Newton Board of Appeals
P.O. Box 378
Newton, N.H. 03858
MINUTES: Meeting of Tuesday, January 19, 2010
CALL TO ORDER at 7:30 PM by Chairman Tom McElroy
ROLL CALL: Chairman Tom McElroy, Vice-Chairman Alan French,
Bradley Cardoso, Jack Kozec, Alternates: Charles Melvin, Sr.
and Ken Pelletier. Absent: Mr. Allison.
ACCEPTANCE OF MINUTES: Meeting of December 15, 2009. A motion was made by Mr. Kozec to accept the minutes as written. Second by Mr. French. All in favor. Motion carries.
NEW BUSINESS:
Discussion of letter and motion to remand sent to Board from Attorney Ratigan.
Mr. Melvin suggests that Atty. Ratigan wants the Board to clarify their voting on the Criteria of the Application for the expansion (15 more sites) of Whispering Pines.
Mr. Cardoso reminds everyone that this will be difficult since Mr. Allison is in Florida till sometime in March. He makes the suggestion that we do a ‘conference call’ with Mr. Allison when the meeting takes place.
Chairman McElroy reminds everyone that the matter has not yet been officially remanded to the Board. It should be done before our February meeting.
Mr. McElroy also told the Board that Mr. Pica had contacted him regarding the matter of the ‘walk through’ scheduled by the Board in July. Mr. McElroy sent this information in to Attorney Ratigan also.
Question as to why this matter was going to be remanded to the Board. “Weren’t our answers good enough?”
Mr. Melvin suggests that we go through all replies, voting, and try to find what’s not clear.
He felt that all was clear, and that it’s all a question of money.
Members discussed how Attorney Ratigan was assigned the case rather than the Town Attorney. It appears that Attorney Ratigan was the Town Attorney when the whole situation of expansion of Whispering Pines began (when Mr. Pica purchased the property).
The Selectmen felt that he had prior knowledge.
Several members of the Board were aware that the Selectmen had spoken with the residents, and that Attorney Ratigan had also spoken with Abutters. Several Board members had a problem with this! He had no right to speak and/or give advice to any of the Abutters. Technically, Attorney Ratigan is supposed to be working for us.
Mr. Melvin expressed that Attorney Ratigan did not have the authority to ask the Court to remand this back to the Board. This should not have been requested without the permission of the Board of Appeals. He feels that “the Board made a decision, if we are wrong, and the Court says we’re wrong, then we’ll grant him his stuff! If we’re right, then let us move on! That’s what I thought we were doing.”
Mr. Peterson told the Board, at the last meeting on this issue, that he had spoken to Attorney Ratigan about this.
The Board felt that the abutters had no right speaking with him. They question if the Town is paying for the Abutter’s legal time. The attorney has no right speaking with Mr. Peterson. This is the reason why Mr. Peterson requested that the Town use Attorney Ratigan rather than the Town Attorney.
The Board felt that they could not proceed, because those Board members who voted at the first Decision are not the same members who voted at the 2nd Decision. Who do they want to explain the voting?
Chairman McElroy suggests that we invite Attorney Ratigan to the next meeting to discuss the issue. Then, at the March meeting, when Mr. Allison has returned, the issue would be clarified. However, no decision had been made by the Court, so we should wait to see what happens.
Discussion on explanations of the YES as well as the NO votes. If you clarify the NO’s, you should be clarifying the YES’ too.
Mr. Melvin brings up the fact that the request to remand has been signed with the Planning Board, not the Board of Appeals (see last page of request). Is this an oversight, a clerical error? Is it legal?
Mr. Pelletier asks “Is it a legal document if it was done without the approval or request of the Board of Appeals?”
Mr. French asks: “Does he have Power of Attorney?”
“The Selectmen do!” was the reply.
Three of the Board members had recently completed Courses with the Municipal Law Lecture Series. At one of the sessions, they were advised to handle the voting very differently. There should be no explanations, and no individual voting… Just an overall YES or NO. They had the booklet provided with this information.
Mr. Kozec suggests that the Board meet in a Work Session, when the Public would not be invited. Lawyer/client privilege?
If it’s an Open meeting (open to public) some Board members would not be present.
Could this be handled in ‘Executive Session’?
This decision will be dealt with after we hear from the Court.
OLD BUSINESS:
There are three (3) appointments to be made by Mr. Dezmelyk, Town Administrator… Chairman McElroy said that he had spoken with Mr. Dezmelyk and that all was OK.
- Discussion of the e-mails received by Mr. Casey Burns, who wished to put a larger sign outside his home-based business. When he had met with the Board back in October, the Board had clearly explained their own requirements, their own procedure, their own policy. The Board requires a Certified Plot Plan for everything, additions, decks, stairways, etc. There are no exceptions.
Each Board has their own Policy. The Planning Board may not request a Certified Plot Plan, but the Board of Appeals does, NO EXEPTION!
Discussion on signs, additions, etc. having to be 65 feet from the center line of the road…
Mr. Kozec makes a motion to write a letter to the Planning Board, instructing them not to give out any information about anything concerning the policies of the ZBA. Second by Mr. French.
Discussion.
Mr. Melvin explains that a new Board could change all the ZBA policies… granting waivers, etc.
Because it’s a home occupation, the size needs to be the required size. The intent of size is so that when the business grows, it should move to a commercial area.
It is noted that Mr. D. Quintal has already drawn up plans when Mr. Burns did his addition. It would not be a great expense.
It is suggested that the Planning Board should not advise applicants on the ZBA approach. There are no ‘minor’ procedures, no varying sets of requirements.
Mr. Kozec withdraws his motion. Mr. French withdraws his second.
ADJOURNMENT:
A motion was made at 9 PM by Mr. Kozec to adjourn. Second Mr. French. Motion carries. Next meeting is to be February 16, 2010 at 7:30 PM.
Respectfully submitted,
Jeannette Clark, Secretary
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