REGULAR MEETING & PUBLIC HEARING
TOWN OF JACKSON, NH
PLANNING BOARD
Monday, February 4th, 2013 – Jackson Town Office
MINUTES
Call to Order: Scott Called the meeting to order at 7:00pm
Roll Call: Regular Members Present: Scott Badger, Chair, Frank Benesh, Dave Treadwell, John Allen, Selectman’s rep, & Sarah Kimball. Betsey Harding let Scott know that she would not be in attendance.
Alternate Members Present: George Howard & Dick Bennett. Larry Seibert let Scott know he would not be in attendance. Daren Levitt and Mike Mallett were not in attendance.
Members of the Public Present: Hank Benesh, Bea Davis, Bob Davis, Kathleen Sullivan Head, Gino Funicella and Tony Simone,
Voting Determination: George will be voting for Betsey, and Scott received a letter of resignation from Ray Abbott, so Dick will be voting in his place tonight.
Minutes of the January 3rd meeting were discussed. Scott asked if there were any corrections or comments for these minutes. Sarah moved and George seconded to approve minutes as presented. All were in favor and motion passed.
Minutes from the Public Hearing of January 17th were discussed. George moved to approve Dick seconded. All were in favor motion passed.
Public comment concerning items not on the agenda. Gino asked that we not have the Planning Board meetings the same night of the selectman’s meeting.
Public Hearing – Proposed Subdivision: Tax Map & Parcel Number: R12, Parcel 55 on Eagle Mt. Road owned by Anthony, Gerald & Eugene Simone.
Anthony Simone was there to represent the owners. He let the board know that he and his brothers were successful in deeding land to the Upper Saco Valley Land Trust, as was the intention of the boundary line adjustment approved by the Planning Board in December 2013. Tony then presented a proposed 3 lot subdivision on Eagle Mountain Road and Adams Road. This subdivision is the second phase of the project which began with the boundary line adjustment.
Dick read through the checklist, which was determined to be complete. George moved to accept the application, and was seconded by Sarah. All were in favor of accepting the application. Sarah moved and Scott seconded to approve the subdivision request. All were in favor and the motion passed.
Hearing closed at 7:50pm
Public Hearing #2– Rte. 16 Petition: A petition submitted by the citizens of Jackson asking for amendments to the Jackson Zoning Map and Zoning Ordinance to change the zoning district within 500 feet on either side of Route 16 north of Eagle Mountain Road from "Village District" to "Rural Residential District".
Scott pointed out that as this was a petition, the board can not make any changes to the proposed amendment but can only hear comments and vote to recommend, or not recommend
The first comment came from Bea Davis who felt the land should remain as Village District so that property values aren't reduced. She added that because there is a river on one side and steep slopes on the other, Rte 16 north of Jackson is unlikely to see much commercial development anyhow. Frank Benesh suggested that the land might actually be more valuable for residential development, but as such, would be diminished as commercial development occurred.
Frank commented that preserving Rte 16 is called for in the master plan and, therefore, should be pursued. As a resident on Rte 16, he also prefers that there not be any future commercial development. Other residents on Rte 16 echoed Frank's comments, especially his desire to not see any commercial development occur. Dick Bennett noted that in the 2003 master plan, 63 out of more than 300 respondents favored rezoning, and questioned whether that was really a mandate.
Jeff Maynard, also a resident on Rte 16, didn’t have strong feelings either way regarding commercial development along 16, but felt that it was important to the character of the town for the village area to maintain its open space and not lose it by forcing any and all commercial development to occur there. Frank stated that he would support a change in zoning to allow lodging development outside of the current Village District. It was also noted that because of flood plain issues, much of the open space in the village (largely comprised of the golf course) couldn't be developed anyhow.
Scott stated that in previous Planning Board discussions on this matter, the larger concern was strip mall type commercial development, but felt that this type of development was unlikely because of both the topography and the lack of sufficient traffic. He added, though, that use of the land for non-retail businesses might be more feasible and, in his opinion, would not significantly reduce the natural appeal of the area. He feels that another important aspect of the character of Jackson is its community, and to protect that, Jackson should be looking for ways, including commercial development, to attract families and allow for residents to both live and work in town.
Sarah Maynard noted that on the Hutmans Heights property, there once was a general store and gas station, and it wasn’t that bad.
Jeff Maynard commented that most of the current residents were at the meeting and supported the zoning change. He added that the board could always change it back in the future if commercial development along 16 were deemed necessary or desirable.
The hearing was closed at 8:50pm.
Scott called for a vote of recommendation. Those in favor: Sarah, Frank Dave. Opposed: Scott, John, Dick, and George The vote was 4-3 to not recommend.
Old Business Frank asked John, since he voted in favor of the single family residential construction exemption amendment of the Building Code, is that the consensus of the current Select Board. John said he thinks that may be true, but can’t speak for the others.
New Business: George stated that his term ends in March and he will not be asking for reappointment. He also asked to read a statement entitled, The Minority Report (which follows) that presents his thoughts regarding the proposed Building Code and his reasons for supporting the single family residential construction amendment.
Scott passed around the copy of Ray Abbott’s resignation letter to board members. John would like to thank Ray for his years and years of service.
April will be next meeting
Adjournment: A motion was made by George and seconded by Dave Treadwell. All were in favor and the meeting adjourned at 9pm.
Respectfully Submitted,
Ella Cressy
Minority Report
During the public hearing on Jan 17th on the proposed amendment to the proposed Code Ordinance the Board voted 4 to 3 not to recommend the article. As a member of the minority, this report provides rational supporting recommendation for the article.
A. First the rights of the individual as guaranteed in the State Constitution are compromised.
1. Article 2 of the State Constitution states in part that “All men have certain natural, essential, and inherent rights-among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting property; and in a word of seeking and obtaining happiness”.
2. Article 3 provides that “When men enter into a state of society, they surrender up some of their natural rights to that society in order to ensure the protection of others and without such an equivalent the surrender is void.
3. As an individual’s home does not poses a hazard to others hence Article 2 remains the guiding source. Further the homeowner is ultimately responsible for the protection of the home as government agencies are not held liable.
B. The development of State statues regarding the SBC honors the individual rights.
1. The State gave municipalities one year to review the enforcement process during which was NOT requirement to enforce the SBC.
2. The State did not mandate that this Code be enforced and would not permit or encourage the State to initiate or assume an independent role in the administration or enforcement of this Code.
3. In those municipalities that have not adopted an enforcement mechanism, construction of one and two family dwellings did not require State involvement.
C. Under our current and proposed ordinances the homeowner is in the untenable position of being held ultimately responsible for code compliance but no authority as how this will be accomplished and has NO legal recourse against the Town.
D. CRAFTSMAN REQUIREMENTS
1. Electricians and plumbers are required to be licensed to assure compliance with all applicable codes as specified in the SBC. Failing to honor this designation negates value of the designation.
2. Builders are also bound by State law to comply with the SBC.
3. The signature of these craftsmen warranting the work complies with the applicable Codes holds more creditability and legal exposure than government agencies.
E. Creditable historical data does not support the basic cause of single family home safety issues to code infractions.
F.
1. The proposed Code Ordinance has significant unanswered questions as to the enforcement process. The major input during the two hearings was the need for inspections. However inspections are only one part of the enforcement process which includes design approval, permitting, inspection and certificate of occupancy; the inspection occurs only after a permit is issued and the permitted work has been completed. The extent of permitting requirements has not been addressed and remains a major unknown. The requirement for a permit will have a major impact on the cost and time for repair, alteration, or construction for all residence in particular the owner occupied homeowner as they are the majority who will be impacted. The permitting requirements
will be only to be determined AFTER the ordinance is implemented.
2. Section R105 Permits of the IRC provides the requirements for permits in R105.1 and work exempt Section R105.2 which is included in part in the proposed ordinance.
a. Required permits are under Section R105.1 states an owner or agent who intends to construct, enlarge, alter, repair, move, demolish or change occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert, or replace any electrical, gas, mechanical or plumbing system, the installation of which is regulated by this code or cause any such work to be done shall first make application and obtain the required permit. This includes swimming pools, manufactured homes, modular homes and exterior sign. There are indications that the State may impose further
requirements for permits.
b. The issuance of the permit is contingent on a design being approved however the criteria as to the extent/detail that will be required for design approval has not been addressed and remains another major unknown. As well should the design be changed to what extents will it require approval and will the concept of design build be available? Further will site disturbance, a previous unresolved issue, be part of the design approval process where site preparation is required?
c. The Ordinance establishes the authority of the Building Inspector however there are no provisions in the proposed ordinance for the Inspector to develop administrative procedures to include but not limited to establishing the building permit application and permit, the procedures for processing the permit application, criteria for approving designs, procedures and checklist for inspections (for use by individuals as well as the inspector) and certificates of Occupancies. Without this requirement we have the potential to leave us with the current unwritten word of mouth process.
d. The $10,000.00 relief in our current Zoning Ordinance, nor any other such relief, will not be available under the proposed Code Ordinance as these type exemptions are less stringent than the SCB and hence.
e. There will be an undetermined cost to the taxpayer beyond that incurred by the applicant for the administrative implementation and conduct of the ordinance. There are no free lunches.
G. While the Board has the authority to empower government it has a higher responsibility to protect the rights of the individual. In this case a basic right of the individual to decide how they will be governed thus they must be provided the full extent of the authority being granted to the new Inspector by which we will be governed. The major voids noted above in the proposed Code Ordinance fail to meet this basic right.
H. Finally there is the issue of our preserving our cultural heritage which is a requirement of our Zoning Ordinance. Governance is a key aspect of our heritage with the rights and responsibilities of the individual the foundation of this heritage and protected in our State Constitution. Mandating the enforcement on the owner occupied single family homeowner is in stark contrast to this heritage. It was noted that most communities in New Hampshire the size of Jackson honor this heritage and have not enacted the SBC process. In my 30 year career I lived in several US communities as well as a number of foreign countries where the underlying guidance was always understand and honor the local culture.
I. Summary. The proposed Code Ordinance requires a compromise of our Constitutional rights, fails to respect the current licensing and legally accountable requirements of crafts, has several major unknowns to include costs to the Town and the individual, and does not honor our cultural heritage as in other towns our size.
J. Recommendation. Given the issues mentioned above it is prudent to take a graduated implementation of the SBC enforcement similar to the State’s one year period to implement the SBC enforcement legislation. This will give the Town the opportunity to address the lapses in the current proposal to include the costs involved, flesh out the procedures, and most important provide our residents the complete/full enforcement process to prepare them to make a knowledgeable decision at the next vote. This avoids the unintended consequences of “pass it to find out what’s in it” problems in the past. Thus I recommend:
1. Enact the Proposed Code Ordinance.
2. Enact the proposed amendment that relieves the owner of owner occupied single family homeowners from the provisions of the Code Ordinance. These owners must make applications for construction under our current Zoning Ordinance.
3. The planning Board in conjunction with the Board of Selectmen prepare an amendment for the 2014 warrant to provide definitive responsibilities for the owner occupied single family home along the lines of:
"The Owner of an Owner Occupied single family home planning for any construction has the option of:
a. Make application in accordance with the Zoning Ordinance and take responsibility for meeting the performance standards of the State Building Code and certify the permitted work has been completed in accordance with all applicable codes.
b. Make application in accordance with the Town of Jackson Code Ordinance."
George Howard, Alternate
Jackson Planning Board
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