October 10, 2013 Minutes

ZONING BOARD OF ADJUSTMENT
TOWN HALL, 85 MAIN STREET
PITTSFIELD, NH 03263
MINUTES OF PUBLIC HEARING

DATE: THURSDAY, OCTOBER 10, 2013

RECESS: Following Roll Call, the Zoning Board will recess the regular meeting and engage in an attorney client meeting. The regular meeting will follow the attorney client meeting.

Carole Dodge, Chairman, Zoning Board of Adjustment after conferring with Board decided the attorney client meeting would be in public session. Meeting will be opened at regular scheduled time of 7:00 P.M.

DISCUSSION:

Attorney Barton Mayer was present.

(CD) This is an informal, informative attorney client meeting. Board discussed and decided to hold meeting in open forum rather than in a “non-public” type setting.

(CD) had several questions pertaining to the Administrative Appeal that was before the Board. “Is it in our practice to hear Administrative Appeal filed by the Building Department? Were we ever in a position to hear this Administrative Appeal?” Atty. Mayer: I think I would hear this. The Superior Court declares law. He noted that the Zoning Board though specifically not given the authority to hear these types of Administrative Appeal is the Board that would be assigned Building Codes Administrative Appeals and should probably hear this appeal.

Jim Pritchard explained that it was a Warrant Article at Town Meeting and it was not approved. He noted that the Statutes do not give the Zoning Board that “power.” (CD) I read that you have to have one member on Building Codes Board of Appeals, that has to be an expert. Atty.Mayer: This is not a building codes court of appeals. You can interpret the Statues different ways. (CD) I have some reservations whether this should this be on the ballot as it is a rarity that this Board hears these types of appeal and it is difficult to find people willing to donate their time. Atty. Mayer: It is better to try and solve an issue before it goes to Superior Court. Probably only a handful of appeals regarding Building Codes are ever heard and 90% of municipalities have the Zoning Boards do the job so this probably should stay with Zoning. Sometimes a Board will request to have an “expert” come in to assist them in deciphering what is going on. There really is no provision for these appeals to go to the Board of Selectmen. The normal course would be for them to come through the administrative office, processed and the Zoning Board is called upon to determine the correct interpretation.

Since various individuals were trying to comment..

(LK) Point of Order: Public Input is No. 7 during the regular meeting. We have quite a few questions which we would like to address, so I think we should move on.

Jim Pritchard: The Statute determines who shall be designated to hear Building Code appeals. Atty. Mayer: There are different definitions on that. Honestly, Mr. Pritchard has an interpretation and the Court can interpret it differently. Board can handle the job as you can.

(CD): The biggest job would be to put in a Warrant Article at next Town Meeting to particularly define this. According to LGC, it is “by default” that we would hear this.

(CD): My second question pertains to filing. Any Zoning application goes through the office, is dated and processed accordingly. We have never heard a case that does not have a “date stamp.” My concern is that there is no paperwork date stamped; there is no paper trail on this. You cannot electronically file with the Court; you physically have to go in to file and have it date stamped. To allow ourselves to follow this process, I fear we are setting a precedent. It is a hang-up for me because paperwork never got filed. Atty. Mayer: You can probably proceed anyway. Three Board members voted to re-hear it and because Board heard it, accepted and acted upon it, it can go forward. If Board had determined that it was not a proper filing, then it would probably relate to the Cardinal Development determination.

(PS): I sent a copy of the Board of Selectmen’s Motion to Carole and I did not hear from her. (CD): The first E-Mail I received included no attachments and no reasoning behind the E-Mail. It was noted that ZBA did not know what they were doing.

Atty. Mayer: I would have to see the Motion because you have to have grounds. (Atty. Mayer was provided a copy of the Board of Selectmen’s Motion.) The procedure for filing is not interpreted that it needs to come through the Town Hall office. (CD): I did not get the attachment until August 22nd. Atty. Mayer: The Town Administrator should be receiving it and sending it out. (CD): The Town Administrator does not receive any of our filings. Our Rules of Procedure should be changed. Paul Skowron: I sent Carole Dodge an E-Mail on August 7th noting attachments. Atty. Mayer: I am comfortable that the Town Administrator submitted this re-consideration of appeal request in sufficient time for the ZBA to move forward with the appeal.

Jesse Pacheco, Building Inspector: My point is that there needs to be someone in the office who is there full-time. Both Dee and I both hold part-time positions. Atty. Mayer: I would not get too restrictive as to who receives an application. A memo can be filed as to how Board requests applications be filed.

(CD): My third question pertains to procedure for calling meetings. I was under the impression that only the Chairman could call a meeting and in emergency situations then the Vice-Chair. Atty. Mayer: The Vice-Chair can call a meeting in the absence of the Chair. The standard is that the Chair calls the meeting – I am not willing to note that only the Chair can call a meeting. (CD): Should we not hear this case because Chair did not call the meeting? Atty. Mayer: No.

(PS): I am the Vice-Chair and I was led to believe that Carole was not available, out of State as a matter of fact, and the Rules of Procedure note that the Vice-Chair has the full powers in the absence of the Chair. Atty. Mayer: There is no problem with the Vice-Chair calling the meeting. The meeting was held, the Board accepted the appeal and acted upon it.

(CD): Regarding E-Mails, she explained what she understood using E-Mails to all members of the Board implies. Atty. Mayer: Be sure that you do not discuss the merits of the case through E-Mails. I do not like to have any of the Boards responding to the merits of a case. But, as it happens, you can still go forward. All Board members cannot via E-Mail discuss the merits of the case before the meeting.

(CD) thanked Atty. Mayer for appearing for meeting and addressing some of their concerns.

Break: 6:52 P.M. Resume at 7:04 P.M.

___________________________________________________________

ZONING BOARD OF ADJUSTMENT MEETING OCTOBER 10, 2013

ITEM 1. Call to Order at 7:04 P.M. by Carole Dodge, Chairman

ITEM 2. Roll Call

Members Present:

Carole Dodge (CD), Chairman, Paul Sherwood (PS), Vice-Chairman, Paul Metcalf, Sr. (PM),John (Pat) Heffernan (PH), Larry Konopka, (LK), Christopher Smith (CS), Alternate and Delores Fritz, Recording Secretary.

Members Absent:

None.

Larry Konopka (LK) recused himself from meeting and was seated in the audience.

Chair noted that Christopher Smith (CS), Alternate would be seated on the Board.

ITEM 3. Approval of Minutes of September 26, 2013

(PS) Motion to approve Minutes of September 26, 2013. (PM) Second. Carried 5-0.

ITEM 4. Public Hearing to re-consider an application for
Appeal of Administrative Decision filed by Paul H. Rogers,
(Jitters Café), P.O. Box 34, Pittsfield, NH 03263 for
property located at 44 Main Street, Pittsfield, NH 03263
(Tax Map U03, Lot 86) due to a Code Enforcement
Violation for property sign violation of the International
Codes 2009, Chapter 32 Section 3202.3.1 and 3202.3.2.
The property is owned by Moo-Veez Galore, LLC, Paul
Rogers, P.O. Box 34, Pittsfield, NH 03263.

(CD) Motion to open application for discussion. (PS) Second. Carried 4-1 (CD).

(CD) An E-Mail was sent to the Zoning Board with no attachments.
(PS) read into the Minutes the Motion as noted from the Board of Selectmen dated August 7th. (See attached.)

(PH) That sign has been there longer than I have been in Town.

John Vanacore, Attorney: I represent Mr. Rogers and I believe there is no statutory authority granted this Board to hear these issues according to RSA 677:2 and RSA 677:3. I would like to hear from Board on this matter. Also, the failure to post correctly with the receipt of the E-Mail, this cannot be heard as the thirty-day appeal period has expired.

(PS) The BOS made the motion on August 6th which is within the thirty day appeal period. The Town Administrator had the Motion on August 7th, also within thirty day appeal period. A meeting was posted and held before the thirty days was up and this meeting falls within the parameters of time.

(PH) I am still hung up on the thirty day appeal period. (CD) The E-Mail process does not follow our standard practice of filing, and it was not date stamped, nor received in the office and recorded properly. In my opinion, the chain of command was lost. (PH) I will go along with that. (CD) We would be allowing a precedent to happen. I am not condemning anyone but this fell through the cracks and was swallowed. (PM) I agree with you both. (PS) Did we just waste our time? (CD) No, we did not. We are trying to understand our procedures. We have never dealt with this type of administrative appeal in our history. It was like a domino effect and I am not comfortable with it. I am not placing blame and I am not saying that there are not some valid points, but it was not date stamped and standard procedures were not followed. (PH) We need to fix the matter.

(PS) Point of Order: We need to talk about the matter in front of us. (CD) This is a five member board and we all have different opinions. (PS) The original request was an appeal of the Code Enforcement Officer. The sign did not meet building codes. (CD) At that meeting, things were given to us by appeal applicant and we followed our judgment call.

Jesse Pacheco, Building Inspector: At that meeting, I distributed a copy of the Building Code pertaining to signs and asked Board to table this matter but you made a decision to basically change the codes and you cannot do that. It isn’t something I invented; I cannot set precedent. You did not want to table it. You heard you cannot waiver it. Next, Paul can take it to the State. (CD) The attorney did not say that; he discussed procedural law and would not give us any direction. Procedure needs to be fixed. (PS) The Building Codes are specific. The State Building Codes as far as signs notes that it needs to be a certain number of feet high and not stick out into the roadway and he has not met these requirements. I am for granting appeal.

(CD) That is fine but I am stuck on the 30 day appeal process. (PS) The BOS had till August 10th to file the appeal; I talked to the Town Administrator about it. (CD) That is your interpretation and you have a right to that.

(CD) I am still hung up on RSA 674 which spells out that Town is to follow IBC which cannot be overturned no matter how strict the law is. I do not agree. There is a question concerning the dates but that is a judgment call. We are setting precedent. It goes back to the beginning and it is not the right thing to do. (CD) I understand that, but my personal opinion is that requests like this should come from the Building Inspector or the office. Regular practice was not followed and I have a problem with that and am stuck.

(PH) The bottom line is do we reconsider – yes or no?

(PH) Motion to not reconsider the Administrative Appeal for Paul Rogers. (PM) Second. Carried 3-2 (CS) and (PS). Motion passes.

Recess: 7:27 P.M. Resume 7:32 P.M.

ITEM 5. Members Concerns

(PH) We need to get a Memo out so that this does not happen again. (CD) and Dee will work on it. (CD) noted it might be beneficial to have a joint meeting with Planning Board on this.

(PS) Are we going to appoint the Alternate as a new board member?
(CD) We will follow procedures on this. (PS) All members and alternate have a right to discuss matters, but alternate does not have right to vote unless seated specifically on Board. This would be an extra voice in matters.

ITEM 6. Public Input

Jim Pritchard: I listened to this meeting and heard about upholding the law. It depends on what side of the issue you consider. Board must uphold procedures and you must determine if Town Meeting ever gave this Board the authority to hear these types of appeals. I gave the Zoning Board “volumes of case law” and there was no discussion of this. In 1975 at Town Meeting it was decided to have a Building Inspector and not have a local appeals board. In 1998 Town Meeting repeals all Building Codes and did not appeal local appeal Board. You want to have another Warrant Article about this – how often do you want to bring this at Town Meeting. YOU DO NOT HAVE THE AUTHORITY TO HEAR THESE TYPES OF APPEAL.

Jesse Pacheco, Building Inspector: I feel basically the way Jim feels. You guys made a decision before you came here. My job can be a thankless job but I have to follow the State Building Codes. Not once did you say bring in the Building Inspector to discuss this but you ignored what I had to say. I am a taxpayer and if something happens, it will reflect in my taxes.

I was on the Zoning Board and I have seen what has been done in the past and things did not look so good and I thought maybe as Building Inspector I could make some changes; but you follow the “good ole boys” rules but these boards need to be brought up-to-date. This is not helping our cause. I have heard some “nasty” things about the Building Department but I am trying to make things right. If Board just does what they want then why have them. This Board set a precedent tonight and did a terrible job tonight.

Jim Pritchard: Board acted as Building Codes Court of Appeal and set a precedent. You are doing the same thing wrong again and again. What I am saying is that you were not granted authority to do this. It concerns me that this Board has acted as judge and jury with no authority to do so.

Larry Konopka: I wanted to clarify an issue that Jim Pritchard brought to my attention and that is that there are two Planning Board members on this Zoning Board and I did not know that when we tried filling the position. No one was interested in being on the Board and it was my oversight. Thank you Jim for bringing this to my attention.

ITEM 7. Adjournment

(PS) Motion to adjourn. (PH) Second. Carried 5-0.

Meeting adjourned at 7:50 P.M.

Approved: November 14, 2013

____________________________ ________________________
Paul Sherwood, Vice-Chairman Date

I hereby certify that these Minutes were recorded by me on October 10, 2013, transcribed and public posted on
October 17, 2013.

___________________________________________
Delores A. Fritz, Recording Secretary

/daf
Attachment
Olympus: 159.04