Board of Adjustment
Town of Jackson
Minutes of the Meeting Held
September 2, 2009
Members in attendance: Frank Benesh, Ted Brown, Helene Matesky, Debbie Crowther, Joan Davies, David Urey, Paul Belluche. Martha Tobin is the Acting Recording Secretary. Gino Funicella was in attendance in the audience, as a member of the public.
The meeting was called to order at 7:02 p.m. with Chairman Frank Benesh presiding.
- Consideration of Rehearing by Holly Lewis – Chairman Benesh noted the Board needs to decide if Holly Lewis has standing for a rehearing and that her request was filed within thirty days. He stated she did. He reviewed the NH Office of Energy and Planning guidelines with the Board, including that there would be no purpose served in approving a rehearing, unless the applicant claims a technical error has been made to their detriment or can produce new evidence that was not available at the time of the first hearing. However, the board, and those in opposition to the appeal, should not be penalized because the applicant has not adequately prepared the original case and did not take the trouble to
determine sufficient grounds and provide facts to support them. The reasons for granting a rehearing should be compelling ones; the board has no right to reopen a case based on the same set of facts unless it is convinced that an injustice would otherwise be created but a rehearing should seriously be considered if the moving party is persuasive that the board has made a mistake. The Board needs to seriously consider if it made a mistake. If so, a rehearing would allow the Board of Adjustment an opportunity to correct its own mistake.
Clerk Helene Matesky noted that it is not mandatory that the same members who voted on the original petition must vote on the rehearing. However, Frank Benesh felt this would be preferable in fairness to the applicant. Board Members David Urey and Debbie Crowther recused themselves from voting, as they did not attend prior meetings on the case. Chairman Benesh, however, asked them to please give their input. Frank Benesh pointed out that state law requires that an applicant request a rehearing before proceeding to the court system. Paul Belluche noted this is just a formality. Holly Lewis was not in attendance, but did submit email correspondence regarding this case; it is as follows:
__________________________________________
Subject: Rehearing Letter
Date: Thu, 13 Aug 2009 12:16:12 -0400
~08/12/2009
~
Chairman of the Jackson Board of Adjustment
PO Box 268
Jackson, NH 03846
~
Dear Sir,
~
I would like to ask for a rehearing on the decision made in the appeal to the Jackson Zoning Board of Adjustment on the grounds that the matters determined in the decision that include the following be considered:
~
The extension that was requested with a inspection prior to the permit being granted and or extended~would have been more beneficial if the Inspection Service would have made the extension contingent on having an inspection done which would have provided a better basis to ~follow up any violations with an finial~Inspection to assure compliance. I apologize for not having the Inspection completed prior to the seven day deadline of the appeal. I had been working toward finding a more qualified~Inspection firm with whom I could get a fair inspection done with clear goals that work towards a more~positive outcome.~
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~The home passed the 2000 Plumbing code and 2005 electrical codes that were the required~standards set by the State and Town of Jackson. This service is being~considered by the Jackson Fire Dept for their Inspections so I am told; this Service offers a more qualified Inspector who is a Master Electrician and Certified Fire Protection specialist as well as a Certified Fire Inspector.
~
As far as the basement plans I would be willing to supply a plan to the board if a rehearing is granted. Had the previous Inspection Service not made errors in this process with respect to the first denial and the choice of changing inspections without notice and invalid violations~I feel~that the process would have been a more positive one.~ Thank you for your time on this matter.
~~
~Holly B Lewis
________________________________________
Chairman Benesh said he responded in an email to Holly advising her that a rehearing would be considered at the meeting of September 2, 2009 (tonight). He told her it would be helpful for her to provide any additional information that she felt had bearing on her case; the Board hasn’t received anything. Helene Matesky noted that perhaps Ms. Lewis is confused about the role of the Board of Adjustment. She pointed out that it appears that Ms. Lewis wants to give the Board of Adjustment her plans and other information requested by the Board of Selectmen, in hopes that we can act on her building permit request. However, this is not the role of the Board of Adjustment in this case. The Board’s role is to decide if the Selectmen made the correct decision in denying her building permit for failure
to provide certain requested information; and tonight, to determine if there is sufficient reason for a rehearing. Joan Davies noted that Ms. Lewis states she would give the Board the basement drawings if the Board reverses its decision, but Joan feels this information should go to the Selectmen. Ted Brown said he and Paul Belluche met Ms. Lewis at her home and saw plumbing that was visible, so it would be possible to inspect it without removing the wall. Debbie Crowther noted there is nothing new provided with the request for a rehearing.
Chairman Benesh noted Ms Lewis’ letters say she wants the building permit granted and then she will allow the inspection; she says she has had inspections on her own and now complies with codes, but then submits no documentation of those inspections. The Board of Selectmen told her to reapply for the permit with updated plans and to arrange for inspection by a master plumber or present a plan to fix the violations. This is the same information that went to her with the letter from the Selectmen. She should be providing this information to the Selectmen as they are the enforcement body for the town.
If she provides this information to the Selectmen in a new application and the Board of Selectman again deny a new application, she can then appeal to the Board of Adjustment to appeal any decision the Selectmen make based on the new information and with regard to the enforcement of the Zoning Ordinance. Frank feels she should provide all the information the Selectmen requested. Paul Belluche noted that if Holly provided this information to the Selectmen, they could issue the building permit; why does Holly think the Board of Adjustment needs the information? The information should have gone to the Selectmen and then to the Board if she appeals a future decision of the Selectmen.
Chairman Benesh had spoken with Holly on the phone on August 13th (upon receipt of the rehearing request) and he encouraged her to reapply for her permit with the new information (as the Selectman have requested) and she said she was considering that; she may do it but she still requested the rehearing. Lisa McAllister noted it was evident Holly’s permit was denied because she didn’t allow the inspector to evaluate the location and now she’s not providing the information that was requested by the Selectmen. She has provided no new information that would lead anyone to think the Board of Adjustment would make any new decision or had acted in error; there’s nothing that would change the outcome of the first hearing. David Urey thinks it is not appropriate for
Holly to bargain with the Board of Adjustment by stating she would provide the plans if the Board changes its decision.
There was no further discussion. Joan Davies, made a motion, seconded by Ted Brown, to deny the appeal for a rehearing on the grounds that there is no new information that would change the original decision. The motion passed with 5 affirmative votes and none opposed. Those voting in the affirmative were Frank Benesh, Ted Brown, Joan Davies, Lisa MacAllister and Helene Matesky. Helene will draft a notice of decision and send a copy to Ms. Lewis to advise her that she has thirty days to appeal this motion to the court.
- Proposed By-Laws change – Chairman Benesh noted that at several public hearings, counsel was in attendance for the applicants without notice and presented fairly detailed material that the Board didn’t have a chance to react to; the Selectmen didn’t have an opportunity to consider if they would want the town’s attorney there as well. The Board By-laws require that written materials relevant to an agenda item, be submitted seven-days in advance of a meeting. Chairman Benesh could have suggested that the Board not accept the materials because of the By-law and the attorneys would not have been permitted to distribute the information. He thinks if a lawyer is going to show up, then the Board should have prior notice and we should abide with the current by-laws. He felt that the Board should have had
notice and the written information should have been available in the public file so that abutters, the Board of Selectmen and other interested parties could review it prior to the night of the Public Hearing.
David Urey noted that since the By-laws require seven calendar days for any information, we need to assure that same information is on the application form and instructions. He doesn’t think the Board should bar an attorney but should reserve the right to reschedule the hearing or adjourn to discuss the information with counsel. Chairman Benesh said that the last time the Board got half way through the hearing and felt the material was too much. Debbie Crowther noted in the general instructions, it states the petitioner will be invited to appear and that they can appear with counsel; the application needs to be reviewed and we need to add that if the petitioner intends to be represented by counsel then the Board would reserve the right to reschedule the hearing or adjourn to discuss the
information, if we are not advised in advance.
Helene Matesky will look at the forms, and application instructions, and assure they have this information. Chairman Benesh will also remind folks as he gets applications. He noted at the previous meeting, the town was poorly served because the Board didn’t know a specific argument was going to be made and there was no attorney from the town or representing the Board of Adjustment at the Public Hearing who could respond. We do have the ability to adjourn a Public Hearing, but he wants to avoid this as the applicant would incur the expense of bringing in counsel if the Board has to adjourn to a later date. The Board agrees that it will clarify in all documents that information that will be presented and/or submitted in writing must be submitted within the seven day and that the
Board should be advised if the applicant is being represented by an attorney.
- Discuss and Approval of Minutes of July 15, 2009 – Ted Brown, made a motion, seconded by Paul Belluche to approve the Minutes of July 15, 2009. The motion passed 5-0-1 (Crowther abstains).
There was no further discussion and the meeting was adjourned by vote at 7:31 p.m.
Notice of Decision
Board of Adjustment, Town of Jackson, NH
Rehearing Request by Holly Lewis
September 2, 2009
You are hereby notified that the request by Holly Lewis for a Rehearing by the Board of Adjustment has been denied. Ms. Lewis requested a rehearing of the Board’s July 15, 2009 decision denying an Appeal From an Administrative Decision, regarding her property at Map V08 - Lot 30.
The Board of Adjustment determined that the applicant did not provide any additional information that would justify a rehearing of the case, and did not show any compelling reason for the Board to rehear the case.
Those voting in favor of denying her request for a rehearing were: Frank Benesh, Ted Brown, Joan Davies, Lisa MacAllister and Helene Matesky with none opposed.
Frank Benesh, Chairman
Board of Adjustment
Jackson, NH
September 2, 2009
Any person aggrieved by any order of the Board of Adjustment or any decision of the local legislative body may appeal, by petition, to the superior court within 30 days after the date upon which the Board voted to deny the motion for a rehearing. (See RSA 677:4 at the Jackson Town Office). This notice has been placed on file and made available for public inspection in the records of the Board of Adjustment on September 4. 2009. Copies of this notice have been distributed to the applicant, Planning Board, Board of Selectman, Jackson ENEWS, the Town Office and have been placed in the applicant’s property file.
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