NOTTINGHAM ZONING BOARD OF ADJUSTMENT
FEBRUARY 27, 2007
APPROVED APRIL 3, 2007
VOTING MEMBERS PRESENT: ABSENT:
Mr. Doug Leib, Chair
Mr. Kevin Jordan
Mr. John Morin
Mr. Earle Rourke
Mr. Jim Howard
OTHERS PRESENT:
Mr. Jim Crowell, ZBA Alternate
Mr. Jim Hadley, Barrington Selectman
Mr. Mike Russo, Chair, Neighborhood Guardians
Mr. Arman Hyatt, Attorney, Garrison Place Real Estate Trust
Mr. Bill McCann, Save Our Groundwater
Mr. Peter Bock, Nottingham Selectman
Mr. George Bailey, Barrington
Chair Leib called the meeting to order at 7:06 PM.
CASE #07-02 – MAP 3 LOT 10:
Chair Leib explained that the Board is comprised of five (5) members, requiring a vote of three (3) in the affirmative to pass a motion. He stated that tonight’s meeting was for a re-hearing of an original appeal by the Neighborhood Guardians to the issuance of a building permit to Garrison Lane Real Estate Trust (a/k/a USA Springs), which was denied back in December.
Chair Leib read the motion for a re-hearing for the record. He stated that Neighborhood Guardian’s contention was that the building permit should not have been issued because the DOT driveway permit was not in ‘full force and effect’. He stated that the evidence the Board had at that time led it to believe that is was in effect, and the appeal was denied. Neighborhood Guardians then appealed the decision of the ZBA contending that the meeting held on December 19, 2006 should have been noticed as a ‘development of regional impact’. He clarified that the State Statutes that the Board Members have read are ambiguous as to whether that was necessary in a hearing that did not involve the development stages of the project, however, they agreed to re-hear the original motion.
Mr. Russo took the floor. He asked if the Board had received a copy of the newest appeal to DOT. Chair Leib stated they had. He asked people to keep in mind that they were appealing the issuance of a building permit back in December. Mr. Russo handed out a typed legal opinion from the Local Government Center. Mr. Russo reiterated that the Neighborhood Guardians had not had a ruling on their appeal to DOT back in November, when the building permit was issued. He stated that according to the legal opinion from LGC, a permit is not in ‘full force and effect’ when it is under appeal. He stated that with that knowledge, the driveway permit is still not in ‘full force and effect’. Chair Leib stated it is still a valid driveway permit. Mr. Russo stated it is not a valid
driveway permit until all appeal options are exhausted. Chair Leib stated that that was only a legal opinion of LGC. Mr. Russo stated that the Town is a paying member and can obtain free legal advice from them.
Chair Leib stated that back at the meeting in December he informed Neighborhood Guardians that he had been in contact with Mr. Dobbins from DOT, although he did not have documentation of that in time for the meeting. He stated that the e-mail had been received and read it for the record. Mr. Dobbins stated that a driveway permit issued from the Bureau of Highway Maintenance District is valid until revoked and, therefore, valid during the appeal process. He further stated that the District had reviewed the permit and the associated litigation and felt that it met the standards necessary for the issuance of a permit.
Mr. Russo noted for the record that Attorney Sanderson, the responding attorney from LGC, was formerly the Hearings Examiner for the DOT. He stated he trusts his opinion. Chair Leib stated that the Board had the opinion of someone who worked for and represented DOT. He asked Mr. Russo if he had anything further to present.
Mr. Russo stated it is the Neighborhood Guardians position that the driveway permit continues to be under appeal and is not in ‘full force and effect’. Mr. Howard stated that the Board has not received anything from DOT stating that a permit is not valid when it is in under the appeal process.
Chair Leib asked people to identify themselves before speaking. Attorney Armand Hyatt stated he was present on behalf of the property owner, Garrison Place Real Estate Trust. He noted for the record that the Building Inspector had obtained legal advice from Town Council prior to issuing the building permit. He also noted that he was disturbed that the Board was being handed documentation that had not been provided to the land owner or any representatives thereof. Attorney Hyatt stated that the appeal of the Building Inspector’s decision to issue the permit is not an appeal to an administrative decision, since that is an exterior function in his capacity. He stated that he would like to reserve the right to make comment upon the documents handed out, once he has had the opportunity to review them.
Chair Leib asked Mr. Russo if he had extra copies. Mr. Russo handed them over to Attorney Hyatt. Attorney Hyatt objected to the legal opinion submitted, since there was no signature. Mr. Jordan asked when the legal opinion was obtained. Mr. Russo stated is was last week. Mr. Russo beseeched the Board to contact the legal department at DOT, stating that Mr. Dobbins is on a different arm of DOT. Chair Leib clarified that Mr. Dobbins is in charge of the engineers who issue the permits. Mr. Russo stated that once the permit is under appeal it becomes a legal issue.
Mr. McCann from Save Our Groundwater stated that they were parties to the appeal by Neighborhood Guardians to the DOT and felt part of the problem is that not all information has been shared between parties. He stated that representatives of Garrison Place communicated with DOT to have the permit extended, however, SOG and NG had not been copied. He stated that Neighborhood Guardians have already filed an appeal with DOT and SOG plans to do the same. He felt that based on those two appeals the driveway permit is still not in ‘full force and effect’. He further stated that Mr. Hadley had obtained, independently, a legal opinion from the staff attorney at LGC, which is part of the municipal association to which the town belongs. Mr. McCann stated that an attorney who represents an organization to which
the Town belongs is stating that the permit is not in ‘full force and effect’. He urged the Board to get independent legal advice before making a final decision. Chair Leib explained that the Zoning Board does not need to look back at all the appeals and so forth that have taken place. He clarified again that the question before the Board is whether or not the driveway permit was valid when the building permit was issued. He stated again that the information they have, straight from DOT, is that the permit was valid. Mr. McCann stated that the Board is receiving contradictory information from DOT and LGC. Chair Leib stated that the Board had received a policy statement from DOT and a legal opinion from LGC, which are not the same thing. Mr. McCann stated the Board should get a third party legal opinion before making a decision. Mr. Howard stated that the Building Inspector did get legal council prior to issuing the
permit.
Mr. Bock stated that legal advice had been sought from Attorney Tupper Kinder (sp??) and that the Board of Selectmen believe all standards had been met to warrant the issuance of the building permit. He stated that the Board of Selectmen had not seen the legal opinion from LGC, however, he was aware that LGC supports many municipalities but not in the area of legal advice. Mr. Howard asked Attorney Hyatt to clarify a legal opinion. Attorney Hyatt stated he found the document to be suspect noting that there was an end quote at the end of the paragraph that did not correlate to any open quote. He also noted that the final paragraph ends with the final statement, “Based on this message, I would add…,” when there is no predicate, no message. Attorney Hyatt stated the document appeared to have been
copied and pasted in haste, or surreptitiously, or somehow it came into being. He further stated it may turn out to be a sad day when it was ever presented to this Board. He noted it is unsigned, undated. Attorney Hyatt stated that they are just trying to complete a project that they have spent years taking through the legal process. He noted that he had a copy of a letter written to Mr. Russo from the Attorney General’s Office. Chair Leib stated the meeting was getting off track.
Mr. Russo clarified that that legal opinion was an excerpt from an e-mail from Paul Sanderson to Jim Hadley. He stated he had the e-mail if the Board wanted to see it.
Mr. Howard stated again, that the Building Inspector had obtained legal advice before issuing the permit and was told to issue the permit. He noted that Chair Leib had followed up with DOT on their policy and had received written documentation that the permit was valid, regardless of the appeals. He stated the Building Inspector had done what he was supposed to do. Mr. Russo noted for the record that Attorney Teague’s primary function is education law, he is not an expert in land use. He stated he has repeatedly implored the Town to hire a different attorney for specialty areas. He, again, pleaded with the Board to contact the legal division of DOT, not the permitting office. Mr. Howard stated that the Town had received legal advice and confirmation of a valid permit from DOT. Mr. McCann stated
that he felt his earlier argument of conflicting advice was still valid and the Town should seek another opinion.
Attorney Hyatt noted for the record that in a re-hearing, the Board can only consider any evidence that could not have been available to the petitioner at the time of the original hearing. Mr. Russo stated he has asked the Board several time to seek out the advice of LGC. Chair Leib stated that DOT policy states the permit was valid. He stated it may not be a lawful policy for them to have, however, it is their policy. A woman from the audience stated that that cannot be found in any of their literature and that is was Mr. Dobbins opinion. Mr. Leib stated it is DOT policy.
Mr. George Bailey stated that he is a Selectman and a member of the ZBA from the Town of Barrington, however, he was not here representing either Board. He stated that in fairness to both parties, he would ask the Board to consider postponing this hearing to another date for a chance to assemble all the correct information on whether or not the driveway permit is in force. Attorney Hyatt stated that he felt the Board already had DOT’s answer to the question. Mr. Russo stated that DOT’s policy or permitting manuals state the policy. Attorney Hyatt pointed out that the Board has been informed directly form a DOT representative.
Mr. McCann asked if the policy from DOT was given in writing. Chair Leib stated that it was given in an e-mail. Mr. McCann stated he agreed with Mr. Russo, that he had read the policy manual and that policy was not in there. Chair Leib stated he did not see it addressed in the policy manual. Mr. McCann stated that there is conflicting opinions and that the Town needed to get a third party opinion before making a decision. He stated that the Zoning Board is governed by RSA’s, not DOT policy. Chair Leib stated that they have two opinions and a stated policy. He stated the policy is from the supervisor of the people who issue permits. Mr. McCann stated that the ZBA is not bound by DOT policy. Mr. Leib stated that the question before the Board tonight was whether or not the driveway
permit was valid on November 22, 2006 when the building permit was issued. He stated that according to the information from DOT, yes, it was.
Mr. Hadley, Selectman from Northwood, handed out a letter to the members of the Board. He stated that the Board had relied on a maintenance person at DOT, Caleb Dobbins and he had concerns. He informed the Board that he had e-mailed LGC staff attorney, Paul Sanderson, who was listed as the 2003-2004 State of NH directory as the Hearings Examiner for DOT. He read for the record the last paragraph of Attorney Sanderson’s response. He recommended that the Chair have a conversation with Attorney Sanderson. Mr. Hadley stated that Nottingham pays dues to LGC and should verify with an attorney to which they have access. Chair Leib clarified that Mr. Hadley was stating that as soon as the appeals process started, they driveway permit became invalid. Mr. Hadley stated that was correct, it has been
invalid since May of 2005. Chair Leib questioned why DOT would renew the permit if it was invalid. Mr. Hadley replied that that was a maintenance person in District 6, not an attorney who knows DOT rules, regulations and statutes. Mr. Hadley stated that policy needed to be verified with the top person at DOT, a Hearing Examiner, who is an attorney or with LGC. Attorney. Hyatt responded that the Board did not need to go any further stating that they already had documentation of policy from a representative of DOT. He further stated that they Building Inspector refused to take the funds for the building permit until a list of 14 items was addressed, including extension of the driveway permit. Attorney Hyatt stated that this case has resonated through DOT and policy on this was not given by some low level worker. He noted that the second appeal has been denied by the Hearings Examiner.
Mr. Hadley referred to the minutes of the December 19, 2006 meeting, noting that Chair Leib had stated that the Neighborhood Guardians could file an appeal if they could provide proof the driveway permit is suspended when under appeal. Chair Leib stated that an opinion was provided, not proof. Mr. Hadley stated that he had requested the Board to verify it with DOT legal. Mr. Leib stated that he has DOT policy. Mr. Hadley stated that he also had free access to LGC. Mr. Leib stated again that that is an opinion. Mr. Hadley stated that District 6 has no people who can make a legal opinion like that. He stated that he has saved the Town of Northwood hundreds of dollars using LGC over the years. Mr. Morin stated that Attorney Sanderson’s response refers to the permit being in ‘full force
and effect’, however, does not clarify that term. Mr. Hadley stated he could get more information if the Board provided the 30 days they are allowed. Chair Leib stated they cannot wait until another meeting to see new evidence. It needs to end tonight.
Bill McCann stated there has been a lot of errors. He felt the Board should really clarify this and put an end to it. He stated that they are residents of the Town, and they are asking for justice and asking for the Board to be really sure to make the right decision.
Chair Leib asked if anyone was prepared to make a motion. There was no response.
Chair Leib stated that he can appreciate the opinions of the LGC, however, in his mind, he had to follow the confirmation on DOT policy.
Chair Leib entertained a motion to again deny the appeal of the Neighborhood Guardians to the administrative decision made by the Building Inspector to issue the building permit on November 22, 2006 for property at 145 Old Turnpike Road, Map 3 Lot 10. Mr. Jordan seconded the motion. All in favor by a vote of hands. Motion passed 5-0.
Mr. Rourke inquired about the second case. Chair Leib reported they had requested a continuance.
CASE 07-01 – MAP 68 LOT 92:
Chair Leib opened the hearing at 8:35 PM
Mr. Rourke inquired about the site walk. Mr. Morin reported that the balloon worked very well for a visual.
Chair Leib stated that Mr. Riley requested a continuance to March 27, 2007. Mr. Rourke suggested recessing it until April 3, 2007 stating elections could be held at the same meeting.
Mr. Rourke made a motion to recess Case #07-01, Map 68 Lot 92, until April 3, 2007 at 7:30 PM. Mr. Jordan seconded the motion. All in favor. Motion passed 5-0.
OTHER BUSINESS:
Ms. Chauvey stated she had minutes from January 30, 2007 to distribute. Chair Leib suggested approving them at the next meeting to give the Board time to review them. Ms. Chauvey asked if the Board was ready to approve the site walk minutes. Chair Leib stated they were.
Mr. Morin made a motion to accept the minutes of the February 6 site walk. Mr. Jordan seconded the motion. All in favor. Motion passed 3-0.
Mr. Rourke made a motion to adjourn the meeting. Mr. Howard seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned 8:45 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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