NOTTINGHAM ZONING BOARD OF ADJUSTMENT
SEPTEMBER 11, 2007
Approved November 13, 2007
VOTING MEMBERS PRESENT: MEMBERS ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Jordan
Mr. Mike Russo Mr. Jim Crowell, Alternate
Mr. Kevin Bassett (arrived at 7:40 PM)
Mr. John Morin
Mr. Jim Howard
OTHERS PRESENT:
Atty. John Teague
Mr. Terry Bonser
Ms. Traci Chauvey, ZBA Secretary
Chair Leib called the meeting to order at 7:06 PM.
DISCUSSION:
The Zoning Board of Adjustment has received a second rehearing application from Attorney John Ahlgren on behalf of Athanasios Papadopoulos. This application is a motion for a rehearing of the decision by the Nottingham Zoning Board of Adjustment on June 26, 2007, followed by the formal notice of decision on July 6, 2007, denying by a vote of 3 to 2 the rehearing on the appeal by Athanasios Papadopoulos to the issuance of a building permit to Terry Bonser for Tax Map 24, Lot 95. The Board is discussing whether, or not, a rehearing is appropriate in this case.
Chair Leib informed everyone present that this application was for a rehearing of the first rehearing and that discussion would center on whether or not to accommodate that request. He noted that the Zoning Board’s attorney, John Teague was in attendance to provide the ZBA with his opinion. Chair Leib stated he had read both motions for a rehearing and found one paragraph to be different between them. He asked Attorney Teague to speak.
Attorney Teague stated that the motion for a rehearing is an unusual motion because it is a request for a second rehearing. He noted that the 30-day time limit to send something to Court started when the vote was taken and the decision made at the first rehearing. He stated that submission of this request for a second rehearing does not interfere with that time limit. He explained that a request for a rehearing must present new law or new facts that were not presentable at the first hearing; there must be new aggrievements. He added that it must be a new act that creates an aggrieved party or a law that has been misread and provides a new opportunity to correct that error of law.
Attorney Teague informed the ZBA that they could disregard the whole motion with the exception of Paragraphs 15 and 16, as these are the only two paragraphs different from the original motion for a rehearing. Chair Leib noted that there are also new references to himself in Paragraph 4, stating that he improperly took evidence. Attorney Teague stated that he did not see anything significant in Paragraph 4. Mr. Russo added that it says Chair Leib improperly took evidence over objection. Attorney Teague stated that that could be considered, however, it does not go to the merits of the case. He noted that there was a divided board on this case and this issue should have been, and was, raised at the first rehearing. He added that anything that came out of that meeting was appealable to the Court and that is
what should have happened. He stated that this motion should contain some new aggreivements that go to the substance of the issue not some procedural issue, noting that that is not grounds for a new rehearing.
Attorney Teague stated he had a conversation with Attorney Ahlgren who agreed that there needs to be something new in the motion, adding that Attorney Ahlgren had informed him that he had included new information. Attorney Teague stated that the issue before the Board is whether there is anything new that could not have been presented at the last hearing. He stated that a procedural issue could be reason for a rehearing if it went straight to the heart of the matter, adding that if it did then the Board could legitimately grant the motion to rehear and do it all over again. Referring to time limits in a ZBA case, Attorney Teague noted that for the applicant, the 30-day time limit for everything that could have been presented at the first hearing is already running. He informed the Board that if they were to grant the
motion to rehear it and make new findings, a Court will look to see if the motion really presented something new and if they feel it does not, they will ignore what the Board has done. He noted that this case is already beyond the time to appeal to the Court, adding that it is up to the Board to decide if there is something new.
Chair Leib, speaking to members of the board, asked them to review Paragraphs 15 and 16, noting that these were the only two Paragraphs that differed from the first motion for a rehearing. Mr. Russo stated he felt Paragraph 4 was also poignant in that in the original hearing there was not a complaint that the Building Inspector’s file was not available for the rehearing meeting. Chair Leib stated that he feels it was up to the applicant to be sure the file was available since it was the applicant’s complaint that the file was not complete. Mr. Russo, speaking from personal experience, stated that he has found it difficult to obtain information from the Town Offices, adding that one issue is that it can be difficult to get there during office hours.
At Chair Leib’s inquiry, Attorney Teague informed the board that he interprets Attorney Ahlgren’s words ‘manifest actions’ to mean what has happened on the ground, how people treated the lot. He added that there is much evidence as to what was implied and whether it was treated as a building lot. He summed up saying he interprets ‘manifest actions of the developer’ to mean how they treated the lot, how they acted around it physically and in terms of selling other property. Chair Leib asked if that would include a real estate agent who was selling the properties 20 years after the development was created. Attorney Teague stated it does not include third-party reference.
Mr. Bonser stated that the motion appeared to be a rehash of the original motion. Chair Leib informed Mr. Bonser that he was not allowed to speak at this meeting. Mr. Bonser felt that he had a right to rebut the motion for a rehearing. Chair Leib stated that this was a public meeting of the Board to decide whether the case should be reheard, not a public hearing. Mr. Bonser conceded.
Attorney Teague stated that Mr. Russo had made an interesting point regarding the file not being available for the meeting, but noted that the motion goes on to specifically say what was missing from the file, therefore the evidence was presented to the Board. Mr. Russo stated that he did not remember the improper taking of evidence or the objection. Attorney Teague stated that Attorney Ahlgren had made a complaint that the Chairman had spoken to the Building Inspector. Mr. Russo confirmed with Attorney Teague that this was a conversation that took place outside of the hearing. Attorney Teague noted that this could be a very serious accusation, however, looking at the substance of what was talked about, by the time of the rehearing it is certain that everybody knew what was missing.
Chair Leib stated he is confused by RSA 677:3, Notes to Decision No. 4. Attorney Teague stated that in 90% of all ZBA cases there is a motion for a rehearing because that is the proper procedure to appeal it to the Superior Court. It gives the ZBA a chance to correct an error. He further stated that in 90% of those cases, the ZBA denies the motion for a rehearing because the case has been heard and there is nothing new. He stated that the 30-day time limit starts running on the appeal to Superior Court when the decision is made. He noted that this case is one of the 10% where it was granted a rehearing, which puts the case on a slightly different course. He stated that the ZBA held the rehearing and came to the same conclusion, noting that the 30-day time limit now began when this second decision was
made. He stated that the proper course for someone loosing twice is to appeal. Attorney Teague stated that if the Board had reversed its decision after the rehearing, the party from the other side now has the opportunity to file a motion to rehear. Attorney Teague stated that Attorney Ahlgren has filed a motion to rehear the decision the Board had made to reaffirm their original decision, noting that it is a duplicate of the first motion to rehear unless there was something in the procedure or findings of the first rehearing that creates a new aggreivement. He stated that he felt Attorney Ahlgren was concerned about the 30-day time limit.
Chair Leib confirmed with Attorney Teague that Attorney Ahlgren’s motion for a rehearing of the rehearing would have to contain something new that was not presented at the original rehearing, noting that that would only be Paragraphs 15 and 16. Mr. Russo stated he felt that the only new evidence was presented in Paragraph 4, adding that he felt Paragraphs 15 and 16 were just a rewording of issues raised in the prior motion. Mr. Russo stated he felt the issue in Paragraph 4 ties in with another case that is to come before them. He asked if the Board could avoid this situation by having the Building Inspector present at the meetings since it is his actions that are being appealed. Chair Leib asked members to read Paragraph 4 to see if they think a rehearing should take place. Mr. Russo asked if the other
members agreed with himself and Chair Leib that 15 and 16 were a rehash. Chair Leib stated that 15 and 16 are new in that the original motion for rehearing did not include paragraphs numbered 15 and 16.
Chair Leib summed up Paragraph 4, stating that it says that at the time the permit was issued the file did not contain a copy of the registered deed including covenants, but noted that those items were presented at the hearing. Mr. Russo stated that he did not see the file. Chair Leib stated that Mr. Bonser, through his attorney at the first meeting, presented all that information. Mr. Russo stated that he understands that the ZBA was presented with that information at the meeting, but the question before him is whether the Building Inspector had that information in his file and he does not know the answer. Chair Leib stated that he had taken the word of the Building Inspector who had informed him that he had all he needed in order to issue a building permit.
Chair Leib stated that Paragraphs 4, 15, and 16 did not present to him any new information or aggreivement. Mr. Howard stated that at the last meeting they had held to discuss a rehearing for this case, his question had been related to the responsibilities of the Building Inspector and whether he was supposed to consider covenants. He added that he had made the motion for a rehearing based on his request for the Building Inspector’s job description, but noted that he had never gotten a response to that request. He stated that, at that time, he felt that the Board had to rehear the case and to find out if it was the Building Inspector’s responsibility to seek this type of information. Mr. Howard stated that the Chair had informed them that the Building Inspector had stated that he had everything he needed
and based upon that he did not find any new evidence. Mr. Morin stated that he did not think they should rehear the case as there was nothing new.
Mr. Bassett arrived at this time (7:40 PM).
Mr. Howard made a motion to uphold the decision by the Nottingham Zoning Board of Adjustment on June 26, 2007, followed by the formal notice of decision on July 6, 2007, denying by a vote of 3 to 2 the rehearing on the appeal by Athanasios Papadopoulos to the issuance of a building permit to Terry Bonser for Tax Map 24 Lot 95. Mr. Morin seconded the motion. Chair Leib, Mr. Morin, and Mr. Howard voted in favor of the motion. Mr. Russo voted against the motion. Motion passed 3-1. Chair Leib stated that the Board passed this motion based on the belief that there was no new evidence in the motion.
OTHER BUSINESS:
Chair Leib asked Mr. Bassett to sit in for Mr. Jordan.
Ms. Chauvey asked Chair Leib to confirm with Attorney Teague whether his presence was being requested at the meeting to take place on September 18, 2007. Chair Leib informed Attorney Teague that he did not feel Attorney Teague would need to be present.
Mr. Russo stated he felt it would behoove the Board to have the Building Inspector present at the next meeting.
Chair Leib stated that the Neighborhood Guardian’s appeal is based on the contention that there were two State permits missing when the building permit was issued. He further noted that the permits that are being referenced are permits that are part of the Court approved conditions between the Town of Nottingham and Garrison Place Realty Trust (a/k/a USA Springs) and not in the Zoning Regulations. Attorney Teague clarified the approved conditions, noting that they called for the continuing validity of the permits being referenced in the appeal. He further stated that the validity of permits under appeal is still being questioned. Chair Leib stated that the site specific and dredge & fill permits referenced in the appeal are not requirements in Nottingham’s Zoning Ordinance. Attorney Teague stated
that it is a Planning Board stipulation that pulls in these other permits and makes them part of the approval. Mr. Russo stated that there is no settled case law for this situation.
Mr. Bonser questioned the process currently taking place, noting Mr. Russo’s involvement with the group that submitted the appeal. Attorney Teague stated that this is just a discussion, not the hearing. Mr. Bonser noted he was not allowed to speak during the discussion of the appeal against him. Mr. Russo stated that he is not representing the Neighborhood Guardians next week. Chair Leib stated that this is just an informational meeting. Attorney Teague confirmed that they were just having a procedural discussion, stating there would be no discussion of the merits of the case.
Chair Leib inquired as to the relationship between the Planning Board’s approval and the Zoning Ordinances for which the ZBA has jurisdiction over. Attorney Teague stated that the ZBA does not only have jurisdiction over the Zoning Ordinance, that they also have jurisdiction over administrative decisions. Chair Leib stated that he thought jurisdiction over administrative decisions was also based on the relationship to the Zoning Ordinances. Attorney Teague stated that an appeal to the issuance of the building permit, itself, or whether the permit is still valid is not an issue that comes under the zoning ordinance. He stated that this is something that comes before the Zoning Board of Appeals, noting that something is being appealed because someone has already looked at it and made a decision. Chair Leib
stated that he thought the appeal from an administrative decision needed to be based on the applicant’s interpretation of the Zoning Ordinances. Attorney Teague stated that this is not so, noting that it could be an improper issuance of the building permit, or the refusal of issuance, or as in this case whether there are valid permits. Attorney Teague stated that part of the Zoning Ordinance is that other ordinances are adhered to. He stated that the ZBA must consider what is brought forth. He stated that the applicant cannot take a decision of the Building Inspector and appeal it to the Planning Board or Board of Selectmen, noting there is no where else for the applicant to go but to the ZBA.
Mr. Russo stated that the procedural issue he wanted to address was whether the ZBA wanted to compel the attendance of the Building Inspector for next week’s meeting. Chair Leib stated that it may be beneficial for them to ask him to attend.
Mr. Bassett asked for clarification of the laws governing the Planning Board conditions. Attorney Teague informed Mr. Bassett that State law gives the Planning Board the ability to attach conditions to an approval. He stated that the conditions in this case included other permits being in place, noting that if those permits are not in place then the site plan approval itself is in jeopardy. He stated that the Building Inspector is responsible to make sure the conditions have been met when issuing a permit. Attorney Teague stated that when the Building Inspector issues a permit, over objection, that decision is an appealable decision and that it would go to the Zoning Board of Appeals.
Chair Leib read a section of RSA 674:33, Powers of the Zoning Board of Adjustment, and informed Attorney Teague that this is where he got his understanding that appeals must pertain to the enforcement of the zoning ordinances. Mr. Russo stated that this would fall under RSA 674:34, Powers of the Building Code Board of Appeals. Chair Leib asked what the difference is between the Board of Appeals and the Board of Adjustment. Mr. Russo stated he believes that the Board of Adjustment deals with items in zoning such as the variances and special exceptions but that the Board of Appeals deals with administrative decisions. Chair Leib stated that his confusion came because he did not realize they filled the requirements of two separate boards. Attorney Teague stated that is a good issue to be raised at the
appropriate time.
Chair Leib, rejecting his earlier comment regarding the upcoming meeting, asked Attorney Teague to attend the meeting next Tuesday, September 18, 2007. Attorney Teague stated he would be in attendance.
Mr. Russo, noting that he was not aware of an official process to request the presence of an employee at a meeting, asked if he needed to make a motion to have the Building Inspector present. Chair Leib stated that the Zoning Board has the power to command an employee’s attendance. He suggested going through the formal routine of sending a memo to the Town Administrator to request the Building Inspector’s presence. Mr. Russo requested that the memo state that the ZBA would like the file also. Attorney Teague cautioned the members to speak only about procedure, noting that talk of subpoenaing a witness should take place at the hearing when everyone is present. He further stated that there is no harm in asking someone to attend, however, a demand should not be made.
OUTSTANDING BUSINESS:
Minutes:
June 12, 2007:
Mr. Howard made a motion to accept the minutes of the June 12, 2007 meeting, as written. Mr. Russo seconded the motion. Mr. Russo, Chair Leib, Mr. Morin, and Mr. Howard voted in favor. Mr. Bassett abstained. Motion passed 4-0-1.
June 19, 2007:
Mr. Howard made a motion to accept the minutes of the June 19, 2007 meeting, as written. Mr. Russo seconded the motion. Mr. Russo, Chair Leib, Mr. Morin, and Mr. Howard voted in favor. Mr. Bassett abstained. Motion passed 4-0-1.
June 26, 2007:
Chair Leib noted two corrections on Page 2 in the next to the last paragraph; Bonser was written as Bonner; and plants on was written as plantson.
Mr. Howard made a motion to accept the minutes of the June 26, 2007 meeting, with the above noted corrections. Mr. Russo seconded the motion. Mr. Russo, Chair Leib, Mr. Morin, and Mr. Howard voted in favor. Mr. Bassett abstained. Motion passed 4-0-1.
Mr. Bonser stated he was surprised that the recorded vote of the motion on June 26 was 3 to 2 in favor because he believed that Mr. Jordan had abstained from the vote. He stated that he did not think it was a big issue, he just wanted to note that he had thought Mr. Jordan abstained.
New Applications:
Ms. Chauvey informed the ZBA members that she had hoped to get a response from them this evening on the new applications that she had mailed to them for review. Mr. Russo and Chair Leib stated they did not have their copies with them. Mr. Bassett thought they should be reviewed at the next meeting. Chair Leib stated he believed it was going to be a long meeting and suggested reviewing them at the next meeting to be held in October. Ms. Chauvey stated that there are currently no cases scheduled for October. Chair Leib stated that the new forms could be used in the mean time. Ms. Chauvey expressed concern over the possibility that she could have put something seriously erroneous on them and they have not been reviewed. Chair Leib stated he did not recall anything of that nature. Mr. Howard stated
he thought they had already discussed the new forms. Mr. Russo stated that they had discussed them and made some revisions. Ms. Chauvey stated that she had inquired about formatting and other information that she felt should be included that evening and has since incorporated new items into/on the applications. Ms. Chauvey noted that the new applications she mailed to members are quite different from what was presented at the meeting the night they were discussed. Ms. Chauvey stated that she still had some minor changes to make but did not want to put more time in them until the members has a chance to provide feedback.
Budget:
Ms. Chauvey asked the ZBA if she could use the remainder of their training funds towards a conference she wanted to attend on November 14 in Concord. She informed them that they put $150 in the budget for training and, to date, $84 of it had been used. Chair Leib told Ms. Chauvey it was ok for her to use the remaining funds.
Misc:
Mr. Russo offered to provide Chair Leib a copy of the Building Inspector’s job description. Mr. Morin asked to receive a copy also. Chair Leib stated he does not care what the Building Inspector does.
Chair Leib read the mail and informed members of upcoming trainings and conferences. Ms. Chauvey stated she would need completed registrations returned as soon as possible for anyone wishing to attend and of the trainings.
Mr. Russo made a motion to adjourn the meeting. Mr. Bassett seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at approximately 8:20 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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