation of individual rights and that it should be the responsibility of the property owner to follow the SBC and have inspections done to ensure such. Scott stated that he felt this was a valid stance, but at this point, given that Jackson is already performing inspections, if an article stating simply that Jackson would no longer enforce the SBC were to be voted down, we would still have an invalid enforcement process in place. To ensure some correction, at least, he felt the only way forward was to give the town the opportunity to decide whether or not to enforce the SBC.
Jerry Dougherty, IV stated that it’s RSA 674:51 which authorizes a town to adopt an enforcement process, not, as noted in Peter Malia’s amendments, RSA 155-A.
Scott asked what would happen if Amendment 1 passed and Amendment 2 failed. Peter Malia answered that the Town would continue the inspections and still have the $10,000.00 conflict with the State, but the intention of the town to enforce the SBC would be much clearer than it is currently.
Jerry Dougherty, III asked what would happen if there is a dispute when a violation occurs. Andy Chalmers, town inspector, replied that until the town set up a Building Code separate from the ZO, any appeal would have to go to the Superior Court. Peter Malia agreed with this. Andy went on to say that during his 14-year tenure, the Conway Building Code Board of Appeals has had no appeals.
Frank felt that some of the language in the amendments he and Sarah had proposed was a little clearer.
Scott pointed out that for the town to properly require a certificate of occupancy for single-family residences, 16.2.11 would need to be amended. Attorney Malia suggested a 3rd Amendment to that effect.
Larry Siebert made a motion to present the following articles at a public hearing during the December Planning Board meeting:
(Note: Articles 2, 3, 4 and 5 are Zoning Ordinance Amendments proposed by the Jackson Planning Board; changes are indicated as follows: Italics = insertions; strikethroughs = deletions from present Zoning Ordinance.)
ARTICLE 2: Are you in favor of the adoption of Amendment No.1 to the Jackson Zoning Ordinance, as proposed by the Planning Board, to authorize the Building Inspector to enforce the State Building Code by changing the title of Section 16.1 of the Jackson Zoning Ordinance as follows: “Duty Duties of the Board of Selectmen and Building Inspector” and adding the following sentence to the end of Section 16.1: “The Building Inspector shall enforce the State of New Hampshire Building Code as set forth in RSA 155-A, as amended. The Zoning Board of Adjustment shall act as the Building Code Board of Appeals as provided in RSA 674:34”
ARTICLE 3: Are you in favor of the adoption of Amendment No.2 to the Jackson Zoning Ordinance, as proposed by the Planning Board, to bring the Jackson Zoning Ordinance in line with New Hampshire State Law by changing Section 16.2.1 as follows: “A building permit shall be obtained before a building or structure is constructed, extended, removed or altered. This requirement also applies to swimming pools, mobile homes, modular homes and exterior signs. Alterations to an existing building or structure within the existing footprint that do not exceed $10,000 in estimated value shall not require a permit. Alterations to an existing building or structure that (a) does not extend the building or structure (or any part thereof) for a greater width, a further depth, nor greater height, (b) does not change or modify its use, and (c) involves
alterations that do not require a permit under the State Building Code as established in RSA 155-A shall be exempt from the requirement for a building permit in this section.”
ARTICLE 4. Are you in favor of the adoption of Amendment No.3 to the Jackson Zoning Ordinance, as proposed by the Planning Board, to require a certificate of occupancy for all structures erected in Jackson by changing the first sentence of Section 16.2.11 as follows: “A building or structure, with the exception of detached single family residences, hereafter erected shall not be used or occupied in whole or in part until the certificate of use and occupancy shall have been issued by the Board of Selectmen or the Building Inspector.
OLD BUSINESS:
Scott reported on the Planning Board Fundamental Workshop. He said that a considerable amount of time was spent on Right to Know law and e-mail exchanges in particular. He pointed out that any exchange that is deliberative and involves at least a quorum in not allowed. Scott urged caution, though in any exchange as “deliberative” is very difficult to define, and even if an exchange doesn’t involve a quorum when it happens, it can become a quorum if the exchange is simply forwarded to any other members.
NEW BUSINESS:
Frank asked if there was any interest on the board towards considering a change in the District designation along Route 16 north of the Town & Country sign from commercial to residential. After some discussion, it appeared that there is interest and that the board should consider such a change next year.
The next meeting will be a Public Hearing and Planning Board Meeting at the Whitney Center (if available) on December 8th at 7 P.M. to present the proposed changes.
There was no further discussion.
Ray Abbott moved to dissolve the meeting at 9:30 P.M. Betsey Harding seconded the motion and all voted favorably.
Respectfully submitted,
Susan G. Way, Secretary
November 12th, 2011
Attorney Peter Malia’s proposed amendments:
Amendment No. 1: Change the title of Section 16.1 to “Duties of Board of Selectmen and Building Inspector,” and add the following sentence to the end of Section 16.1: The Building Inspector shall continue to conduct inspections and enforce the State of New Hampshire Building Code as set forth in RSA 155-A, as amended.
Amendment No. 2: Amend Section 16 by deleting the last section of Section 16.2.1 and replacing it with the following: “Alterations to an existing building or structure that (a) does not extend the building or structure (or any part thereof) for a greater width, a further depth, nor greater height, (b) does not change or modify its use, and (c) involves alterations that do not require a permit under the State Building Code as established in RSA 155-A shall be exempt from the requirement for a building permit in this section.”
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