PUBLIC HEARING MINUTES
JANUARY 17, 2013
The Planning Board held a Public Hearing on Thursday, January 17'h, 2013 at 7:30PM, at the Town Offices Building on Main Street, regarding a proposed Building Code Ordinance. This ordinance will create a process for the enforcement of the State Building Code and any additional regulations thereto, establish the Zoning Board of Appeals as the Building Code Board of Appeals, and establish the position of Building Inspector, who shall have the authority to perform inspections as may be necessary to assure compliance with the State Building Code and issue building permits and certificates of occupancy.
An amendment to the Building Code Ordinance was also presented at this public hearing. If the Building Code Ordinance should pass, this proposed amendment would allow voters to exclude single-family construction from the town permitting process.
Roll Call
The meeting was called to order at 7:35 pm by Scott Badger.
Members Present: Chair, Scott Badger, Vice Chair, Sarah Kimball, Selectman’s Rep John Allen, Frank Benesh, & Betsey Harding. Dave Treadwell arrived late, at approximately 7:50. Ray Abbott was not in attendance.
Alternate Members Present: Dick Bennett and George Howard. Larry Seibert let Chair Scott Badger know he would not be here, & Mike Mallet and Daren Levitt were not in attendance.
It was determined that George Howard will be voting in place of Ray Abbott.
Members of the Public Present: Gino Funicella, Jerry Dougherty III, Select Board Chair Jerry Dougherty IV, John Pietkiewicz, Hank Benesh, Joyce Allen, Huntley Allen, Joan Aubrey, Roger Aubrey, Denise Sachse, Peter Benson, Bea Davis, Bob Davis, Dave Mason, Jeanne Mason, Edith Houlihan, & Dick Badger.
Chair, Scott Badger let all present know that there would be 2 public hearings tonight, the first about the proposed Building Code Ordinance, and the second about an amendment to the first if it passes to exclude single family homes from permitting and inspections under the Building Code Ordinance, but not from the zoning process.
Building Code Ordinance. In brief, Scott let all in attendance know this ordinance is intended to give the Town of Jackson proper authority to enforce the State Building Code and to clarify the process. The planning board felt this would be better done as a separate ordinance instead of using section 16 of the Zoning Ordinance for enforcement. Betsey added that some people have expressed the idea that we already have enforcement authority, and some that we already had voted for it, and may wonder why we were going through this again. She feels this will allow us to actually enforce the State Building Code, without relying on the wording of the current Zoning Ordinance, which is in conflict with the requirements of the SBC.
Dave Mason spoke saying he has looked through and feels the board has done a pretty good job on it; he has a problem with asking to adopt a building code. This concerns him as we already have the state code and this just provides the enforcement of it; he commented that people might be confused, thinking they have the option of not adopting and following the SBC.
Scott agreed that the SBC is law, whether we decide to enforce this or not. There was some discussion as to whether to include the “adopt” wording or not. The RSA language is left over from when you could adopt it. Scott said Peter Malia, Town Attorney, did not feel strongly that we should adopt, whereas the Local Government Center feels we should adopt the State Building Code. It is law. Huntley Allen had asked at a previous meeting what would happen if this doesn’t pass; Frank reminded Scott that he was told then we go back to status quo, an imperfect enforcement authority.
Jerry Dougherty III had 3 questions:
1. is there a State Law that requires town to enforce the State Building Code? Scott answered no, the State has ultimate responsibility.
2. Does this adopting of code require the building inspector to enforce, issue permits and inspect for violations? Scott answered yes.
3. Does legislative body set the wages if this passes? Scott answered that the Selectmen set a fee schedule and salary which is then put in to their budget and voted on at town meeting. Jerry III then asked if it is typical for 1 person to do all of the above. Scott answered that Section 16 of the zoning ordinance does provide for that option, but it’s up to selectmen to make that decision. Enforcing, issuing permits and inspecting for violations does require some expertise to do.
Bea Davis said she spoke with Representative Ray Burton’s office, regarding whether it needs to be adopted, and was told it doesn’t have to be voted on it is law already. We would need to adopt the enforcement aspect. And the State Fire Inspector said the same.
Huntley added that he spoke last year with fire marshals’ office, and was told if we already have an enforcement mechanism in place, we cannot drop it now and do nothing. A Town can only be more stringent to code, not less.
Phil Davies asked if the building inspector will issue a certificate of occupancy, and if the permitted work doesn’t pass who will issue one, the Selectmen? Scott said Selectmen will only enforce Section 16, which does not require a C of O. Phil asked if we might be sued for negligence in a fire.
Betsey answered Huntley’s earlier question by reading from the RSA that any local enforcement mechanism already will remain unless it conflicts with the State Building Code, as ours does.
Dave Mason said we have an inspection process now, because just a couple of words could be changed to fix it. Scott said a couple of words won’t fix it; it needs more. What we have now is a zoning ordinance, not a building code ordinance.
Jerry Dougherty IV said he still hears a lot of resistance and obstruction. What is proposed tonight is new and different. And this achieves the process that is needed to enforce. State law can change. It’s our responsibility to adopt so we can enforce state laws. This proposed ordinance will do that and is the minimal necessary under current state laws. We need to be in favor of this.
Jerry III asked the board if this ordinance is what is required to enforce state building code. The answer was, yes.
Peter Benson said that at last year’s vote it was clear that the town does want inspections, and as a safety person, he wonders why would we only do the minimum, why don’t we do the utmost to keep people safe? This requires being respectful of the process. We need to exceed the minimum and we need to think beyond what we do to enforce safety even beyond state, maybe even beyond the IBC (International Building Code). This community deserves better. Jerry IV answered that it is all those things combined, by "minimal" he only meant that the proposed ordinance meets the state's requirements to establish an enforcement process. Betsey added that this ordinance does go beyond the state minimum, this one includes single family. Jerry IV clarified that, while inspections of single family homes aren’t required in SBC, this proposal will cover all.
Gino Funicella said it’s the process that bothers him. He saw 160 people stand up and vote for enforcement at last year’s Town Meeting. If this fails, we go back to what we have now which isn’t enough. Think of process, law, and what the people voted for last year. He said that the objection to enforcement was that it was costing us too much money, and the person may not have been qualified.
John Pietkowicz then spoke and said the Building Inspector may not be qualified to make the decisions. Is he a licensed structural engineer, licensed electrical engineer, plumber, gas fitter, etc.? It may be too costly to have a fully qualified inspector. Scott stated the Building Inspector doesn’t need to be an engineer, just know how to interpret the code and ensure the construction adheres to code. John says the code doesn’t go into detail. Frank feels the building inspector can make a judgment in this instance, if more detailed than he’s qualified for, he can call in an expert to go over it with him/her. Huntley said that Andy calls in assistance if he needs it, either the state or local expert.
Peter Benson spoke and said the inspector doesn’t cost the town, it’s the homeowner that pays the fees. He has seen that the inspector is objective, catches things that may not be seen by contractor, views as investment not a cost. Jerry III felt the fee is for administrative costs, not the building inspector. It puts the idea that codes will have to be adhered to and that they are indemnified from errors. We need to have a process for people to comply with. Scott feels the inspector adds another level, but may still not be perfect, it could be false assurance.
Dick Badger asked if the $10,000 exemption in Section 16 will be gone with the new ordinance in place. The answer was in the Zoning Ordinance no, in the building ordinance yes. If building one’s own home does this mean they can’t live there until it’s finished? If you are installing a bay window, does the whole house have to be brought up to code? He was given the answer no, just for what the permit was issued for has to be up to code.
Huntley Allen said that Jerry IV can issue a temporary certificate of occupancy which enables you to live there if you have functioning plumbing fixtures.
Phil Davies said that if you replace more than a certain percentage of the home, you may have to bring whole structure up to code, that information is in the State Building Code regulations. He feels that our current Building Inspector is doing a great job for the Town, contractors and home owners.
Scott closed the first hearing at 8:30pm.
Betsey would like to make a couple of amendments, the first being one to address Dave Mason’s concerns. Sarah felt an informational sheet to voters would address Dave’s issue on adopting the SBC.
Denise Sacshe says adopting enforcement of it would clarify; the word enforcement needs to be in each of the first 3 paragraphs.
Edith Houlihan asked if the SBC is different than Jackson building code at this point? Scott answered no, that is what is confusing and misleading. Dave Mason felt we need to make clear that the enforcement is what we are adopting, not building codes, we already have them.
Jerry III said we need to disclose that the state does not require enforcement, just that we adhere to building codes. Jerry IV said we need to move something forward, and not rely on the status quo; that puts the town in serious jeopardy of Red Fox fire type issues. We need to go forward. Scott asked if he was okay with leaving the wording, and putting a descriptive paragraph with it. He said yes.
Betsey proposed the following wording be added to 1st paragraph, in accordance with both Dave’s and Denise’s suggestions: The Town of Jackson, pursuant to RSA 671, hereby adopts a process to enforce the New Hampshire State Building Code (NHSBC) and also to establish a Town of Jackson Building Code which incorporates the NHSBC[…]. Sarah seconded, all were in favor. The motion passed unanimously.
Betsey proposed a second motion, to address Dick Badger’s concern about temporary occupancy. RSA 676.12 states that the Building Inspector may issue a temporary occupancy not to exceed 30 days, renewable. It was agreed that, because it’s already in the RSA, it is not needed.
Vote to recommend: Frank asked if the selectmen voted officially to recommend the proposal or not? It has not been officially voted, but Jerry IV said all three would support this proposed ordinance.
Scott moved and Sarah seconded to recommend the Jackson Building Ordinance with the amendment proposed. All were in favor, none were opposed. The motion passed unanimously.
The 2nd Public Hearing began at 8 :45. To consider a proposed amendment to exclude single family residences construction from the permitting process. Scott stated he had spoken with Peter Malia, who indicated that unless there is a motion to rescind the amendment by the prevailing side of the vote, it has to go forward as originally voted. Unless the board came up with other language, the amendment would add a “n” at paragraph 7, including single family residential construction in the list of exemptions from the permitting process.
A motion to make that textual change was voted down at the last meeting, but, relying on discussion with town counsel, we are still bound to put it on ballot. Frank said we have yet to vote on the language as to what the proposed amendment would be. Scott read Peter’s reply: "[...] after the vote [my] legal opinion is that, if the warrant article passes (in substantially the same form as it is now written), paragraph 7 can be amended by adding subparagraph "n" that simply says: n. Single family residential construction. An additional vote by the Planning Board to do so is not necessary."
Dick Badger asked if the proposal would amend the new ordinance or current one. Scott answered that, if ordinance passed, this would apply to new ordinance. Further, if this ordinance does not pass, the amendment would not apply to current process.
Huntley said that people were shocked to think Jackson may not have residential inspections in the future. He recalled hiring an independent inspector to make sure a property would be safe. Scott said when he spoke with attorneys at the LGC they were surprised that, in a Town the size of Jackson, the Town does inspections for residences now.
Peter Benson feels we are working around what people voted for last time. This issue comes up every year because people on the board don’t like what was voted through before. Gino said there are reasons for building codes, safety reason, and codes were implemented to save lives. Voters said they wanted it last year; are we going to vote for this every year? Sarah told him that this particular amendment hasn’t been voted on or approved yet.
Edith Houlihan feels that our process so far works, and that it is short sighted to not have single family residences inspected for huge safety concerns and liability. A lot of things could be below code. Roger Aubrey, talking about licensed people doing work, said work on single family homes may be done by a homeowner who may not know how to do it properly. Joyce Allen asked, if someone did their own work and was supposed to meet the building code, how that be determined?
Dick Badger said it is the board’s job is to put out what Peter Malia stated, with its recommendation, yeah or nay. There are two sides, let people vote on it.
John Pietkiewicz asked, if someone applies for single family home, does it have to be permitted if this second proposed amendment passes? Scott said no permit needed for building code compliance, but would need one for zoning ordinance compliance. John feels it’s a funny thing to do one without the other. Basic life safety issues need to be there along with zoning compliance.
Betsey stated she wished to contest what Peter Malia said about the need to include this second amendment. Frank feels its planning board responsibility to ensure public safety.
Scott closed the public hearing.
Frank asked if John and Dick would reconsider their September vote. Dick stated he feels that you need to let people decide; if you don’t put it on the warrant, you muzzle the public. John concurred.
Betsey asked how RSA 675:3 “any proposed… ordinance… as proposed by a planning board…" can be consistent with a proposed amendment not recommended by the planning board. Scott doesn't feel it's inconsistent to allow voters to choose even if the board doesn't recommend a particular choice. Based on the opinion of town counsel, and the previous vote by the board, he also feels it’s what the board now must do.
Scott move to recommend the amendment to exclude single family residential inspections, in section 7 of the proposed Jackson Building Ordinance. In favor to recommend exclusion were George Howard, John Allen and Scott Badger. Opposed to the recommendation were Sarah Kimball, Betsey Harding, Frank Benesh and Dave Treadwell. The Warrant article will go on the ballot, indicating the vote results, 3 in favor and 4, opposed.
Feb 4th will be the next meeting to include Public Hearings: 1) on a 3 lot subdivision request by Tony Simone and 2) a petitioned article, at 7 pm. Betsey inquired about members feeling on budget proposals, regarding the master plan. Having it prepared by North Country Council might cost approximately $15,000; that could be paid spread out over 2-3 year period. That does not include the cost of a build out study, which might be an additional $10,000. A survey would be reasonably inexpensive, around $300-500 to send out survey with the tax bills. Scott
and Frank stated they would choose build out over having the master plan professionally done. Sarah feels we are equipped to do the Master Plan, as we have done it before. We can us our own as a basis to update.
Frank said we’d need around $15,000 for build out, and Jerry IV said there was $6,900 in the proposed budget and asked if extra $15,000 would be separate warrant article. Betsey said it was her understanding that the RSA required Master Plan funding to be a separate warrant article. Jerry IV will write the warrant article and send draft to Betsey to edit and ok it.
Petitioned article is to rezone route 16 to rural residential from village district. The Board decided to hold the next planning board meeting on February 4, 2013.
John moved and George seconded to adjourn, all were in favor. The meeting adjourned at 9:35pm.
Ella Cressy,
Secretary
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