Jackson Board of Adjustment Public Hearing, January 6, 2010
Appeal to reverse the denial of Selectmen to Jackson Cross-Country Ski Center’s request to build a parking lot on Carter Notch Road
Minutes Approved: February 17, 2010
Members in Attendance: Frank Benesh, Debra Crowther, Helene Matesky, David Urey and Ted Brown. Alternatives attending the meeting were Joan Davies, Paul Belluche and Joan Aubrey. Martha D. Tobin is the Acting Recording Secretary. Selectman Gino Funicella, Larry Siebert, Larry Garland, Betsey Harding, Sam Harding, Bob Davis, Walter Yaceshyn, Thom Perkins, Alan Wilson, Ken Kimball, Sarah Kimball, Phil Davies, Bob Kantack, Mike Sachse, Denise Sachse, George Howard, Suzanne Scolamiero) and Roger Chambers also attended the hearing.
Chairman Benesh opened the Public Hearing at 7:12 p.m. and Helene noted that notice was provided to all abutters. Notice was also published in the Conway Daily Sun; it was posted in the Town Offices and in the E-News. There have been only two confirmations received and no correspondence.
Chairman Benesh noted Ben and Martha Miller are in favor of the requested development. Sam Harding has a letter from his son, Dexter but Chairman Benesh noted the Board would hear that following statements from the parties involved. (He reviewed the process).
Thom Perkins (JXC) and Alan Wilson (JXC Board of Directors) join the Board and Allan noted he is an Environmental Lawyer by profession but is in attendance tonight as a member of the Board of Directors. They are proposing to remove nine inches of topsoil in an already existing parking lot; the Selectmen’s decision refers to this project as “building a lot”; the lot already exists; they want to improve it. The Selectmen denied the request based on the belief that the lot is Commercial and therefore not allowed in the Districts (River Conservation District and Rural Residential). Jackson’s maintenance of the (parking) area isn’t part of the record. JXC maintains 150 km trails in all of the Districts and it is JXC’s contention that regionally located parking lots are needed to allow
access to the trails; the Board can’t make a difference between a parking lot and access to trails. Usually by Christmas week the only way to access the fields is through that lot (on Carter Notch Road); these trails are also the best for disabled or new skiers as they are the flattest trails in the system. This is not a unique situation as there are several other parking lots; the Selectmen gave JXC permission last year to build a lot in the Town’s Right of Way; there’s a lot on the Jackson Loop and one off Muloon Road. All are similar in size; they are not inappropriate to the District they are in (they are not like mall parking lots). These lots are a real and integral part of the trail system. In the River Conservation District (RCD) trails and reasonable access are permitted. If the Board concludes that parking lots are related to “access to trails” then the Board will say the lot is an accessory to the trails.
Chairman Benesh noted JXC is also saying trails are permitted throughout the Village District - a matter that was not only undecided but it wasn’t even brought up by the Selectmen. Chairman Benesh noted JXC’s argument is the parking lot is part of the use of the ski trails or that it’s an accessory to the trails. Alan thinks it makes more sense that reasonable access is part of the use; it is unreasonable to have trails with no way to get to them. Their argument also takes into account the fact that this is not the only lot; and some of these lots are maintained by the Town and some by JXC.
Helene asked if the lot is going to be consistent with other lots used to access the trails. Thom Perkins noted that what they are proposing is of lower impact; they want grass to grow on it. This lot is only plowed for parking in winter and in the spring the loam surface turns muddy; JXC has been able to grow grass on gravel so replacing the topsoil with gravel would allow this lot to look like the rest of the field once the ski season is over. It would also be a parking lot that wouldn’t get muddy during thaws. Helene also noted there were references that the property line was encroaching on an abutter. Thom noted a survey has been done and the property line has been agreed upon.
Paul noted that Mrs. Walker had brought up seven issues of concern to him. Chairman Benesh asked the Board members as well as Thom and Alan if they’d seen Burr Phillips’ (Town Engineer) last email that addresses those items; several folks had not yet seen this document. David asked if there are any outstanding Walker issues that would threaten the Board’s decision. Chairman Benesh noted the Board will ask this of the Selectmen’s representative who will also be asked if the only reason the Selectmen denied this was because of the Zoning.
David asked if the Board affirms the Selectmen’s decision and JXC wasn’t able to improve the parking lot would the existing lot be threatened; would JXC be asked to remove the lot or is it grandfathered. Alan noted that if the Board affirms the Selectmen’s decision then the Board would be saying none of the lots are permitted uses; that could threaten all of the lots. David disagreed as the Board could still agree the lots are an accessory use.
Helene asked how long similar lots have been in use and Thom noted they were in use since before he came to Jackson 33 years ago. The Mulloon lot was there since the old dump was there. Deb noted the denial was based on this lot being in the RCD. Chairman Benesh noted the denial was also based on this being a Residential area with a “Commercial” use. The Board had no further questions for Thom or Alan.
Chairman Benesh asked for comments from those who have a direct interest or are abutters in favor of this application. Mike Sachse owns property directly across from the parking lot; both he and his wife believe the enhancements would improve the parking lot; they are completely in favor of the application. Chairman Benesh asked if Mike had any thoughts as to whether the lot is an integral part of the trails. Mike noted he doesn’t see how the Jackson Trail system would be the same without places to park. Denise Sachse agrees with these statements.
Sam Harding read a letter submitted by his son, Dexter.
Dexter states they are lending cautious support to this project in that it is a small winter time only parking lot. They are very happy having the JXC trails crossing their land and it makes sense to have parking available. Without them access to the trails would be difficult for many; he also reminded folks that Jackson has a parking ban on all roads. They support the proposed improvements. They are giving this support cautiously because of the lot’s closeness to the river and parking lots are collectors of pollution. Dexter would find this more worrisome if it were a larger lot or if they had seen more than just winter time/day time parking. Dexter noted the history of the RCD supports access to the trails. This was signed by Dexter Harding and Lucy Getchell
Suzanne Scolimaro noted she is a member of JXC. She has had two hip replacements and without this parking lot she will be unable to access the trails as she needs to have the flat area. She confirmed that when it gets warm and sunny up there the lot is a sea of mud. She appreciates the parking lot and hopes it will remain there.
Phil Davies reminded folks that the “Wild and Scenic” designation for Wildcat is the bed and back of the river. The RCD is an overlay. When the church and the school added parking within the overlay they used an impervious surface. What is being proposed is not the same as an impervious surface. He stated the lot does not present a significant runoff issue. Phil noted that while he is Chairman of the Conservation Committee, he is speaking personally.
Sarah Kimball has an interest as a Jackson resident. She has been in Jackson for more than twenty years and has been involved in both the Wildcat Brook Advisory Committee and the Planning Board. She is not speaking as a member of either group. In the 80’s there was a proposal to build a dam on the Wildcat and the one way to prevent a hydroelectric dam on the river was to have it designated as Wild & Scenic; the Wildcat Brook Advisory Committee was formed to assist in accomplishing this. The Wild & Scenic Program doesn’t put any regulations on the land but depends on regulations being put in place on the local level. The Committee had to show that the community had in place regulations that would preserve the qualities of the river. Soil type was one of the things that supported the
nomination and a survey of the Town showed overwhelming support for the conservation of the river. Restrictions would be put in place so that whatever future development was allowed would be consistent with the Wild & Scenic purpose. Part of that documentation included that within the RCD recreational trails would be provided. As noted in Dexter’s letter, this trail system has been in Jackson since the 30s; if it’s a matter of whether trails are allowed in the RCD then it is moot since they are grandfathered. She supports what has been said summarizing the Zoning Ordinance and that the RCD allows the trails. The parking lots would be accessory and integral to the trails.
Betsey Harding noted that she and Sam had been involved with putting the land (Dexter purchased) into trust with the Upper Saco Valley Land Trust before Dexter bought it. When this parcel of land came available it would allow access to the field for the trails. She and Sam are very much in favor of this application.
Selectman Funicella noted that on a personal level he is in favor of what JXC wants to do. As a Selectman we shouldn’t let our personal feelings come into it; decisions need to be made based on the information that’s available at the time. Jackson’s engineer sent a letter telling the Selectmen what the issues were and there was an abutter that were concerned about the lot. We voted based on that information. Selectman Mason didn’t agree with the denial but Selectman Davis and Selectman Funicella voted to deny the permit as they didn’t think there was enough information. They felt it would be more relevant for JXC to apply for a variance particularly because the Town’s engineer said there were problems. The Selectmen couldn’t allow approval for JXC when engineering
concerns have prevented others from getting permits. If Burr has gone through the concerns; and if the abutters have worked it out so there are no further concerns then Selectman Funicella has no issues with the application. The point is the Selectmen sent this to the ZBA because the Selectmen didn’t have enough relevant information to represent the Town on this application.
Chairman Benesh noted the Selectmen’s denial letter only mentions the Zoning Ordinance. Burr Phillips’ last memo suggests that he has no further issues. Chairman Benesh asked if, at this point, the Selectmen’s only concern is whether or not this is a permitted use in the RCD, are there other issues. Selectman Funicella wants to know if the Board considers this a commercial operation and since it’s in a rural district should a commercial operation be allowed on that property. He noted the Selectmen could have made that decision but not when the process included an engineer saying there were issues. David asked if Burr had concerns when the lot was built last year. Selectman Funicella is concerned if JXC got a permit? It was noted that because there’s no building there’s no permit. Selectman Funicella noted that JXC was going to construct something so they came to the Selectmen for a permit and the Selectmen felt it was worth another look via the ZBA. Paul asked for a review
of the permit application, which is to dig up six inches of topsoil and put in gravel then to cover it with grass. Selectman Funicella noted that with the Engineer and Mr. Walker’s letter with concerns the Selectmen couldn’t just make a decision to approve it without investigating the issues and concerns. JXC wanted it for immediate winter use and if it was granted and the abutters filed an appeal it could take years to resolve. The Selectmen wanted this to go to the ZBA; they couldn’t take Mr. Walker’s concerns and just say they don’t count.
David noted that the ZBA’s job is to decide if the application complies with the Zoning Ordinance; is this a permitted use. Chairman Benesh noted the ZBA has the authority to issue the building permit if Zoning is the only concern the Selectmen had in denying the permit. Selectman Funicella noted that he thinks if this application came to the Selectmen he would support it and since Selectman Mason supported it when it was brought to the Selectmen that would be at least two of the three Selectmen voting for it so it would pass. Selectman Funicella left the Public hearing at 7:54 p.m.
Chairman Benesh asked if there were any comments against the application. There were no comments against the application but there were questions from the public, which Chairman Benesh allowed.
Betsey Harding asked if the fact this is a very small lot and couldn’t have a structure built on it is relevant or not. Chairman Benesh clarified that the Board is hearing an appeal of a denial; the reason for the denial was that it’s not a permitted use. Betsey’s point regarding alternative uses might have been a question if JXC had asked for variance.
Roger Chambers would like to know how many parking lots JXC has. Chairman Benesh will ask that question when JXC comes for rebuttal. Chairman Benesh asked if anyone wished to speak in support of the Board of Selectmen’s denial; there were no comments or questions.
Chairman Benesh let Thom and Alan know they now had an opportunity for rebuttal. He asked them how many parking lots JXC has. Alan noted in addition to the main lot there are three.
Alan noted that Mr. Funicella’s response makes it clear that the engineering issues have been resolved. The ZBA does have the ability to issue a permit if they agree this is a permitted use in the District; there is no reason not to issue the permit tonight.
Chairman Benesh asked how the property line dispute was settled and Thom noted that a survey was done by Bergeron; Mr. Walker’s property was carved off the “Harding Property” and the lot line was adjusted. The distance on the JXC documents is incorrect by fifteen feet however this doesn’t make any changes in the application for the parking lot.
Chairman Benesh summarized the case; he thinks the decision before the Board is fairly narrow. Is a parking lot a permitted use, part of the ski trail system and/or an accessory use or is it not. The Zoning Ordinance is not particularly clear on that. He asked if there were any further comments.
Sarah Kimball would like to emphasize what the intent of the Wildcat Brook Advisory Committee was. Rural Residential District uses were very narrowly defined and it was felt that it would be necessary to further restrict them regarding buildings in the RCD so they included wording that says the only structures that would be allowed (in the RCD) would be accessory to accepted uses and those accepted uses were voted on and accepted by the Town. The recreational trails are an accepted use.
Paul asked what is done with the lots during the off season. Thom noted this specific lot is unique. The Black Mountain lot is used for hiking and access to National Forest lands; its use is not discontinued during the year. The lot at the end of Carter Notch Road is basically a widening of the road; it’s not chained off so it is also used for parking in the off season. This lot is carved out of a meadow and will look like a meadow once the grass grows in and JXC abandons maintenance for the off season.
David noted that Jackson has Section 7 which states that any uses shall provide adequate parking. Alan noted this makes the lot integral or an accessory to the trails. In addition to the winter parking ban, the Zoning Ordinance implicitly states that we provide recreational activities so we must provide adequate parking. The Zoning Ordinance doesn’t provide direction as to how many spaces are needed but he’s not overly concerned given the size of the area to be disturbed.
Thom noted in 1986 the Jackson Ski Touring Foundation, because of unusually high skier visits, stressed the Village terribly. JXC had 60,000 skier days so they took steps to curb the number of skiers going into the Village. JXC moved from the Jack Frost site to get the use pressure out of the Village; having parking lots dispersed around Town also helps with this.
David asked if anyone has objected. Deb noted that Mrs. Walker’s letter stated that he had three neighbors, including Betsey and Sam Harding, who said there were routinely more than fourteen cars in this lot (point 4 in Mr. Walker’s letter). Thom noted this is more due to what people perceive fourteen cars parked there would look like versus the reality of how many are there. The lot doesn’t have a limit but the size of it doesn’t fit more than fourteen. Deb asked Betsey if this is something she did say to Mr. Walker as stated in his letter to the Board. Betsey couldn’t imagine she’d said something like that as she has never thought there were fourteen cars parked at a time; that would be too many. Alan had parked in that lot this past weekend and his car was
“number six”.
Sam Harding wanted to remind folks that when the river flooded there were people parking on the street and pointed in the wrong direction and that was very dangerous.
There were no further questions or comments.
Chairman Benesh closed the Public Hearing at 8:07 p.m. The Alternates left the table.
Chairman Benesh asked if members had any comments or questions. Ted noted he’s in favor of it. Deb asked where the reference in the RCD description regarding trails and accessories is. David identified this as Section 5 River Conservation District as amended in 2008. He then read the definition of an accessory into the record. “5.4.1 Uses Permitted: 5.4.1.4 Parks, conservation areas, nature trails and recreation uses consistent with the purpose and intent of this ordinance.” Sheds and out-buildings are all accessory uses.
Chairman Benesh asked if the Board needs to determine if ski trails are a permitted use in the RCD. David noted the Board only needs to determine if it agrees or disagrees with the Selectmen’s decision to deny the permit.
Chairman Benesh noted Paragraph 1(Section 16.2.1) authorizes the ZBA to hear the appeal and make a decision so the Board can reverse the Selectmen’s decision.
“SECTION 16: ZONING BOARD OF ADJUSTMENT; 16.2 Specifically, the Zoning Board of Adjustment is authorized to: 16.2.1 Hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Board of Selectmen or the Building Inspector in enforcement of this Ordinance…”.
David David doesn’t feel the Board can grant the building permit since this would get into accessing fees. He is not comfortable issuing a building permit; he didn’t study the drawings. Deb noted she isn’t going to be an engineer; she’s not going to make that decision. Chairman Benesh noted that is why he asked Selectman Funicella if there were any other issues involved in the Selectmen’s decision to deny the permit. Deb noted the Board needs to uphold or reverse the decision and then return it to the Selectmen to issue the permit or deny the permit on other grounds unrelated to zoning.
Chairman Benesh views the parking lot as an integral use or accessory use. Helene noted the Master Plan supports the parking lot as one goal is to establish trails as a permitted use and also to provide access. Page 7 and 8 of the Master Plan Human Services Goal: Ensure that human and social services, such as housing, education, medical services and recreational opportunities, are available to meet the needs of the townspeople. (Page 7) Policy (Page 8, Third Policy): The recreational opportunities in the town shall be maintained and enhanced.” Especially for skiers this section has Objective #5: “Objective: Support initiatives to develop parkland and other public space in ways that retain the natural flavor of an area while allowing for parking and other conveniences within a
reasonable proximity.” Additionally there is Objective #6: “Objective: Any accessory facilities required by recreational activities should be located unobtrusively away from roadways, viewpoints and private residences.” In light of the fact that section 7 of the Ordinance requires large planned uses to have adequate parking this indicates the parking lot would be integral to skiing activities. If we are going to have any kind of recreational opportunity we have to have someplace where those who are recreating can put their cars. Deb noted when they lived next to the Black Mountain Ski Trail lot skiers would park in her drive and ski all day; she had one towed one time. David does think the parking lot is integral; and is subordinate to an existing use so it meets the criteria for both justifications.
Chairman Benesh is also comfortable with saying this is integral with the use. The Board members unanimously agreed that the applicants use is allowed in the River Conservation District and the Rural Residential District. These were the two reasons cited by the Selectmen; it’s not a permitted use in the RCD or in the Rural Residential District and the Board finds the lot is a permitted use in both Districts. David noted that while there’s no mention of cross country skiing and parking in particular but parking is integral. The Board can’t question whether skiing is a permitted use as it’s been around Jackson for years.
Deb’s only concerns would be environmental and she thinks Dexter Harding’s letter addresses that. We all saw what he’s talking about during the flooding; she wants to know that the Town engineer’s issues have been addressed.
Helene noted the Board can recommend that the permit be issued based on the Findings of Fact. Chairman Benesh noted the Board does have the jurisdiction to do more than just sending this back to the Selectmen but it sounds like no one else supports that option.
Helene noted the neighbors want to know how they’ll keep people off their property.
Chairman Benesh noted the only reasons the Selectmen gave for denying the permit were due to the Zoning Ordinance. Helene noted Selectman Funicella didn’t say the Selectmen had completed their review; the ZBA shouldn’t be counting on Selectman Funicella’s belief that it would pass. There are still some issues the Selectmen may hear at their next meeting. This Board is not being asked to make that determination.
The Board agrees the members are ready to vote tonight on this appeal.
David Urey, seconded by Helene Matesky, made a motion to Find that the parking lot is a permitted use in both the Rural Residential and the River Conservation Districts based on the Finding that cross-country skiing is a permitted use and a parking lot is not only an integral part but an accessory use. The motion carried unanimously.
David Urey, seconded by Helene Matesky, made a motion to Reverse the Selectmen’s Decision denying the request for a permit. The motion carried unanimously.
Other business It was noted that at the Annual Meeting scheduled for January 20th the Board will have to select officers; are there term limits? The Board has two more years that Frank can be the Chairman. David wants to know what the bylaws have for term limits; is it three years? When this was affirmed David noted he’d like to delete this from the bylaws; if the Board members don’t like our Chairman we can vote them out. Board members agree to delete the term limit. David noted the Board also needs to clarify how Alternates are chosen and who is able to vote. The bylaws use the term seniority and who is able to vote should be rotating. Deb noted that the bylaws used to limit the Chairman to a one year term. She agrees the whole term limit for the Chairman needs to be taken
out of the bylaws. Chairman Benesh noted he is relatively new to this and he welcomes criticism should anyone have concerns. The Board members assured Chairman Benesh that he’s doing a great job.
It was noted that there had been some issues with notices; notices go to abutters of a subject property and those who have conservation, historical or agricultural preservation easements on the subject property; it is unclear whether notices must also go to holders of such easements on abutting property. Chairman Benesh suggests that the bylaws be changed to make it clear that that notice will only go to those with easements on the subject property, not those who hold easement on abutting property. Helene noted Jackson will have to change the application and its bylaws.
It was also noted if the Board feels it has made a mistake the wording in the bylaws is that the Board can reverse its decision within thirty days. The Board has never held to the thirty day limit.
The next meeting will be at 7 p.m. to go through the bylaws; Chairman Benesh is not aware of anything else coming up.
Deb Crowther, seconded by Paul Belluche, made a motion to adjourn at 8:31 p.m. The motion passed unanimously.
Respectfully submitted by:
Martha D. Tobin
Acting Recording Secretary
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