NOTTINGHAM ZONING BOARD OF ADJUSTMENT
SEPTEMBER 18, 2007
Approved November 13, 2007
VOTING MEMBERS PRESENT: VOTING MEMBERS ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Jordan
Mr. Mike Russo Mr. Jim Crowell, Alternate
Mr. Kevin Bassett
Mr. John Morin
Mr. Jim Howard
OTHERS PRESENT:
Atty. John Teague
Atty. Tony Soltani
Mr. Jim Hadley
Mr. Paul Colby
Ms. Mary Bonser
Ms. Diane Kirkwood
Mr. Dan Kirkwood
Ms. Traci Chauvey, ZBA Secretary
Chair Leib called the meeting to order at 7:08 PM. He explained to all present that the Zoning Board is a five (5) member Board and that it takes a vote of three for a motion to pass. He further explained that one regular member, Mr. Kevin Jordan, was unavailable. He asked alternate member, Mr. Kevin Bassett, to sit for Mr. Jordan.
Case 07-07 Application from Neighborhood Guardians, c/o James Hadley, Chairman, for an Appeal to an Administrative Decision made by the Building Inspector for issuing a building permit (#085-07) to Garrison Place Real Estate Investment Trust (a/k/a USA Springs, Inc.) on July 26, 2007, for property located at 145 Old Turnpike Road, Nottingham, New Hampshire, identified as Tax Map 3 Lot 10.
Chair Leib stated that the Neighborhood Guardians appeal application contends that two of the permits listed in the stipulation agreement between the Nottingham Planning Board and Garrison Place Real Estate Trust were not valid when the building permit was issued. Chair Leib further explained that the stipulation agreement between the Nottingham Planning Board and Garrison Place Real Estate Trust was filed in Superior Court in relation to the site plan approval of the Planning Board and that the two violations referred to by the Neighborhood Guardians was the site specific permit and the dredge & fill permit. Mr. Hadley concurred.
Chair Leib informed Mr. Hadley that he had done quite a bit of research because he was not sure of the Zoning Board’s authority in this matter. Referencing the application and the RSAs regarding Zoning Board authority, he noted that the Zoning Board only has the authority to hear cases in relation to the zoning ordinances. He stated that the last appeal filed by the Neighborhood Guardians had fallen within the authority of the Zoning Board because it was an appeal that contended the driveway permit was not valid and a valid driveway permit is a condition of the zoning ordinances. He further noted that the zoning ordinance does not include or reference such things as the stipulation agreement made between the Planning Board and Garrison Place Real Estate Trust in relation to the site plan review approval. He
asked Mr. Hadley if he could identify where the Building Inspector had misinterpreted the zoning ordinance in issuing the permit.
Mr. Hadley introduced himself and stated that he was now Chairman of Neighborhood Guardians.
Chair Leib interrupted Mr. Hadley at this time to address Mr. Russo’s relation to the Neighborhood Guardians. He noted that Mr. Russo, now a member of the Zoning Board was previously Neighborhood Guardians’ Chairman. He stated that Mr. Russo had informed him that he did not intend to disqualify himself. Chair Leib felt the Zoning Board should discuss this issue and take a vote, for the record, on whether or not they felt Mr. Russo should recuse himself. In response to an inquiry from Mr. Bassett, Mr. Russo stated that he was Chairman of Neighborhood Guardians for approximately one and one-half years. Mr. Russo, reading from RSA 673:14 I, stated that he had informed Chair Leib that his decision to not recuse himself is based on the belief that his direct personal or pecuniary interest in the outcome
does not differ from the interest of other citizens. Chair Leib, also referencing RSA 673:14 I, stated that he was more concerned with the statement, “…or if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law.” He stated that he believes that Mr. Russo’s past association with Neighborhood Guardians would preclude him from sitting as a juror in a matter of law. Mr. Hadley confirmed with Chair Leib that if Mr. Russo stepped down, the applicant has the right to continue the hearing until such time as five voting members could be present. Chair Leib informed Mr. Hadley that any vote taken by the Board to disqualify Mr. Russo would be a non-binding vote. He noted that the RSAs only allow for members to disqualify themselves. Mr. Russo noted for the record that all issues raised against Garrison Place Real Estate Trust during his term as Chairman were issues
related to safety in the neighborhood. Attorney Soltani, Council for Garrison Place Real Estate Trust, stated for the record that they were opposed to Mr. Russo sitting on the Zoning Board for this case and that they did not intend to waive their right in regards to this issue. Attorney Teague confirmed that the applicant has a right to be on record as opposing the participation of a board member, noting that it was Chair Leib who called for a vote. Attorney Soltani stated that they are in opposition of Mr. Russo sitting on the Board for the hearing because he has acted as an attorney-in-fact in several matters of opposition to the USA Springs project and until recently he had been a representative of the party bringing forth this petition. He stated that Mr. Russo does not meet the NH Juror Standard, noting that the law is so clear and well established that they would hold the Town responsible for knowingly violating it. Chair Leib stated that the
vote by the Board would be non-binding, that only Mr. Russo had the power to recuse himself. Attorney Soltani agreed, stating that Mr. Russo would be acting as an agent for the Town of Nottingham. Attorney Teague took exception stating that no decision should be make under the pretext of holding the Town liable.
Chair Leib polled the Board asking those who felt Mr. Russo should recuse himself to raise their hand. By a show of hands Chair Leib, Mr. Morin, Mr. Bassett, and Mr. Howard felt Mr. Russo should recuse himself. Mr. Russo abstained.
Attorney Hyatt, Council for Garrison Place Real Estate Trust, asked Mr. Russo if he planned to recuse himself in light of the Board’s vote. Mr. Russo stated he was not recusing himself.
Moving the meeting along, Chair Leib stated that the first thing that needed to be established was whether or not the Zoning Board had the authority to hear this appeal. He asked Mr. Hadley to show him how the zoning ordinances had been violated by issuance of the building permit. Mr. Hadley directed the Board to Attachment E, which listed the required State permits. Chair Leib stated that this list was in reference to a site plan approval, not the zoning ordinances. Mr. Hadley disagreed, stating that the approval states that all these permits must be valid before a building permit can be issued. Chair Leib informed Mr. Hadley that the zoning ordinance does not require these permits to be valid. Mr. Hadley agreed, stating that the site plan approval does. Chair Leib agreed that the permits are a
condition of the site plan approval, however, the Zoning Board only has the authority to hear appeals of an administrative decision if there has been a perceived violation of the zoning ordinances, noting again that the conditions of the site plan approval are not part of zoning. He stated that the Board does not have the authority to hear an appeal against any other Town body unless the appeal relates to interpretation of the zoning ordinances. Chair Leib read from RSA 674:33. He then read from Section VII of the Zoning Ordinance, noting that the only State permit requirement is the driveway permit. Mr. Hadley asked about the dredge and fill permit. Chair Leib informed Mr. Hadley that the dredge and fill requirement came from the Planning Board, adding that if the dredge and fill permit was listed in this section, then the Zoning Board would have authority over this case. Mr. Hadley asked if the Zoning Board would be willing to get a second
opinion from the Local Government Center. Mr. Russo asked Chair Leib who would have jurisdiction over this type of issue. Chair Leib stated that if someone has an issue with a condition set by the Planning Board, he believes it should be brought to the Planning Board. He added that in this particular case, the conditions were set and approved by the Superior Court and he believed that if they are being violated, someone would have the right to bring it back to the court. Chair Leib asked Attorney Teague to comment. Attorney Teague stated that the RSAs are clear in that jurisdiction of the ZBA is in relation to the zoning ordinance. At Mr. Russo’s inquiry, Attorney Teague stated that issues with site plan approval should be addressed with the Planning Board. Mr. Russo stated that the Planning Board is not set up as an administrative court. Attorney Teague agreed that they are not, but stated that they do have the authority to
rescind their approvals. He reiterated Chair Leib’s comment that unless the issue is somehow tied to the Nottingham Zoning Ordinance, the Nottingham ZBA does not have authority.
Mr. Hadley, referencing Attachment C (RSA 676:6) asked the Board if work had ceased at the site. Chair Leib read for the record, a memo from the Building Inspector stating that work at the site was to continue due to safety issues.
Mr. Bassett asked Chair Leib for clarification on the Zoning Board’s authority. Chair Leib referred Mr. Bassett to Section XI of the Nottingham Building Code and Zoning Ordinances and to NH RSA 674:33. Mr. Hadley stated that this is a unique situation. He informed Chair Leib that the Neighborhood Guardians intended to follow up with NH RSA 677:3 for a rehearing and asked Chair Leib what the process would be if the Zoning Board was to find that they are authorized to hear this case. Chair Leib stated that the Board would take a vote tonight as to whether or not they believed they had the authority to hear this case. He informed Mr. Hadley that a rehearing option is open to them. At Mr. Russo’s inquiry, Attorney Teague stated it was the Selectmen’s responsibility to enforce conditions set
by the Planning Board on a site plan approval. He added that the Selectmen have the authority to order a cease and desist notice; however, the Planning Board has final authority over whether to revoke an approval. Mr. Bassett inquired as whether the Zoning Board would have authority over all the conditionally required permits due to the fact that they were grouped together in a list with the driveway permit, which is a requirement of the zoning ordinance. Chair Leib stated that the zoning ordinance does specify the driveway permit as a requirement but does not say anything about any other State permits (as may be required). Noting that the ordinance is lax, he added that he felt they would have authority if a requirement for issuance of a building permit was that all conditions of site approval must be met. Mr. Russo turned the Board’s attention to the Nottingham Building Code and Zoning Ordinances Section III A.2. , noting that a site plan
review is required in the zoning ordinance. Chair Leib agreed, stating that the requirement for a site plan review had been fulfilled upon approval, regardless of the outcome.
Chair Leib asked if all questions had been answered. Attorney Soltani stated he would like to have a chance to speak. He complimented Chair Leib on his interpretation of the Zoning Board’s authority, adding that the Zoning Board is not an entity of general jurisdiction. He further stated that the complaint filed by Neighborhood Guardians talks about the authority of the Zoning Board of Adjustment but does not point to the ordinance that they allege was violated. Lastly, Attorney Soltani stated that in order to file an appeal you must be an aggrieved party and he believed that the party bringing forth this petition lacked identity since Mr. Russo, an abutter, no longer chaired the committee. Attorney Soltani asked the board to entertain a motion for lack of jurisdiction and to make a finding as to whether
the Neighborhood Guardians have established, by a preponderance of the evidence, that they are aggrieved. Mr. Howard stated that he felt if the board decided they had no jurisdiction in this case, it would not serve anyone to go further to establish standing. Attorney Soltani stated that the decision was up to the Board, however, he was making that request on behalf of his client. Mr. Russo stated that he believed all citizen’s of Nottingham are aggrieved when Town Officials do not follow the rules and regulations. Attorney Soltani disagreed, stating that there must be some adverse impact beyond what is experienced by the ordinary citizen. Chair Leib asked if Mr. Hadley wanted to respond. Mr. Hadley referred back to NH RSA 676:5 III. He added that beyond the RSA, he believes this project has negative regional impact, noting that testing lowered several wells that were over 3000’ away and primary wetlands in Barrington dewatered
up to two feet. Chair Leib stated that whether or not the Neighborhood Guardians had standing would take research and the first question they needed to address tonight was whether the Board had jurisdiction over the case.
Mr. Howard made a motion to dismiss the application of Neighborhood Guardians based on the assertion that the complaint does not fall within the jurisdictional powers of the Zoning Board of Adjustment. Mr. Morin seconded the motion. Chair Leib, Mr. Morin, and Mr. Howard voted in favor of the motion. Mr. Russo voted against the motion. Mr. Bassett abstained. Motion passed 3-1-1.
Chair Leib informed Mr. Hadley that the next step would be to file an appeal. Mr. Hadley asked if they needed to wait for the written decision. Chair Leib replied that he believed if the written decision was not written within six (6) days, then the time frame for filing an appeal would begin when the written notice was written. Attorney Teague concurred. Ms. Chauvey stated that she was unaware of that, having thought it was a 10 day time frame. Attorney Teague stated that the RSA was not drafted that way. He further added that best practice is to count 30 days from the day of the vote.
Mr. Russo stated that he felt the zoning ordinances have a glaring hole if they do not cover conditions set in subdivision and site plan approval. Mr. Bassett agreed. Mr. Morin stated he thought the Neighborhood Guardians would need to petition the Planning Board and if the Planning Board felt their conditions were not being followed they would have authority over how to handle it. He felt that the Planning Board would then turn to the Selectmen for enforcement.
At Ken Graham’s (?) inquiry, Mr. Bassett stated that he abstained from the vote because he was unclear of the authority given to the Zoning Board in RSA 676:5.
OTHER BUSINESS:
Applications:
Chair Leib stated he believed the applications were ready for use. Ms. Chauvey asked members of the Board to review the instruction page. She asked how the Board felt about having the applicant’s supply 3 sets of mailing labels along with their list of abutters. Mr. Morin thought it was a good idea. Mr. Bassett felt it made sense. Mr. Russo felt that the technological challenge may be too much to expect from some applicants. Mr. Morin stated that they could be hand-written. Chair Leib stated he felt the label requirement should be added to the application.
Members agreed that the new application was ready for use.
Fees:
Chair Leib made a motion to have Ms. Chauvey send a memo to the Board of Selectmen requesting the advertising fee to be raised to $75 from the current rate of $60. Chair Leib, Mr. Russo, and Mr. Morin voted in favor of the motion. Mr. Howard and Mr. Bassett voted against the motion. Motion passed 3-2.
Mr. Morin made a motion to adjourn the meeting. Chair Leib seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at 8:40 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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