NOTTINGHAM ZONING BOARD OF ADJUSTMENT
DECEMBER 19, 2006
PUBLIC SESSION
VOTING MEMBERS PRESENT: ABSENT:
Mr. Doug Leib, Chair Mr. Kevin Jordan
Mr. Jim Howard Mr. Kevin Bassett, Alternate
Mr. John Morin
Mr. Earle Rourke
Mr. Jim Crowell, Alternate
OTHERS PRESENT:
Jeff Salava, Abutter
Elizabeth Smith
Arman Hyatt, Attorney for Garrison Place
Diane Kirkwood
Charlene Anderson, Regional Impact Abutter
Peter Thompson, Barrington
Chris Mills
Andrew Turco
Steve Conclan, Barrington
Olivia Zink
Traci Chauvey, ZBA Secretary
The Chair called the meeting to order at 7:00 PM.
Mr. Leib explained that the Board is made up of five (5) members and a vote of three in the affirmative is required for approval. He stated that Mr. Crowell is an alternate member of the Zoning Board and is sitting in for Kevin Jordan. He also explained that Ms. Chauvey is the recording secretary and, as such, will be recording the meeting to assist with transcription of the minutes. He requested speakers to identify themselves and spell their name.
CASE 06-11 APPLICATION FROM NEIGHBORHOOD GUARDIANS C/O MIKE RUSSO, CHAIRMAN, FOR AN APPEAL TO AN ADMINISTRATIVE DECISION IN RELATION TO THE ISSUANCE OF BUILDING PERMIT #141-06 TO GARRISON PLACE REAL ESTATE INVESTMENT TRUST (A/K/A USA SPRINGS) FOR PROPERTY LOCATED AT 145 OLD TURNPIKE ROAD, NOTTINGHAM, NEW HAMPSHIRE, IDENTIFIED AS TAX MAP 3 LOT 10.
Mr. Leib informed those present that RSA 674:33 gives the Zoning Board power to hear and decide appeals if it is alleged that there is an error in any order, requirement, decision, or determination made by an administrative officer in the enforcement of the Zoning Ordinances. He also read RSA 676:5 – Appeal to Board of Adjustment, “Appeals to the Board of Adjustment concerning any matter within the Board’s powers as set forth in RSA 674:33 may be taken by any person aggrieved, or by any officer, department, or bureau of municipality affected by any decision of the administrative officer.” Mr. Leib stated that, in this case, the officer is the Building Inspector. He also stated that based on the above RSA’s, the application does not qualify, however, because Mr. Russo was
also listed and had signed the appeal, the Zoning Board was going to hold the hearing.
Mr. Leib stated that only testimony related to enforcement of the Zoning Ordinance and whether there was an error made in the issuance of the USA Springs building permit would be heard tonight. He noted for the record that the Zoning Ordinance, Section VII, on building permits specifies that the building inspector shall issue a permit if all the provisions of the ordinance are satisfied, one of which is having a State Driveway Permit. He clarified for those present that the question before the Board was whether or not the driveway permit was valid and therefore, whether or not the provisions of the zoning ordinance were met when the building permit was issued. He stated the Board had no power to act on the question of whether the Planning Board’s site requirement issues were met or on issues related to traffic
concerns.
Mr. Russo took the floor. He stated that it was his and Neighborhood Guardian’s contention that the driveway permit was not in full force and effect on November 22, when the building permit was issued. He stated that he thought Attorneys and Members of the Board recognize that when a permit is under appeal it is not in full force and effect. Mr. Leib asked Mr. Russo if he had any documentation from DOT stating this is policy. Mr. Russo stated he did and handed out documentation relating to the Neighborhood Guardians appeal of the driveway permit to the Hearing Examiner of Transportation. Mr. Russo reported that USA Springs requested an extension of their driveway permit on November 14, which was granted by the District 6 Office on November 17th. He stated that the building permit was
issued on November 22, however the Neighborhood Guardians were not issued an order of “No Standing” on their appeal until November 28. Mr. Russo stated that according to DOT and DRA 200 rules the order issued from DOT was to contain findings of fact or law, which it did not. Neighborhood Guardians have since filed a motion to clarify. He stated that this motion puts the clock for appeals on hold.
Mr. Leib inquired as to why the driveway permit was extended on November 17th if it was on hold from an appeal. Mr. Russo stated that the Governor has asked the Department of Justice to look into this issue. He stated the Neighborhood Guardians have written to both the Governor and the Commissioner of the Department of Transportation. Mr. Russo stated his group has some concerns regarding the classification of the driveway. He stated they have been given verbal confirmation that the driveway has been classified as a major entrance. He contends that the traffic study completed by DOT is missing approximately 14 components for a major entrance study. Mr. Leib explained that the Neighborhood Guardians would need to address those concerns with DOT. Mr. Russo reiterated that it is Neighborhood
Guardian’s contention that the driveway permit was not in full force and effect at the time the building permit was issued. Mr. Russo stated that they also have an issue with the building permit being issued within days of the extension, instead of waiting the 60 days allowed for commercial permits.
Mr. Leib clarified that the building permit was put on hold when the appeal was filed. Mr. Russo agreed, stating that it was Neighborhood Guardians hope that the building permit would remain on hold until the driveway issue is resolved. Mr. Leib stated he had spoken with the District 6 Engineer, Alan Garland, and was told that there is no policy whereby a permit is suspended if under appeal. To confirm this, he stated, he spoke to Caleb Dobbins, who also informed him that the permits are still valid even when under appeal. Mr. Leib informed Mr. Russo that he would need to supply the Board with documentation to the contrary to prove his case.
Mr. Leib asked if there were any abutters who wished to speak. Mr. Salava stated that he is an abutter but had no Information to contribute. He stated he came to see what the case was about. Ms. Elizabeth Smith asked Mr. Leib if he had anything in writing from DOT stating that driveway permits are not suspended when under appeal. Mr. Leib stated he did not. Mr. Russo suggested it would be prudent for the Board to follow up on getting it in writing. Mr. Leib explained that an e-mail had been sent to Mr. Dobbins and the Board was currently awaiting a response. Mr. Arman Hyatt, Attorney for Garrison Place Real Estate Investment Trust, stated that the issuance of the extension is, in fact, their opinion on the status of the driveway permit. Ms. Kirkwood suggested that the response from DOT be given
to the Town’s Attorney. Mr. Leib stated that if the Board denied the appeal tonight and Neighborhood Guardians could provide proof that a driveway permit is suspended when under appeal, then the Neighborhood Guardians would have grounds for a rehearing.
Mr. Leib asked if Board Members had any more questions. Mr. Morin and Mr. Crowell requested to review the letter from the State dated November 17. Mr. Russo stated that the last thing he wanted to note for the record was that in his conversations with DOT is that their rules are open for interpretation and that they were unsure how to proceed with this case. Attorney Hyatt responded that they have a very different understanding of where DOT stands on this issue. Mr. Thompson of Barrington stated for the record that Neighborhood Guardians did not receive notice of DOT’s determination for lack of standing until November 28. Attorney Hyatt responded that the letter received by his office was written on September 13, 2006 and copied to Mr. Russo, Mr. McCann, and Mr. Hadley. In response, Mr. Mills stated
that he had received a copy of the rules from the hearing officer which state, “All parties must be copied with written documentation,” and he has not received anything since July 25, 2006. Mr. Leib again stated that this is not an issue before the Zoning Board. Mr. Turco, a Town resident, stated that items such as this are usually handled by certified mail, which would be easy enough to track. Again, Mr. Leib stated that that needs to be taken up with DOT. Mr. Steve Conclan suggested the Board remove from it’s decision making any “anecdotal” conversations with DOT, since it has been clearly stated that those individuals are not entitled to make policy decisions. He stated he did not feel this type of information should be conveyed at a formal meeting.
Mr. Rourke asked Mr. Russo if he was still waiting for a notice from the DOT as to whether or not the permit was valid at the time the building permit was issued. Mr. Russo stated that was correct, the hearings examiner was on vacation until January 2, 2007. Mr. Leib was asked by a member of the audience, if there was any reason not to err on the side of caution. Mr. Leib responded that the Board had in its possession all the documentation needed to make a determination. He stated that unless someone could present the Board with evidence that the driveway permit was not valid, the Board had to vote based on the extension of the permit, which DOT approved during the appeal process. Ms. Olivia Zink stated there has been sloppy communication from DOT on this from the beginning and since USA Springs has renewed this
application twice without acting on it, she feels like communication has been dropped repeatedly and that the whole case needs to be reviewed. Mr. Leib again stated that the only evidence the ZBA has is the driveway permit extension which means the driveway permit is valid, making the issuance by the building inspector valid.
Mr. Rourke made a motion to deny Neighborhood Guardians application for an appeal to an administrative decision based on a letter dated November 17, 2006 from DOT extending the expiration date of the driveway permit. Mr. Morin seconded the motion. Mr. Rourke, Mr. Leib, and Mr. Morin voted in favor. Mr. Howard and Mr. Crowell voted against. Motion passed 3-2.
Mr. Leib informed Neighborhood Guardians that they had 30-days to present evidence that the driveway permit was invalid in order to have the case reheard.
OTHER BUSINESS:
Mr. Jordan made a motion to adjourn the meeting. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned 7:40 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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