Jackson Board of Adjustment
December 16, 2015
UNOFFICIAL UNTIL APPROVED
Draft January 11, 2016
Members in Attendance: Frank Benesh, Dave Mason, Jerry Dougherty III, David Matesky and Huntley Allen. The Alternate attending the meeting was James Gleason. Hank Benesh is the Videographer.
Chairman Frank Benesh called the meeting to order at 7:01 p.m.
2015-05 Brooks Chairman Benesh opened the Public Hearing at 7:01 p.m. and reviewed the application as well as explaining the Public Hearing process. Abutters were noticed; five of seven cards were returned. Notice was published in the Conway Daily Sun and posted on the Bulletin Board at the Town Office. Joanne Brooks had pointed out the Public Notice stated the addition was for a porch while the addition is for a bathroom. Chairman Benesh noted a porch could have a roof so the volume of the addition is the same. Folks can also go to the URL to get more information about the application. He feels this is not a fatal flaw and the Board should go ahead with the Hearing this evening. Jerry Dougherty, seconded by Dave Mason, made a motion to go ahead with the
Hearing given that folks can review the documents online and in the Office. The motion passed unanimously (Benesh, Mason, Matesky, Allen and Dougherty).
Chairman Benesh reviewed their request to add a bathroom at the rear of the current dwelling. Their Building Permit application was denied by the Building Inspector as all or some portion of the addition will be within the setback. Chairman Benesh pointed out that Green Hill Road bisects the lot which makes it a somewhat unique situation. The addition is also going to be at the rear of the structure. Jerry asked if the Board is discussing volume or setback; this discussion will be about both.
Joanne and Allen Brooks are in attendance, as is their builder Michael Weeder. Joanne noted the house sits right on the road; so the home is totally non-conforming. This bathroom is not a convenience, they are planning for the future; they want to stay in their home as long as they can and at some time that may require them to move downstairs. They have had no issues with the neighbors, in fact their neighbors have given their support. The requested bathroom is nine by five; it’s at the rear of the building and granting this variance will allow the Brooks to live on the first floor.
Jerry feels it is reasonable to state that the addition would not be going further into the setback; it is not making the house more non-conforming. Chairman Benesh would like the Board to ask questions first then take an opportunity to deliberate. No one has any questions at this time.
Mike noted the bathroom addition is going the only place it can go; it will give the Brooks an accessible bathroom which will meet their future plans.
Chairman Benesh summarized the situation; the addition would be a violation of the front setback however the addition is at the rear of the building; there is no public purpose to not allow them to build. There’s no harm to the public and no neighbors are in attendance with concerns. It can easily be concluded it’s a uniquely situated property without considering the terrain at the back of the surrounding properties. The property is unique in that it is burdened due to it being bisected by the road and the addition is going on the rear of the building. The footprint would be increased; this would be more non-conforming however there is a need for the bathroom. Joanne noted they want to stay in their home as long as they can; it’s a teeny, old house. Currently they sleep on the second floor and at
some point they anticipate having to move to the first floor which would require a bathroom.
The front setback restriction as applied does not serve a purpose. The property is unique due to the road going through the property and the entire property is actually within the Right of Way (ROW).
Chairman Benesh reviewed the reasons for granting a variance:
- Granting of the variance will not be contrary to the public interest;
- The spirit of the ordinance is observed;
- Substantial justice will be done;
- The value of surrounding properties will not be diminished and
- Owing to special conditions, a literal enforcement of the ordinance will result in an unnecessary hardship
The Board voted unanimously (Benesh, Mason, Allen, Matesky and Dougherty) that the property meets these criteria.
Chairman Benesh, seconded by David Matesky, made a motion to grant the variance to Joanne and Allen Brooks. The motion passed unanimously (Benesh, Mason, Allen, Matesky and Dougherty).
Chairman Benesh closed the Public Hearing at 7:28 p.m.
2015-02 Caldwell Chairman Benesh would like to bring everyone up to speed regarding the case of Caldwell versus the Jackson Zoning Board of Adjustment. Everyone has a copy of Attorney Malia’s filing. The ruling came in November 30th; the Judge found for the ZBA concerning the ZBA’s process regarding hardship however he found for the plaintiff in regard to Substantial Justice based on the record that shows there was discussion regarding the reasons for the front setback being for snow removal and parking. The judge found that the injury to the plaintiff is not outweighed by the benefit to the town given the purpose of the ordinance. The denial of the general variance was affirmed but he disagreed with the ZBA’s analysis of the disability accommodation. He remanded that back
to the ZBA to consider two things: Whether or not granting the variance is in harmony with the ordinance, and, Should the ramp survive his mother ceasing to use the property. Attorney Malia felt that the judge made a mistake and sought to file a Motion to Reconsider (MTR). Jerry asked when that happened and Chairman Benesh noted Attorney Malia and he spoke via email a day or two after the decision and drafted the MTR; Chairman Benesh was out of the country and doesn’t know when the MTR was filed. He didn’t feel there was any issue with Attorney Malia filing a two page memo asking the judge to reconsider. He also felt it would be helpful to better understand about the judge’s process should the case be remanded back to the ZBA.
Jerry takes exception to the Chairman’s action; he’s concerned the Chair acted on his own. The non-meeting with the attorney didn’t have to be disclosed however the decisions should be made at public meetings. Chairman Benesh noted there was no decision made; Jerry disagreed; this was a small matter but has billed out twelve thousand eight hundred forty dollars to date. It was clarified the MTR is not a new hearing; it gives the judge a second chance to write his opinion. Jerry disagrees; had there been a non-meeting with the attorney it would have involved the entire Board and the Board would have decided to have Attorney Malia do the MTR in a publicly noticed meeting. Dave sees this as a continuation of the case the Board asked Attorney Malia to bring. There was something wrong in the
reading of the ordinance and the Board would like the judge to reconsider.
Jerry noted the judge said that the proposed deck is a mere five feet eight inches and the intrusion is minimal. Dave noted that is not what is being argued. Jerry noted the judge says it is not up to the ZBA to tell the owner where to put the ramp. The Board just has to decide if the accommodation was reasonable. Dave noted that is what Attorney Malia disagreed with; he felt strongly that there was a misreading. Jerry disagreed; the judge didn’t say the Board should do that; the judge said the Board may do that and that because the ZBA said it could be somewhere else, the ZBA didn’t consider what the owner asked for. Dave noted the ZBA heard all of this when the Caldwells presented their case to the Board; they were saying “everybody else has this and I don’t and that’s what
makes me different” and the judge found for the ZBA on that ground.
Jerry believes what the judge has asked the ZBA to do is reconsider whether the applicant’s request for a ramp was a reasonable one. Chairman Benesh noted that is not what the judge did. The judge found this was a reasonable accommodation and remanded the case to the ZBA only to consider the last two prongs of the disability rights law which the ZBA never dealt with at its meeting because the ZBA found it was not a reasonable accommodation. The judge said the ZBA was wrong, it is a reasonable accommodation. The next step is to have the case remanded to the ZBA and the Board has to decide if the deck in that location is in harmony with the intent and purpose of the Zoning Ordinance. Jerry wondered why the Board has to consider harmony since the judge didn’t use that word. Chairman
Benesh noted that wording is in the RSA. The MTR is narrow; the Board feels the judge is misinterpreting the law. The judge will either say “Attorney Malia you’re right” and the case is dead, or the judge will come back and say “Attorney Malia you’re wrong” at which point the case comes back to the ZBA. The ZBA then has to decide if it’s in harmony with the spirit and intent of the ordinance and whether the handicap ramp can stay there after Mr. Caldwell’s mother stops using the property. The MTR is narrow - as to whether or not the judge’s analysis of what a reasonable accommodation is. If the judge disagrees then it comes back to the Board; this is not something extra that Attorney Malia has done for Jackson.
Jerry asked Attorney Malia specifically at the non-meeting how much it would cost to pursue this case and he said it would be between five and seven thousand dollars; then Jerry asked what would happen if the town didn’t show up and Attorney Malia said the judge would find for the plaintiff and the town wouldn’t be out any more money. To date the town’s spent almost thirteen thousand dollars and it’s still counting. This doesn’t begin to address Caldwells’ costs so both have probably spent in excess of twenty four thousand dollars for a deck that is a mere five feet eight inches and the intrusion is minimal. Dave doesn’t think that is the way the ZBA makes its decisions and David feels that Jerry is going backwards.
Jerry feels the Board should not have done what it did in the way that it did. He feels strongly that the Board erred on this and he thinks the judge points out in two places the intrusion is minimal and not to be considered and that the ZBA didn’t look at the ramp as a reasonable accommodation.
David noted that is all looking back. Jerry believes the judge told the Board to look back. It’s time to stop the bleeding and Jerry thinks it’s a violation of the RTK laws by not having a public meeting to decide whether to file the MTR. Dave disagrees; the MTR is just a continuation of the job Attorney Malia was asked to do. Huntley noted the Board is not talking about just a ramp; it’s talking about a porch with a roof over it.
Dave noted the judge said the ZBA could deny the variance. What the ZBA didn’t do was to properly consider the request for the handicap accommodation but the ZBA was still able to deny the variance; the case is dead; the court agreed the variance shouldn’t have been granted. Jerry disagrees; that’s not what the judge said at all. Dave reiterated the judge said it was perfectly fine that the ZBA didn’t grant the variance otherwise he would have found against the ZBA and the variance would have to be granted.
Jerry feels the judge is trying to strike a happy medium. He said two things; the intrusion into the setback is minimal and not consequential and then he said the Board didn’t meet substantial justice and didn’t consider the accommodation correctly. Dave agreed that is what the judge said and that’s what the MTR is about.
Jerry wants to know what the down side would be for the Board to take the judge’s instruction that he remanded it back to the ZBA and for the ZBA to say we now find it is a reasonable accommodation to leave it where he wants it.
Dave thinks it’s important that the Board ask the judge to reconsider; what does “necessary” mean? Jerry wants to know what the benefit to the town is to pursue the MTR and Dave pointed out that the town will see things like this again and the Board will better know what to do.
Jerry feels saying the Board is protecting the ordinance is wrong; it’s the public the ZBA is trying to protect. Dave asked how the Board protects the public, he wondered if it depends on how much money is spent. Jerry noted the ZBA protects the public through the ordinance. Where Mr. Caldwell has his deck and porch, does it harm the public?
Dave noted the Board is way past that; the fact that the ZBA didn’t grant the variance is not an issue; what’s an issue is the handicap exception. Jerry noted the Board can fix that by saying where he has the porch is reasonable. Dave would like to know what “necessary” means. Jerry noted the judge doesn’t use the word necessary, he used the word “reasonable”. Dave noted Attorney Malia is asking the judge to reconsider on the basis of a number of things. Jerry thinks it’s the difference between “may” and “shall”. Dave noted it is not “may” and “shall”. The request points out the things that are relevant and when the Board gets the response of either he’s not going to reconsider it or he is, the Board will be in a better position to find on something like this in
the future. Jerry thinks the Board is not doing what the judge asked the Board to do. Dave noted the judge didn’t ask the Board to do anything yet.
Chairman Benesh noted the judge came up with a decision that remands the case back to the Board. Jerry wants the Board to do that. Chairman Benesh noted the case was remanded and at that point, the ZBA had the right to ask for reconsideration. Jerry wants to know if when Chairman Benesh says “we” he means the town of Jackson; that was affirmed; the ZBA representing the town of Jackson. Jerry noted that is why that decision should have been made at a public meeting. David disagrees as does Dave who reiterated there was a public meeting at which the ZBA told Attorney Malia to go to court. The decision came down and there was a question so Attorney Malia asked about it via the MTR. Dave finds it hard to believe that Jerry wants a public meeting for that. Jerry does. Chairman Benesh
asked if Jerry is saying he wants a public meeting to authorize Attorney Malia to write a two page memo; Jerry does and asked what will happen if the judge does not accept the MTR. Chairman Benesh noted the case would then come back to the ZBA. Jerry still believes the Board should have made the decision that the ZBA was going to ask the judge to reconsider publically so the town could see what the ZBA was doing. David noted this has nothing to do with where the ZBA is now; Jerry countered that it has everything to do with where the ZBA is now. Dave noted the decision’s not final yet; Jerry noted that the decision is final. Dave, David and Chairman Benesh all reiterated that the decision is not final. Chairman Benesh noted the judge has to rule on the MTR first; the Board is allowed to do that; after the MTR is ruled on the decision will be final.
Jerry noted the ZBA could choose to appeal the decision; Chairman Benesh pointed out that appealing is a big decision and he doubts the Board would appeal it but the Board could certainly talk about it. Jerry wants to talk about that. If Attorney Malia’s MTR doesn’t carry and the judge says “no thank you”, is the ZBA going to appeal the judge’s decision or is the ZBA going to ask the judge to reconsider? He wants to know if Attorney Malia’s MTR is rejected will the ZBA have a public meeting. Chairman Benesh noted the ZBA would have a public meeting (he’s not sure if it would be a Hearing or a Meeting, probably a Meeting) for the ZBA to consider whether or not the ramp in the proposed location is in harmony with the spirit and intent of the Zoning Ordinance. If the ZBA finds that it isn’t then
the ZBA would deny the disability variance. If the ZBA finds that it is then the ZBA has to move to the next step which is saying should the ramp be removed when Mr. Caldwell’s mother stops using the premises or can it survive her lapse of using the premises; the Board will have those two decisions to make. Jerry wants to make sure that will be at a public meeting; Chairman Benesh noted it would be. The ZBA didn’t get to those questions previously. Jerry noted that is because Chairman Benesh made a unilateral decision not to. Chairman Benesh clarified that the ZBA didn’t get to those questions when the ZBA denied the disability variance because the ZBA didn’t feel it was reasonable and necessary. The judge told the Board it is a reasonable accommodation and the ZBA was wrong. Attorney Malia thinks the judge made a mistake in interpreting the law, he’s filed the MTR, the judge is going to say “yes, I made a mistake, I see what
the ZBA is saying” or “no, I still feel the way I did” and what comes next depends on what the judge says.
Huntley asked what would happen if the ZBA wasn’t dealing with a porch with a roof over it but only with a ramp because the ramp can be taken off. Dave noted they can take a porch off too. Chairman Benesh noted if the case comes back to the ZBA it will have to make that decision (whether to take off the porch), he hasn’t thought about it; he’s not sure what “in harmony” with the general intents and spirit of the ordinance means.
Dave noted the ZBA needs to wait until it gets the decision about the MTR. Huntley agreed; he feels the Board is wasting time discussing this now.
Jerry believes the decision to file the MTR was a violation of the Right to Know Act (RTK). Chairman Benesh can’t believe Jerry believes just allowing Attorney Malia to file the MTR is a RTK violation. Jerry thinks this is true because the consequences of that filing are huge. Chairman Benesh doesn’t see how they are huge. Jerry noted Chairman Benesh just said how they’re huge. Dave noted the consequences aren’t huge to the town of Jackson. Chairman Benesh noted if the judge agrees with Attorney Malia’s analysis, the case is over. In Jerry’s opinion, the chances of that are slim to none. He thinks the judge is going to be insulted by the MTR and will say his original order stands and the case is remanded to the town. Dave noted judges are asked to reconsider things all the
time; this is not an insult. Jerry noted he is on the record with his concerns.
James asked if the judge had all the facts; Jerry is sure the judge does. James brought it up because the Board is talking about ramps but in the beginning there was a porch that then became a ramp. James was assured the judge is aware of that.
Dave noted one of the Caldwells’ complaints was that the Board of Adjustment is just irritated because the Caldwells built a porch they weren’t supposed to build and the ZBA is making them pay. “So, that’s really all it is, your honor, they’re making it hard for them because they went and built a porch”. Jerry noted the judge’s response to that is “the proposed deck is a mere five feet eight inches. The gain to the public from preventing such a minor intrusion is so minimal as to be negligible”. David reiterated that this is backwards analysis and Jerry stated it is not backwards thinking; that’s the case. Dave noted the judge didn’t find for the Caldwells, he found for Jackson with the exception of the handicap disability. David agreed noting the judge found for the ZBA on the
porch; period, all done. Jerry doesn’t see it that way. Dave asked how Jerry sees it and Jerry responded he sees it that the judge remanded the case back to Jackson; the judge said “I am remanding it to the Zoning Board to consider whether or not this is a reasonable accommodation”. Dave clarified that’s regarding the disability, period; it’s not about the porch; it’s not about the five feet. The judge found for the ZBA on the variance; he didn’t find for the ZBA on the disability.
Jerry asked if Dave is comfortable with the fact that the town of Jackson has spent twelve thousand four hundred eighty dollars to date. Dave is absolutely comfortable with that; if that’s what the town has to spend, that’s what they have to spend. He asked Jerry if he’s okay with the fifty thousand dollars the town is going to pay for lawsuits with previous employees. Jerry noted that hasn’t even gone to court yet. Chairman Benesh noted that was the settlement. Dave’s guess is that the town’s insurer is telling the town that there are some allegations that are not covered by their insurance. David pointed out there wasn’t a public meeting about this so folks have to guess. Dave noted the town can’t divulge the amount of money. Jerry noted that is because that is not supposed
to be public.
Jerry is embarrassed by the Board’s actions. Chairman Benesh thinks it’s unfortunate that the town was sued but that’s the Caldwells’ right and if the town does get sued it has to defend itself as opposed to not defend itself. Jerry disagrees with the Board. Not less than two years ago this Board, that Jerry wasn’t on, approved a garage on a thirty percent slope within the ROW. This Board approved it even though the owner could have built a garage anywhere on his property. Dave noted the owner didn’t build his garage on a thirty percent slope; he didn’t build a garage at all, as a matter of fact. Jerry noted the reason he didn’t was only because there wasn’t an excavator in the state that would do it. Dave wondered if the owner had told Jerry that which Jerry affirmed. Dave
noted he talked to that owner as well and didn’t ask him why he didn’t build the garage but the owner didn’t say anything to Dave about “I couldn’t get anybody to excavate it”. Jerry queried that the garage wasn’t done, was it and Dave agreed it wasn’t but he doesn’t know that not finding an excavator was the reason why. Jerry wants to know why the ZBA approved that garage. David wants to know why Jerry is revisiting this and Jerry noted it’s because what the Board is deciding tonight doesn’t comport with what the Board has decided before. Dave noted the ZBA members know these things are done on a case by case basis. David agreed noting the Board doesn’t set precedent. Jerry still doesn’t think the current decision comports with the Board’s reasoning in previous cases. David noted Jerry is just digging up dead bodies; he didn’t like that ruling so he’s going to bring it up now; it’s not right; it’s not
the way to do things. He doesn’t think it serves any purpose at all; it’s not helping the Board at all. David doesn’t think it’s doing anybody any good to say “you know what you should have done in that case”. Jerry reiterated he’s just saying what the Board did in this case doesn’t comport with that one. David pointed out that in the garage case, the ZBA found it was unique and Jerry is aware of that. When it’s unique the ZBA is obligated, if they meet all the other criteria, to grant the variance; the Board is obligated to grant the variance. David noted that because of that, the Board ended up changing the ordinance. Dave agreed noting that case was so unique and so off that the Board changed the ordinance to recognize that problem. That’s why the ZBA decided that way. It’s not a difference in thought, it’s a matter of is it unique in relation to other properties and obviously it was because the
ZBA had somebody who said “hey, we have to change this”; it’s that unique and if it’s unique and it meets the other criteria then the ZBA is obligated to give the variance.
Chairman Benesh is glad that Jerry is now on the Board so he can bring his views to the decision-making process. Jerry noted he stayed away from the Caldwell decision because he knew how the Board was going to decide and he was, frankly, embarrassed by it. Chairman Benesh noted that is unfortunate because he believes the Board would have been better served to have had Jerry. Jerry’s concerned about how the town is served. Chairman Benesh thinks the Board and the town would have been better served had Jerry been present. Jerry disagreed.
David understands that Jerry has a different view; David knows what Jerry is saying; no one wants a bunch of people just nodding their heads. Jerry noted he was in complete agreement regarding granting the variance for the bathroom but he was surprised at how quickly the Board overlooked the volume issue. The Planning Board is putting forth an amendment for the voters to weigh-in on with respect to the volume issue. The volume issue was put in as a knee-jerk reaction to the Snowflake Inn and it has kept many people from putting on dormers. A great example, and Jerry wholeheartedly agrees with the benefit to the town, is the house across from the fire station. He’s just surprised at how quickly the issue of volume was overlooked. Chairman Benesh noted whether looking at the footprint or the volume,
either way the current setback requirement would prevent them from either increasing the footprint or increasing the volume. Even if the ordinance is changed and the ZBA isn’t looking at volume anymore, they are increasing the footprint so it would still be making the property more non-conforming.
Dave would like to clarify that if the ordinance that says you can’t be closer than fifty feet to the road or twenty five feet on the side, changing the footprint on the back doesn’t impact those setbacks. The Board went through the criteria for this and said “yup, meets this; yup meets that” so why would Jerry want to argue about volume now. If someone had voiced concerns with other criteria then the Board might talk about volume. Jerry isn’t arguing; he said he agreed about granting the variance; he just finds it interesting. Dave isn’t sure what Jerry means when he says he finds it interesting. Jerry noted it is a nice way to criticize the Board.
Chairman Benesh didn’t see any distinction between increasing the footprint and increasing the volume. Dave noted there’s no difference between volume and footprint. Jerry noted the volume can be increased without increasing the footprint and David countered the footprint can also be increased without increasing the volume.
Dave Mason, seconded by David Matesky, made a motion to adjourn at 8:06 p.m. The motion passed unanimously (Benesh, Mason, Matesky, Allen and Dougherty).
Respectfully submitted by:
Martha D. Tobin
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