Selectmen’s Board Meeting
December 21, 2015
Present: John Allen, Chairman; Bob Thompson and Bill Lockard, Selectmen
Visitors: Town Office Administrator Julie Atwell, Town Administrative Assistant Julie Hoyt, Police Chief Doug Jette, Fire Chief Jay Henry, Building Inspector Kevin Bennett, Town Clerk/Tax Collector Karen Burton, Treasurer Kathleen Dougherty, EMD Tom Grieg, Videographer Hank Benesh, Bea Davis, Bob Davis, Stan Weiss, George Howard, Joyce Allen, Huntley Allen, Gino Funicella, Nancy Davis, Pat Kelley, Sarah Clemons, Roger Aubrey, Penny Miller, Gil Forest, Brian Walker, Denise Sachse
Chairman John Allen called the meeting to order at 4:33 p.m.
- Selectmen’s Meeting – December 10, 2015 The minutes were approved as written.
- Budget Hearing #1 – December 10, 2015 The minutes were approved as written.
- Fire Department Listening Post – December 10, 2015 The minutes were approved as written.
- Update on December 10, 2015 Action Items
- Upcoming Selectmen’s Meeting Dates The January meetings are set for the 14th and 28th at 4:30. The final Warrant Article Hearing will be held after February 2nd if anything comes up.
- ZBA Appeal – Jerry Dougherty Jerry would like to discuss the Caldwell v. Jackson case; the court’s decision reversed the ZBA’s decision and remanded the case back to the ZBA. Without Zoning Board member input, the ZBA Chair authorized the town attorney to file a Motion for Reconsideration. The attorney had said the case would run five to seven thousand dollars; through October the amount spent was twelve thousand four hundred eighty dollars. Jerry’s not sure the people of Jackson understand that their money is being spent on a negligible encroachment into the setback. Additionally, if the Motion for Reconsideration is not granted the Zoning Board has indicated that it may appeal again. The Selectmen are charged with signing the checks and approving how money is spent and Jerry recommends the Board stop
this. He noted the porch isn’t detrimental to the abutters; every one of them has a deck or walkway into the Right of Way (ROW), not just into the setback. This is not an appropriate way to spend taxpayer money. He reiterated that the Selectmen have the responsibility and a way to stop this.
Chairman Allen is not sure what the Board’s responsibility is here and Jerry noted the Board is charged with signing the checks; the ZBA Chair doesn’t decide to spend the money, the Selectmen do. Mr. Caldwell is five feet, eight inches into the setback and fighting that is at twelve thousand four hundred eighty dollars and counting. Chairman Allen doesn’t disagree but he’s not used to the procedure; if the ZBA decides to fight this he doesn’t see how the Selectmen can not pay for the lawyer to represent the town; how does the Board say the Selectmen do not want to go to court when the ZBA does. Jerry noted the ZBA is not authorized to spend money, the Selectmen are; the ZBA doesn’t have taxing or spending responsibility. He’s relatively certain folks won’t be happy to hear
the town spent twelve thousand dollars to make Mr. Caldwell remove the deck.
Regarding the ZBA’s Motion for Reconsideration, he urged the Board to look at the emails; the ZBA Chair agrees that he solely authorized the attorney to do this without notifying the ZBA members. Mr. Malia prepared two motions that start “Now comes the Board…” which is not true. The ZBA did not do this and Jerry’s not sure what would have happened if there was a meeting to discuss the court finding. He’s not sure how the ZBA members would have voted. This expenditure of monies violates the Right to Know (RTK) laws; the decision to proceed was made unilaterally. Penalties for violating RTK laws range from fines up to twelve hundred dollars and jail time to requiring board members to have education in RTK laws at their own expense.
Selectman Thompson asked if the ZBA ever gave authorization to the Chair to make these kinds of decisions; Jerry feels the ZBA did not give ex parte authorization and even if that was the case, the ZBA still has the obligation to hold a meeting to meet RTK laws. The ZBA was given information about this after-the-fact and the emails prove that. The decision from the court was received on November 20th; on December 11th the ZBA Chair advised the ZBA of the finding and he alone authorized the Motion for Reconsideration. Selectman Thompson asked if Jerry’s saying the ZBA heard about this for the first time on December 11th which Jerry affirmed. In addition, Mr. Benesh had already authorized Mr. Malia to go forward; there were minor changes to it; there was
passage of time so the ZBA Chair could have called an emergency meeting. Jerry noted none of that matters; he wants to know if the Selectmen approve of that money being spent for this purpose.
Selectman Lockard noted even if the Selectmen said the town is not going to pay this money; the town is already obligated to the twelve thousand four hundred eighty dollars. Jerry reiterated the town has already paid that amount through October; he doesn’t know what the bills are after that. Jerry noted it would seem that Mr. Malia is fighting this to make a point in case law for the State; it should be on his dime not Jackson’s. Do the Board members believe Jackson should pay fifteen thousand dollars to have Mr. Caldwell remove his deck?
Stan noted he doesn’t know anything about the case but what Jerry says makes sense. What hasn’t been said, however, is Jerry’s talking about setting the precedent of saying “we’ve spent enough money so we don’t want to pursue upholding the zoning laws; you can probably go ahead and build without meeting town zoning laws because the town will only spend a set amount”.
Gino noted the information was sent to all members of the ZBA; he’d like to extend the opportunity to the ZBA Chair to explain this whole situation. Gino’s not sure how many meetings Mr. Dougherty went to but this goes back a long way and there are currently things going on with the Planning Board regarding setbacks. The Selectmen have never stopped a Department like the ZBA from proceeding on a case. This is a case where the person had a plan that was put out there and was approved and then he built a deck and then came back and asked about adding a ramp. Whether the neighbors have built into the ROW and/or setbacks is not a reason to do it. He urged the Board not to step into the case the ZBA and the attorney think should go forward; there were five people at the ZBA meetings. He
thinks the Board should have a meeting with the ZBA before stopping this action.
Jerry noted Gino is wrong; the ZBA’s responsibility is not to protect the Zoning Ordinance, it is to protect the public good. Is the harm to the public greater than the harm to the applicant? The court said it is not greater; the encroachment is so minimal as to be negligible. The judge reversed the ruling regarding Substantial Justice and with respect to the handicap access, the ZBA said Mr. Caldwell could build it elsewhere but the law says where the applicant wants to put it is reasonable. The ZBA doesn’t protect the Zoning Ordinance; protecting the Zoning Ordinance is the purpose of the Building Inspector and the Selectmen; the purpose of the ZBA is to serve as an outlet and safety fuse for when an applicant wants to do something that is prohibited; they protect the public good. The
fifty foot setback, established in 1974, was to provide for adequate snow removal, off-street parking and further expansion. The judge points out the remaining setback is more than sufficient to do that. The Planning Board is offering an amendment; instead of a fifty foot setback from the road, it will be fifty feet from the center line which will be thirty seven and a half feet; the Building Inspector thought thirty five feet would be okay. The ZBA Chair thought the center line would be good; it will make the setback much easier to determine. This amendment was approved unanimously by the Planning Board and will be offered to the public to decide. Chairman Allen noted the Board has to have a conversation with town counsel on this; tonight is not the time to have a full-fledged discussion about this.
Selectman Thompson noted the ruling was issued on November 20th. If the email chain and what Jerry is saying are to be taken as evidence; nobody on the ZBA was notified until December 10th when Chairman Benesh said he apologized for not forwarding the information earlier but has made the decision to move forward. Selectman Thompson gets the upset there; it would be good for the Board to invite the ZBA to come to a meeting and explain how this has gone. It might be less non-conforming; Selectman Thompson doesn’t know if the encroachment is negligible. If there are decisions being made without the full board it is something the Selectmen should have a conversation about. There was an initial estimate of five to seven thousand dollars and the bill is already at twelve. He wondered if the Board is okay with that. Selectman Lockard feels the Board should talk to the ZBA before going to town counsel about stopping the case. He’s not comfortable with saying the town is not
going to pay his bills from now on.
Jerry has two things to tell the Board in the spirit of full disclosure. He spoke with Mr. Caldwell on December 17th around 2 p.m.; Mr. Caldwell asked what Jerry was going to speak about and Mr. Caldwell had no objection to Jerry speaking to the Selectmen. Jerry is not sure if he’s violated RSA 675:4-a by contacting Mr. Caldwell.
He reiterated that the Selectmen are the people who tax and spend, not the attorney and not the ZBA. If the Selectmen think this is appropriate then they should go ahead and do it. If the Selectmen read the record and look at the property, Jerry doesn’t see how the Board can come to any other conclusion that this is a travesty.
Selectman Thompson asked if there is a date for another court hearing; Jerry noted Mr. Malia is waiting on the Motion to Reconsider. If the court won’t reconsider its decision then the ZBA needs to meet to decide whether to bring this to the State Supreme Court. Jerry asked at the ZBA meeting last Wednesday and the indication was that the members couldn’t say that they wouldn’t. There is another ten thousand dollars; if Mr. Malia wants to prove a case in the court he can do it on his own dime not Jackson’s. The judge ruled on the case and it should be accepted.
Selectman Thompson noted the decision to move forward with the Motion to Reconsider was not made by the ZBA; it was made by one individual. It’s concerning. If this comes back as being heard before the Board’s next meeting, are the Selectmen okay with spending the money. Chairman Allen noted the Board can ask for a delay; he wants to hear the other side. Jerry thinks the Board should uphold what the court said. Selectman Thompson will contact the attorney to see where the bill stands and to make sure the bill is not continuing to accrue. Jerry is forwarding those emails to the court. Selectman Lockard noted if the Board needs to meet with the ZBA before the hearing then he would like to set up a work session; he’s very uncomfortable doing anything before talking with the
ZBA. Jerry let the Board know that he is alone on this. Peter will be contacted and if he says the Board needs to have a meeting then the Board will hold a public meeting.
- Police Report Chief Jette has only one item on his agenda: he has the honor and pleasure of letting everyone know Jackson’s third officer, Andrew Koplin, completed the Academy and graduated on Friday. He’s been monitored going back almost eight months; he endured most of his field training before he went to the Academy; he is working as a certified officer. Chief Jette would ask that Officer Koplin be granted the salary he was offered now that he’s met the requirements of the job. The Selectmen support that.
- Public Comment Gino is very curious about how many police Jackson has; there are three full time and two part time officers. Also, Gino heard that a woman was arrested for walking up on the Black Mountain property; she was booked and fingerprinted; are they afraid of her? He’s never heard of a Jackson resident being arrested and he heard she was arrested at Black Mountain for walking on the grass.
Penny asked if the police chief could comment on this; she was reminded this is public comment; the Board will put this on the agenda for another time.
Gino would like some elucidation; there was a guy on Thorn Hill Road who had a permit but not a complete one; the ZBA got ahold of him and took it to superior court and the town won the decision and he had to pay the town back; this proves to the Board that the supreme court is not a bad deal. Just because it is difficult and expensive, the town’s body at some time decided that they wanted that particular thing. It is up to the Selectmen and townsfolk to defend that right. If the Selectmen were to interpose themselves at this point and the entire ZBA quits then the Board will have a real issue; it’ll all be in the hands of the Building Inspector then.
- Weekly Report – Kevin Bennett Inspector Bennett reviewed activities since the last meeting including the following permits. There have been eight solar applications and there were eighty five permits issued this year.
- Building Permit 2015-82 Map V07 Lot 61 – (Owner – Graham – 17 Tin Mine Road) – Extend Building Permit – 2014-56
- Building Permit 2015-83 Map V07 Lot 129 – (Owner – Wasson-Seybold Trust– 116 North Hampshire Ridge) – Install Solar Panel System
- Intent to cut – Signatures Required Selectman Lockard, seconded by Selectman Thompson, made a motion to sign the Intent to Cut for Map R30, Lot 6 and Map R30, Lot 15A. The motion passed unanimously.
- Planning Board Resignation – FYI Selectman Thompson, seconded by Selectman Lockard, made a motion to accept, with regret, the resignation of Bea Davis from the Planning Board. The motion passed unanimously. Chairman Allen thanked Bea for being part of the Planning Board; her insight has been very valuable.
- Award from Google (added) Jackson has received an award from Google for being the Digital Capitol of New Hampshire. The letter notes that Jackson now joins the ranks of America’s cities in a digital economy.
- Traveling Boutique (added) Office Administrator Atwell has received a request from a vendor wanting to set up a vintage camper to sell goods out of in town. The vendor was directed to contact the Chamber of Commerce. There are no ordinances against this and the Planning Board has no authority either. Chairman Allen noted if this were set up on town property insurance would be required.
- New Hampshire Community Rights Network – Michelle Sanborn Chairman Allen hasn’t contacted her; he’d like her to come to another meeting. There is a recommended warrant article so there is a deadline.
- Public Comment Penny noted she had previously requested the Town Report include details about the vendors Jackson does business with and also listing out employees with each one’s benefits and wages. She would like to know if this will be done for the 2015 Town Report. Office Administrator Atwell noted the additional pages were not added to the report since all this is public information. Selectman Thompson suggested making a note of that in the Report. This information could also be printed out and available at the Office. Sarah asked if this information would be available when townsfolk come to pick up their books; it should be. Selectman Thompson wondered how many pages this would add; Office Administrator Atwell doesn’t know but there are a number of vendors. Chairman Allen asked what the
purpose of adding this information would be and Penny noted it’s a nice way to see what vendors are involved with the town and the wages and benefits for its employees. Right now the information includes all the wages rather than individually; she’d like to see a breakdown of wages and benefits per individual. The Board will see how many pages this would add; the Office may also be able to make it available online.
Gino noted, as a former Selectman, he’s on the town’s medical plan and there was a plan change. He’s received the information from the new group that handles Pilgrim and he’s found that last year he paid “x” dollars and this year he’s paying fifty dollars less but he has a higher deductible. He’s given to understand it has something to do with the tax on “Cadillac” plans. If the Cadillac tax is a federal item why is it any different with Pilgrim Health vs. Anthem? Selectman Lockard will try to answer this; the town looks at health care plans ever year. The Cadillac tax is part of ACA and a way to raise money. There has been an agreement reached in Congress to wait two more years but the town continues to look at ways to reduce the impact and there was significant
reduction in the tax on this plan over last year’s. Gino doesn’t think the town has a Cadillac plan. Selectman Lockard noted the Cadillac tax will hit plans at lower and lower and lower levels; this is an additional tax the town has to pay. He will be glad to talk to Gino privately about this.
Jerry asked that the Board consider speaking to Attorney Peter Malia for an estimate for the billing expected for continuing the Caldwell case.
The Selectmen’s meeting recessed at 5:30 p.m.
- Budget Hearing #2 The Budget Hearing was convened at 5:36 p.m. (see separate notes).
There being no further business, the meeting was adjourned at 6:38 p.m.
Respectfully submitted by:
Martha D. Tobin
Recording Secretary
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