Jackson Board of Adjustment
June 17, 2009
HEARING FOR AN APPEAL OF AN ADMINISTRATIVE DECICISION
Minutes Approved: July 15, 2009
Members in Attendance: Frank Benesh, Ted Brown, and Helene Matesky. Alternates attending the meeting were Joan Davies, Paul Belluche, Joan Aubrey and Lisa Macallister. Susan Way is the recording secretary. Others attending the meeting were David Mason, Gino Funicella, Bea Davis, Larry Siebert, Attorney Chris Meier, Lorraine Seibel, Pamela Sherry-Landess, Warren Schomaker, Bobbi Meserve, Shana Myers, John Collins, Greg Buxton, Hank Benesh, Martha Benesh, Sean Cowland and Holly Lewis. Debra Crowther and David Urey called to say that they were unable to attend.
The hearing began at 7:05 PM with Frank Benesh, Chairman of the Board of Adjustment, presiding. The three members present will vote. Joan Davies and Lisa Macallister will be the voting alternates.
Agenda: Hearing for an Appeal of an Administrative Decision
2009-02-Holly Lewis Property at 191 Tin Mine Road, MapV-08 Lot 30.
HEARING FOR AN APPEAL FROM AN ADMINISTRATIVE DECISION—2009-02—Lewis
The hearing will follow our standard procedure:
1. The applicant will present the case for the appeal. During this time only the board may interrupt to ask questions.
2. Those in favor may speak.
3. Those opposed may speak.
4. Public comments
5. Rebuttals from both sides
6. Comments.
After this, the Public Hearing will be closed. The Board will try to vote and give the results on the same night but it depends on the time and deliberations whether we finish tonight. You may stay and listen while the Board deliberates to make a decision but there will be no further public input unless the Board has a question. If it gets late, the hearing may be adjourned to a later date.
Helene Matesky, Clerk for the Board of Adjustment, stated that the abutters were notified by certified mail. The Public Hearing notice was published in the Conway Daily Sun, posted on Jackson E-news and at the Town Office.
Frank Benesh, Chairman of the Board of Adjustment, made the following statement: This is a hearing for an appeal from an administration decision. The Board of Selectmen sent a letter to Holly Lewis denying the continuation of a building permit for failure to provide requested information on three conditions. These are:
1. List of plumbing deficiencies and written plan for corrections prepared by a NH licensed Master Plumber.
2. Date and time for owner’s electrician to meet with Bergeron Technical Services or State Electrical Inspector.
3. Updated Building Permit application that accurately depicts the interior floor configuration including
The following timeline was presented from information provided by the applicant.
Building Permit was issued to Holly Lewis on July 11, 2005. It was extended to July 1, 2007 and again to July 2, 2008.
June 6, 2005 – The septic system approval was received for 2 bedrooms with a note that construction may involve dredging and filling wetlands.
Andy Chalmers of Bergeron Technical Services reported in August 2008 that the building permit states the home is approximately 3000 square feet of living space and an additional 1000 square feet of walk-out basement. However, the home as built exceeds information provided to the town. He also stated that the home has never been inspected since the inception of the permit.
In December 2008, in a letter to Ms. Lewis, Andy Chalmers wrote that construction on the property started prior to NH’s adoption of the residential building code (IRC) and is exempt from complying with the minimum construction standards. However, he wrote that the homeowner is not exempt from compliance with electrical code, plumbing code, and laws associated with these trades at the time the building permit was issued in 2005. He also stated the property is not exempt from Jackson Zoning Ordinance and septic system regulations. In addition, as a result of his December 2008 inspection, he cited numerous plumbing code violations; a possible electrical code violation, and a second dwelling unit in the basement. He further indicated that there appear to be three or four bedrooms.
Chairman Benesh asked Holly Lewis to speak. Ms. Lewis was represented by Attorney Chris Meier of Cooper, Cargill and Chant. Attorney Meier distributed a letter outlining her position. He contends that the Board of Selectmen has no authority to enforce plumbing and electrical codes. He contends that the Board of Selectmen has no authority to enforce plumbing and electrical codes. He stated that, in his opinion, the town has to vote at a Town Meeting to adopt a local enforcement mechanism.
Helene Matesky pointed out that RSA 155 A:3 enacted in 2002, states that at a minimum, towns have the authority to review and accept appropriate building plans, issue building permits and inspect the work authorized by those permits.
Holly Lewis reported that in 2005 she had a conversation with Dale Landess (the town building inspector at that time) about inspections. According to Ms. Lewis, Mr. Landess told her to go ahead with the construction and an inspection would be done when the work was all finished.
After a visit from Bergeron Technical Services (BTS) she made the recommended changes to the electrical and plumbing systems. It would now be necessary to tear out the finished work to make any other changes. Ms. Lewis questioned if other new construction projects were subjected to so many re-inspections. She feels that every visit from BTS involves a change in the reason that the building permit cannot be reissued.
Attorney Meier keeps reiterating that the Selectmen do not have the authority to not allow a building permit on the issue of inspections. He also stated that since the building permit application only calls for plans for the first and second floors, the Board of Selectmen have no authority to request plans for the living space in the basement.
Ms. Lewis had asked that the town supply her with a list of code violations. BTS says it is not their responsibility and that it is the responsibility of the homeowner who is acting as a general contractor. (Subsequently Helene Matesky, Paul Belluche, and Dave Mason all mentioned that it was not the town’s responsibility to ensure a contractor complies with existing codes.)
Ms. Lewis also contends that the town is disputing the qualifications of her partner who has done the electrical work. He is licensed in New Hampshire, Vermont, Maine, Massachusetts, Oregon, and Washington and does work now on a project in Massachusetts. It was mentioned in the Selectmen’s minutes that she was using an out-of-state electrician.
During Ms. Lewis’ testimony, in response to a question from Frank Benesh, she was unable to state that the building currently complies with the State Plumbing and Electrical codes. She did maintain that she has corrected all deficiencies indentified by BTS.
Testimony was then taken from Mason and Funicella from the Board of Selectmen and other interested parties.
Selectman David Mason explained the Board of Selectmen’s request. They would like to simply have the information requested, so they can make a determination about compliance with Jackson Zoning and appropriate codes. He feels that the town does have the authority under RSA 674:51 and RSA 676.11 to enforce inspections. He further went on to reference RSA 676:13 stating that the building inspector shall not issue any building permits which will not comply with zoning ordinances or building codes. He feels the Board of Selectmen have the authority and the obligation to enforce all codes especially when public safety issues are involved.
Helene Matesky asked if the Selectmen were following standard procedure, or if Ms. Lewis was being treated differently than other applicants? Selectmen Mason replied that the only difference in this case is that the owner has decided to act as her own contractor.
Gino Funicella says that re-inspections are standard procedures and he knows that there have been several. Paul Belluche asked if anyone had re-inspected this building recently. Dave Mason said that since there is no permit, another inspection has not been arranged.
Andy Chalmers of BTS stated there were numerous violations of the State Plumbing Code at the property.
There was a statement made by the applicant that Bergeron Technical Services would not issue a building permit. Selectmen Mason pointed out that Selectmen issue Building Permits and not BTS.
Lisa Macallister asked if plans were supplied at the time of the building permit application. Paul Belluche stated that there were drawings submitted but at that time the basement was not included. According to Ms. Lewis’ statement she asked BTS if it would be possible to finish an apartment in the basement area if her mother needed to be there. In her statement she said the basement is the same as it has been, and not finished yet. There has been some furniture moved in.
There was a question about this being a non-conforming lot. This lot has been designated as non-conforming due to the soils report for the septic system. Selectman Mason stated that he believes it is only possible to put a 2 bedroom house on this lot given the soils.system in this area. The applicant has only received septic system approval for a 2- bedroom house.
ABUTTERS
Chairman Benesh asked for input from abutters. At this time Shana Meyers and Larry Siebert wanted to comment. Since they were not abutters, they were asked to wait until the Public Comment section.
Greg Buxton spoke in favor of the construction. He owns property directly across the street and has watched the construction process. He did state that the work is being done very professionally. The building is an asset to the neighborhood. He sees no issue with the parking spaces.
OTHER COMMENTS
Shana Meyers wanted to speak under RSA 676:7- an interested citizen and was granted permission to do so at this time. She feels that the Lewis property is an improvement to the neighborhood. She asked that Ms. Lewis be commended on using recycled materials.
Larry Siebert has concerns about the Selectmen’s letter of April 30. He questions the ever changing reasons for rejecting the application. He says that this is a beautiful home using recycled materials and excellent craftsmanship. There is an innovative green heating system and he questions if anyone can do a proper inspection of this system.
REBUTTALS
John Collins, Ms. Lewis’ partner spoke on the construction process. He stated that Mr. Landess had told them to finish the work without inspection. At this time it would be very difficult to tear out all the construction.
Attorney Meier says that the town should not go back on this agreement. He feels that the Board needs to check with their counsel on the enforcement issue.
Ms. Lewis stated that at the time the electrical work was being inspected, the work had not been completed. The inspection done at that appointment was supposed to be for re-evaluation. If they had known that work had to be done, they would have had it finished before asking for the inspection. There was a list of plumbing work that needed to be done and she had requested that list from Bergeron who refused to send one. Ms. Lewis stated that a Master Plumber did come in and made the changes as she explained in the letter to the Selectmen in January. However, when questioned, she declined to provide the identity of the plumber and additional information to the Board. In 2005 there was no need for a letter of occupancy.
There was no further discussion. Chairman Benesh closed the hearing at 8:45 PM.
DELIBERATION
Helene Matesky pointed out that there are 69 pages of paperwork submitted with the application to the Board of Adjustment. She explained that the Board reviewed all the paperwork and she does not understand why Ms. Lewis will not meet the current requests from the Board of Selectmen. She feels the applicant should not continue to focus on earlier misunderstandings, but rather supply the information requested in the Board of Selectmen’s April 30, 2009 letter indicating that the applicant has complied with 2005 Plumbing and Electrical Codes. In addition, she does not understand why the applicant does not supply updated building plans because the original plans submitted with the 2005 Building Permit application were incomplete and inaccurate.
Paul Belluche wants to discuss the enforcement issue with Town Counsel. He points out that it is necessary for the Selectmen to do inspections to keep up with any construction changes from the original plans. Selectmen can not sign an application when they know that there are violations.
Ted Brown wondered if there is a grandfathering issue. Are we considering a renewal of a building permit or issuing a new one? We need to let this rest and review it at a later meeting.
Lisa MacAllister feels that it is not too much to ask to get the basement plans submitted.
Chairman Benesh suggested that we come back next week for further deliberation and perhaps a decision. He will check with the Town Counsel.
THIS MEETING WILL BE RECONVENED ON JUNE 26, 2009 AT 7 PM AT THE TOWN OFFICE BUILDING.
The meeting was adjourned at 9 PM.
Helene Matesky wanted to review the minutes of the last meeting. Chairman Benesh will put this on the agenda for the next meeting.
Respectfully submitted -
Susan G. Way,
Recording Secretary
A complete text of the By-Laws and other Board of Adjustment information can be found on jacksonvillage.net under Boards and Commissions.
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