Jackson Planning Board RegularMeeting
April 12, 2012
Present: Chairman Scott Badger, Selectmen’s Representative John Allen, Frank Benesh, David Treadwell, Sarah Kimball, Betsey Harding, George Howard and Mike Mallett
Visitors: Gino Funicella, Hank Benesh, Dave Mason and Huntley Allen
Chairman Badger called the meeting to order at 7:04 p.m.
1. Call to Order
a. Roll Call Member Ray Abbot and Alternates Larry Siebert, Darren Levitt and Dick Bennett are absent.
b. Minutes of February 9, 2012 Frank Benesh asked if there were any decisions made regarding how the Board is going forward on various items; Chairman Badger noted there was some discussion but no decisions. Betsey Harding, seconded by David Treadwell, made a motion to approve the minutes of February 9, 2012. The motion passed 5-0-2 (Allen & Benesh abstain).
c. Public Comment: concerning items not on the agenda There were no comments at this time.
2. Public Comment: concerning items not on the agenda There were no comments at this time.
3. Continuation of 2012 Planning Board initiatives discussion (Summary)
a. Master Plan. The board discussed updating the Master Plan which needs to be done every ten years. The two major parts are the Vision statements and the Background information. Several members felt that there should be community involvement in developing the Vision statements by doing a survey, or conducting a series of meetings. The background information needs to be reviewed and updated such as incorporating information from the last census. Though the whole board should be involved, a subcommittee was be formed, both to map out the process and to help pull everything together. Discussion will be continued at the next meeting.
b. Capital Improvements Plan. Board members present felt that updating the Capital Improvements plan should come after a Master Plan update. Since the Capital Improvements Plan is intended to be a guide for the Selectmen, members wanted to get input from the Selectmen as to what would be useful for them. Selectmen’s Representative Allen will look through the most recent Master Plan and ask the other Selectmen if they think the Board should update it. The Board agreed to start with the Selectmen’s input on this.
c. Building Code Enforcement Some on the board felt that it would be a good idea to give this issue a rest for the time being. Others felt, though, that beyond the questions of proper authority, the process currently being used by the Selectmen was in contradiction with the wording of the Zoning Ordinance and for that reason, at least, amendments to the Zoning Ordinance need to be worked on. Discussion was continued to the next meeting.
4. Old business There was none.
5. New business There was none.
6. Adjournment Betsey Harding, seconded by Selectmen’s Representative Allen, made a motion to dissolve at 8:37 p.m. The motion passed unanimously.
7. Continuation of 2012 Planning Board initiatives discussion (Detail)
a. Master Plan The Board had some discussion about the Master Plan which they need to continue. Chairman Badger said at the last meeting that he doesn’t have the time to invest to lead this kind of project; he is looking for a member of the Board to lead a subcommittee; he also invited members of the public to join and/or give their input. Chairman Badger asked if the Board develops a new Master Plan or makes adjustments to the document it has and Frank noted it is a major effort; the Board takes an inventory and updates certain things while discussing others; the Master Plan should represent what the community wants. This means a significant effort perhaps stretching nine months; the Board would spend that time developing community input, maybe generating a survey; he
suggested the Board consider a build-out analysis; the Board should come at this as a vision; this is not a two month process.
The Master Plan is adopted by the Planning Board but not at the Town Meeting so there is no deadline. Sarah Kimball noted the Master Plan is updated every ten years. Frank noted the Master Plan is also supposed to guide the Board in how it implements the Zoning Ordinance (JZO). For example, the Master Plan calls for the Board to concentrate on the Village District and rezoning of Route 16 so that’s what the Board should be working on. The Master Plan guides the Board on how to operate; if it is a realistic plan the Selectmen should be using it too. The Master Plan looks at what the big issues are facing Jackson for the next five to ten years.
Betsey noted the Board did the survey and found a significant amount of responders wanted to remove the Commercial Zone but not to make it Village throughout. This request for information should be put out to the people. It was last done in 2001 and the survey was sent to everybody with their tax bills; out-of-towners got one color while those who reside in-town received a different color. Phil Davies compiled the data and that document spells the results out clearly.
Chairman Badger found out about the process online through the Southern NH Law Center; he does have questions because he wasn’t involved before; he wondered if the Board established a subcommittee that did the work then brought it back to the Planning Board. Sarah noted there are two parts to the Master Plan; the second part is the background information; the Board needs to read through the Master Plan and update the information; the 2010 census data can be added. The first section fits into more of what Frank was talking about with Purpose and Vision statements; the Board is looking to see what topics are important to the town; where does the public see Jackson in the years ahead; the Board will see those ideas and put it together into the Master Plan. Frank wasn’t on the Planning Board at that time but
Master Plan preparation is not done by a subcommittee; the Planning Board does it; it is one of the Board’s core responsibilities and is even more important than zoning.
The Board can have a subcommittee providing pieces but the Master Plan should be a major part of the Board’s meetings for some time, the community should be involved as well. Frank suggests a series of meetings to ask folks about transportation issues, the school is part of the community and the Board needs to think about that; there could be a discussion about land development, the building code and zoning in general; part of that is where folks want residential and commercial development to be and what kind of residential development they want; the objective is for the Board members to agree among themselves as to what the community wants.
Chairman Badger still wants to know if the Board wants to form a subcommittee; Frank is saying this is a Planning Board project more than a subcommittee project; if there needs to be someone else in the Chair’s seat to do that he understands; he wants to make sure it’s done in a way that is effective. Betsey would love to participate; it should be a monthly reporting thing. Sarah noted the last time the Board worked on the Master Plan the members divvied up the research part of it. Chairman Badger is happy to participate like that; Sarah noted everybody on the Board was involved but a subcommittee pulled the Master Plan together.
Frank noted the Board needs to discuss the budget and a survey; does the Board want to hire someone to do a build-out analysis and what would be the cost of that? Betsey noted the Upper Saco Valley Land Trust has someone that does that. Chairman Badger noted the Board doesn’t have a budget for this. George Howard asked if the town is still a member of the North Country Council (NCC) and noted the Board can draw on them as a resource; they have a planning council up there and have access to the data that will get the Board started. Betsey wondered if the NCC would be able to take into account Jackson’s steep slopes where folks are not able to build, and Chairman Badger noted they might provide theoretical information versus going out to do actual calculations.
Frank noted since zoning and development happens so slowly the Board may want to look at what the town might look like in fifty years. Betsey noted it will be up to the Chair to appoint subcommittee members for this process however Frank is suggesting a subcommittee to decide how to organize the committees with that discussion being added to the agenda for next month. Betsey would be willing to work on this; George is also interested as is Frank; Dick Bennett was on the Board when it went through this process ten years ago; while three members might be enough Chairman Badger will ask Dick about participating. This subcommittee will come up with a plan for the process including a budget, some of the topics to be addressed, how to organize the effort, and even some objectives. There is no deadline to this; once
the Board gets going the members want to keep going on it but they also want to take all the time needed to do this properly.
Sarah noted this took about a year last time but there were members in charge of certain pieces who didn’t get their information in. Betsey will check other towns’ master plans; the Board might even save money as it can put out a one page document this time with references to the current Master Plan; the Board doesn’t have to issue a book; it does need to update what it has. George asked if the Mater Plan is conceptual rather than directive since it isn’t voted on. Dave Mason noted RSA 674.2 states the Master Plan is directive and it is the responsibility of the Planning Board to support it and educate the people. It would be a major issue if the town is doing something in the opposite direction of the Master Plan; if that is the case then the Board would need to act differently or make
a change to the Master Plan. George noted there is more than one way to carry out the Master Plan; this is a guide as to how to do it rather than a statement to do it this way. Betsey noted the RSA says if the Board makes a decision that differs from the Master Plan then it should state the reason. Frank noted that besides the Planning Board, the ZBA pays close attention to the Master Plan especially if what is in the JZO is not clear.
Chairman Badger wondered if the Plan would typically address an issue specifically such as “rezoning Route 16” versus simply “preserving open space”, and Frank noted the Master Plan tends to be focused. He suggested along with that subject the Board might address developing a plan for the Gray’s Inn property; what should the town do with this property; recreation is a big part of the community and there used to be a trail up to Thorne Hill that is not there now; there are a lot of things the town could be doing and the Master Plan deals with all of that. He noted that in the ten years since the Master Plan was last done the whole shoreline protection approach has changed quite a bit; the town could decide that it is more important and the Board should be doing more to protect the shore of
Jackson’s rivers; that may mean placing limits on pavement, development or the cutting of trees that are within a certain area of shoreline.
Chairman Badger wondered if the Board is bound to the Master Plan: For example, the Board decides Route 16 is what it will look at and through public hearings it becomes clear that folks want to leave it the way it is because no one wants to give up on the commercial aspect of that land. Frank noted the Board should already know what the town wants through its surveys although one could make the case that only certain people will answer the survey; it is possible that the sentiments of those who participate will be different from the current version of the Master Plan. Chairman Badger wants to know if the Planning Board is bound to push that through; Frank noted if the new survey isn’t clear then the Board members would have to look at it and use their judgment. Chairman Badger is not sure how much input
came from the public but the sentiment was this was not favorable and so the Planning Board abandoned it. Frank noted that is what the process will bring out; the Board will be trying to get to the truth again of what the community wants.
b. Capital Improvements This was not discussed at the last meeting, and Frank noted this is typically done after the Master Plan is done. Betsey noted the Board had been doing this every year for six years out; this was last done two years ago. Chairman Badger noted the one he looked at online was from 2005 or ’06; Betsey thinks it was updated and Dave Mason noted it was done when he was on the Board of Selectmen. The Selectmen did find it helpful, especially the part about putting money in for roads; he noted the Selectmen didn’t follow the directives exactly because of the cost; he will send around the latest version. Frank wondered if this is something the Board should be doing now no matter when the Board did it before; does the Board feel this needs to be
worked on this year? Sarah thinks the Board should look at it and get input from the Selectmen as to what would be helpful to them. Selectmen’s Representative Allen will look through the most recent Master Plan and ask the other Selectmen if they think the Board should update it. The Board agreed to start with the Selectmen’s input on this.
c. Building Code Enforcement Chairman Badger noted that even though this went through the voting process with the two petitions there was a lot of confusion regarding those petitions. One of the issues with the continuation petition as mentioned by Selectmen’s Chair Dougherty, the petition asked the Board of Selectmen to enforce the Building Code according to Section 16, and if the Board takes this at its word this includes the $10,000 threshold. Town Counsel Peter Malia noted the vote gives the Selectmen more to stand on. Chairman Badger noted it wouldn’t be inappropriate for the Planning Board to work on an amendment to make sure the Building Code is enforced properly.
David Treadwell feels it would be good to have a fully qualified legal expert look at what Jackson is doing; when it was noted Counselor Malia has been watching this process David noted the result from him was wishy-washy; David would like to hear “fix this” and “leave that”. Frank emphatically disagrees; the town was clear what they wanted with the vote in March; Frank feels the town has been beat to death over this for a couple of years; the town took a vote on this, and it should be blindingly obvious what the town wants to happen, he asked that the Board just let it be. There is a separate clause that if something is illegal it is not followed; the Selectmen have the authority to enforce the Building Code and can ignore or impose the $10,000 threshold; Frank’s tired of fighting over this
issue; he’s had enough of this. Chairman Badger stated he will ask Counselor Malia what he thinks regarding the legal basis but Frank noted Counselor Malia already said he’d like the town to adopt a separate building code ordinance.
Chairman Badger’s question is whether what the town is doing will stand up if it’s taken to court; the town has not provided proper authorization and then there is the $10,000 threshold. Frank noted the premise here is if Jackson gets taken to court and there are a lot of other things Frank worries about. He believes it is far more important to work on the Master Plan. Mike Mallett noted the town can’t just sweep the $10,000 threshold under the rug; Frank noted the Selectmen just say they want to ignore that $10,000 portion. Chairman Badger thinks that would undermine the authority of the petition; this is a transparency issue; there is nothing in the JZO that says anything about building code enforcement; the only way anyone finds that out is on the application.
Frank noted enforcing the building code is a state law; he really doesn’t want to get into this again; no one should expect that they can build without adhering to the state building code. George disagrees; the town has to have a document that says “This is what you need to do to build”; now folks have to go looking for what needs to be done. Frank noted everyone has to fill out the application and it’s on the application that the state building code is enforced. Chairman Badger noted folks are also seeing that no permit is needed for work under $10,000. Sarah noted the Board started this whole thing by recognizing the Selectmen had a policy in place that was different from the ordinance. Frank feels the Board should amend the JZO so that it complies with what the Selectmen are
doing so they are complying with the JZO. Chairman Badger thinks what happened through 2011 was an unclear idea of what the town wanted, but Sarah noted the Board has the town’s input now and thinks the Board should amend Section 16 so that it states that Jackson enforces the state building code but not the $10,000 threshold; she thinks the Board should add in the authorization to enforce and add in the position of Building Inspector and some of the qualifications for that position. The Selectmen shall put those together so it is clear what the enforcement mechanism is; who is doing it, how it is enforced and what that person’s position is in the town hierarchy.
Selectmen’s Representative Allen agrees as does Betsey; setting up a whole new ordinance doesn’t clear up Section 16; the Board needs to take into account what the voters want. Chairman Badger wondered if the Board should create a new Section (17) as he feels there are two issues; zoning ordinance enforcement and building code enforcement which will be confusing to handle in one ordinance. Frank noted the Board already had a subcommittee address this and the Board made three changes: to remove the $10,000 threshold, remove the Certificate of Occupancy and to state the Selectmen are enforcing the code. Chairman Badger thinks the $10,000 threshold is appropriate to the JZO but Frank disagrees. Chairman Badger thinks 95% of the work is done; there might be some effort outside the meeting to boil down
what the Board has, what the Board proposes to tweak. Selectmen’s Representative Allen wondered if the Board has used the services of the LGC, Chairman Badger noted the Board has used the LGC; all of this discussion is because at the RSA level it is very confusing. The LGC put out a PowerPoint presentation that is impressive and an FAQ sheet but when talking to these folks (at LGC) there’s a lot of “this is my opinion” Frank noted the RSA’s are vague; the town had two Town Counsels that had two different opinions. George would like to see something put together for the next meeting. Mike noted any change to the ordinance would wait for next spring’s Town Meeting; he wants to know how the town is going to handle this; if someone wants to do a repair; they have to fill out an application but if the work is under $10,000 the code says inspections aren’t needed. Selectmen’s Representative Allen noted
any plumbing and electrical work triggers an inspection. Frank agrees the Selectmen should post these requirements on the town website; the Selectmen are going to have a meeting about this pretty soon.
Chairman Badger noted the last time he talked to the LGC he asked whether the town could enforce the state building code for commercial properties and Paul Sanderson said it’s technically less stringent. The town certainly can enforce the building code in its entirety or not at all but what can be done between those two options is his concern. George’s most recent version of a rewrite was passed around. Chairman Badger would like the Board to work on this; he, Mike, Frank and Sarah will work on it but Frank noted it is not clear what the objective is. Chairman Badger noted the objective is what the town would like to happen which is enforce the state building code and to amend Section 16 to make it clear the town is doing this but not enforcing the $10,000 threshold. The Board needs to make
sure it is not back to square one. Chairman Badger believes the options are to allow the town to vote for enforcement or to vote not to enforce; what happens if the town votes no depends on how the ordinance is written; he’d like to see something that would allow the town to vote for enforcement of the building code on all properties, on commercial and multi-family properties or on none of these. Frank noted the town just had this vote and it was overwhelming; he can understand taking out the $10,000 threshold but he can’t see coming up with five more pages of amendments on this. Chairman Badger is not pushing for that. Mike noted the overwhelming vote was yes; but the choice was to enforce or not to enforce; no one can take that as the vote of the people is 100%. Dave Mason noted he does.
Betsey proposes looking at some towns that are similar in size and issues to see how they worded this. George noted there is an educational process that has to happen; the concept of what was in the RSA is that one has to build by the state building code but enforcement is the problem. Frank feels the Board is beating a dead horse; he doesn’t want to go through this again; the Selectmen can say they are ignoring the $10,000 threshold and are requiring an occupancy permit and move forward; if someone doesn’t think that’s right then it can go to court. Gino Funicella noted Jackson has gone to court on this three times including one case that was taken to the Supreme Court, and not in any of those did the court say the town couldn’t enforce the building code. The vote was 150 - 30 to see
that the Selectmen enforce the building code. He urged Chairman Badger to leave this alone; he feels Chairman Badger is pushing this because he doesn’t want inspections and occupancy permits; Chairman Badger disagrees with this statement but Gino thinks it sounds like Chairman Badger didn’t get the message. Chairman Badger noted he doesn’t feel good about the Selectmen ignoring the JZO. Dave Mason noted the JZO says no occupancy permit is needed for certain work but state law overrides the town’s ordinances, he suggested the Board just change the ordinance and Chairman Badger noted that’s what he is talking about; he’s not debating whether to enforce the state building code or not; he’s asking to make it clear.
Huntley Allen believes the vote to enforce the state building code for commercial and residential properties was clear. Mike noted it is not clear, and he is speaking from experience. He was at a person’s house he built ten to fifteen years ago; the owner is adding electric receptacles in the basement and didn’t get a permit; they didn’t know they had to because the work was under $10,000. These people voted for enforcement, but when Mike explained they had to get inspections they said that was not right because the $10,000 threshold is in there. This person voted for it not knowing he would have to have this work inspected. There is a confusion point; the $10,000 threshold needs to be pulled out. Frank noted the issue is more than just that; no matter what the Board does with the
JZO people won’t read it all; there needs to be a statement on the website clarifying if folks are doing “X” for work then they need to have the Building Inspector involved; this includes all electrical and plumbing work. Frank believes adding that will do more than taking sentences out. Mike noted people are reading the information now and they think it’s okay to do the work. Frank reiterated that what is needed is something in clear English that says if you do “X” this is what you need. Mike is not debating this; all the members of the Board agree and will work to fix it. The subcommittee will boil it down to something to present at a future meeting. Huntley noted that both Selectmen Dougherty and Thompson made the same statement as Chairman Badger did about getting the Selectmen out of building code enforcement and creating a separate board to handle these. The Selectmen appointed the Building
Inspector but the Building Inspector does the enforcement per the RSA; the enforcement process is performed by the Building Inspector. Frank noted the Selectmen have that authority now; they don’t have to be signing the permits. Chairman Badger doesn’t think that is supported by the RSA. George noted there is no record of infractions; if Jackson follows the RSA the authority falls under the Building Inspector. Frank disagrees; this is the purview of the Selectmen and it is important for the Selectmen to keep this authority; they mentioned creating a separate board; Frank would like to remind folks Jackson has enough trouble filling the boards the town already has. There is little use for a Building Code Board of Appeals; the drift is towards making the ZBA the Board of Appeals. The subcommittee will look at the other towns; Jackson could set up a Board of Appeals for the building code. Huntley feels if a Selectman has business
dealings with a person who is asking for a permit then s/he should step down. The RSA says the Building Inspector issues the permit. Dave noted the Selectmen are always the enforcement authority and therefore the Selectmen can enforce the building code or they can bring in someone else. Chairman Badger will reread the RSA. Gino noted Jackson has a Board of Selectmen elected by the town; they take an oath of office; they are backed up by insurance. He cautioned the Board to be very careful of taking this out of the hands of Jackson’s elected officials.
Chairman Badger noted one thought behind the Building Inspector issuing permits is that the Building Inspector has the knowledge; the Selectmen don’t have that expertise. It was noted that is why Jackson has hired a professional. Frank urged the Board to stop and think about this discussion; the Board is not talking about building to code; it’s discussing whether or not a project is in compliance with the JZO including egresses. Chairman Badger thinks the RSA is more specific; Section 16 sort of covers zoning and the building code. Betsey noted that once the Board makes the enforcement of the state building code part of the JZO this can be addressed. Mike asked Huntley how many visits a month he makes where he has to cut and/or replace a pipe; if that’s ten times a month Mike wondered if
Huntley is aware that’s one hundred to one hundred twenty permits a year for that work; a permit is needed even if he’s just cutting a pipe; there are certain things that have to be changed at the state level. Huntley doesn’t think the town of Jackson is enforcing the state building code as it is written and that is to Jackson’s benefit. Jackson is doing a good job enforcing the code. It was reiterated Huntley needs a permit any time he is cutting pipe but Frank suggested it really just involves making a phone call to Inspector Chalmers. George would like to go back to the education side; the code talks about reviewing construction plans; there is a permitting process that is fairly extensive; if it isn’t written somewhere what the Selectmen can do it puts a lot of power into the hands of a few people. Frank noted what George is suggesting means writing things into the JZO that are in contradiction to what the state
building code requires. George is talking about big stuff; there is an education process. Mike doesn’t think most people understand what this code means. Frank noted there is no question that if the Selectmen literally enforced the code they would be run out of town. “Enforcing” means not really enforcing part of it; the key is to be consistent; it is foolish to say someone has to get a permit to change an outlet. Mike noted it needs to be clear enough so the average homeowner knows what to do. Frank still thinks that could be just a phone call to Inspector Chalmers; Jackson can’t put in writing that it is not doing some things that are called for; folks have to leave it to the discretion of the Building Inspector whether to proceed to an application or not. There are so many permutations folks have to leave it to the judgment of someone like Inspector Chalmers. George doesn’t think homeowners should have
to ask the Building Inspector’s permission.
Huntley noted that as far as new construction goes, there is no reason not to meet code. With renovations the builder/homeowner should always try to make it better but they can’t meet the code. Frank is saying the Selectmen are the ultimate authority and it is up to them to decide how much discretion the Building Inspector should have. If they have confidence in the Building Inspector then they can delegate all or eighty percent of the work to him so projects can proceed quickly. Mike wants to know what Frank means by “discretion” and Frank explained he means the permit wouldn’t have to be signed by the Selectmen. It was noted if Inspector Chalmers is uncertain he goes to the Selectmen who have no background for these decisions. Frank feels if the application is
straightforward he has no issue with the Selectmen delegating this to the Building Inspector; George feels differently stating the RSA puts it in the Planning Board’s lap to take care of; it’s the zoning part of the RSA; he disagrees that the Selectmen automatically take on that authority. Frank noted the Selectmen have the authority to enforce the JZO because the voters just gave them the authority. Betsey disagrees because the building code has nothing to do with the JZO. This would be a good question for the LGC. The subcommittee members will set a time to get together.
8. Old business There was none.
9. New business There was none.
10. Adjournment Betsey Harding, seconded by Selectmen’s Representative Allen, made a motion to dissolve at 8:37 p.m. The motion passed unanimously.
Respectfully submitted by:
Martha D. Tobin
Acting Recording Secretary
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