September 12, 2013 Minutes

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

DATE: THURSDAY, SEPTEMBER 12, 2013

ITEM 1. Call to Order at 7:02 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), Romeo Dubreuil (RD), and Delores Fritz, Recording Secretary.

Members Absent:

Christopher Smith (CS), Alternate

AGENDA REVIEW

(CD) I have added to the Agenda after Item 5 a Discussion on August 27th and September 4th Minutes.

ITEM 3. Approval of Minutes of July 11, 2013

(RD) Motion to approve Minutes of July 11, 2013 with correction.
(PM) Second. Carried 4-0 (PS) Abstain.

Correction: Page 2, under Item 5, (RD) We cannot change……… add

(RD) According to RSA 155-A:2.X:

No state agency, authority, board or commission shall vary, modify, or waive the requirements of the state building code or state fire code, unless approved by the state building code review board pursuant to RSA 155-A relative to the state building code or the state fire marshal pursuant to RSA 153:8-a, I © for the state fire code.

ITEM 4. Public Hearing with respect to an application for a Variance
filed by John “Pat” Heffernan, 136 Shaw Road, Pittsfield, NH 03263, (P.O. Box 53, Concord, NH 03302) for properties located at 30 Watson Street, Pittsfield, NH 03263 (Tax Map U05, Lot 63) owned by John “Pat” Heffernan and 30 Watson Street, Pittsfield, NH 03263 (Tax Map U05,Lot 64-1) owned by Peter Pszonowsky, 34 Watson Street, Pittsfield, NH 03263 to allow conforming property to convert to non-conforming with a lot line adjustment. These properties are owned by John “Pat” Heffernan and Peter Pszonowsky and located in the SUBURBAN Zone.

Pat Heffernan recused himself and was seated in the audience.

Pat Heffernan was advised that the Board has only four members seated, though sufficient for a quorum, he is entitled to a full Board if he chooses. Mr. Heffernan and Mr. Pszonowsky both agreed that they would like to proceed.

(CD) This is noted for all applicants tonight.

(PM) Motion to open hearing for John “Pat” Heffernan. (PS) Second. Carried 4-0.

Pat Heffernan: I just wanted to move the lot line and square up the properties which involves about 130 feet. Both lots are almost conforming and this lot line adjustment will “shorten up” my property about 8 feet. He related that he is aware that you cannot have two buildings on one lot and that eventually the other structure will be torn down.

He read through the Criteria as noted in his application.

(PM) Is everyone in agreement with the lot line adjustment?
Pat Heffernan: Yes.

(PS) Are both properties within the setbacks? Pat Heffernan: The property lines have been there “forever.” (PS) The second building would have to come down – how soon could that be accomplished? Peter Pszonowsky related that this would not happen this year but probably in about a year. He explained his plan is taking down the current building himself and then building a garage. (PS) If the lot lines are moved and the “house” is left standing, this would not be a good thing. It was agreed that this would happen in approximately a year.

Pat Heffernan: This goes to the Planning Board next for a lot line adjustment and then the “house” would come down in about a year. I think that is reasonable. I understand that you would like it out of there.

(RD) Has a survey been done? Pat Heffernan: Actually two surveys have been done and I have the plans available with me. (RD) reviewed the plans with Mr. Heffernan.) (RD) You already have a Variance for a gun shop. Pat Heffernan: Yes. (RD) Is it a gun shop now? (PH) I am not yet doing what wanted to do. He explained his original plans and noted that he has “not done anything with it yet.” (RD) By readjusting the lot line, the building meets all setback regulations? Pat Heffernan: Yes.
Peter Pszonowsky: I will be taking that structure down and building a garage further back. Pat Heffernan: Just for your information, the building is uninhabitable.

Public Input:

Carole Grainger: I am an abutter and for many years I have wanted it to go away so this is a good solution.

Jim Pritchard: I heard some discussion pertaining to setbacks and whether there is or is not. The house will be taken down and cannot go on another part of the property. One piece of property is going from non-conforming to conforming and a conforming property is going to non-conforming.

(CD) The house coming down will be addressed by Planning Board.
Jim Pritchard: It is your decision not the Planning Board. It is a zoning restriction not a site plan matter.

Close Public Input

(PS) Motion to grant Variance for lot line adjustment for John “Pat” Heffernan (Tax Map U05, Lot 63) 30 Watson Street and Peter Pszonowsky, (Tax Map U05, Lot 63-1) 34 Watson Street, Pittsfield, NH 03261 with special condition noted that house located on U05, Lot 63 be demolished and removed within one year of the granting of this Variance and a Site Plan Review by the Planning Board. (RD) Second. Carried 4-0.

It is noted that the property was noted as Tax Map U05, Lot 63 should be denoted as Tax Map U05, Lot 63-1.

Applicants were advised of the 30 day appeal process.

Pat Heffernan returned and was seated on the Board.

ITEM 5. Public Hearing to consider an application for a Special Exception
filed by Maize and Blue, LLC, 1505 First NH Turnpike,
Northwood, NH 03261 to allow a dental office to relocate to
first floor within the residential property located at 50 Manchester
Street, Pittsfield, NH 03263 (Tax Map U01, Lot 95). The
residential component will be eliminated and property will be
retained as a Medical Center. The property is owned by Maize &
Blue, LLC and located in the URBAN Zone. John L. Arnold,
Esq. will represent the applicant.

John L. Arnold, Esq. and Rick Vega were present.

Atty. Arnold: Rick owns this property in the Urban Zone and has been a dentist for a number of years utilizing the building as a home occupation. He no longer resides in the building and it now requires a Special Exception to continue as a Medical Center eliminating the residential component.

Atty. Arnold: Part of the plan is to move the dental office to the main floor and add a dental chair.

Rick Vega: I have been practicing in Town, Allentown, and Northwood for about thirty years. I have a history of acquiring dental offices and keeping practices running. Bringing the practice downstairs is an efficiency move.

Atty. Arnold: What is going on is to eliminate the residential component, move the practice to the main floor, add a dental chair and all of this has been addressed in the Criteria in the application. This would benefit the Town by serving the residents of the Town. It was agreed by Board that applicant would not have review all the Criteria.

Pat Heffernan: What are you going to use the additional floor for – storage? Rick Vega: Yes. Pat Heffernan: No one would be living there? Rick Vega: No.

Public Input

I am Rose M. Culver and I represent Dr.Varney who is practicing at these offices. This will make it a nice place for people to come. She is already working at the practice. Some site work will need to be accomplished to make it more accessible.

Jesse Pacheco, Building Inspector: We have been working on this for a while. By moving upstairs, it will make it a better flow by pulling cars off the road. This will work out better.

(PS) Is the plan to pave a parking lot? Dr. Varney: Yes, that is the plan. There would be plenty of room for that.

Close Public Input

(PH) Motion to grant a Special Exception for Maize & Blue, LLC, to eliminate the residential component for property located at 50 Manchester Street, Pittsfield, NH 03263 (Tax Map U01, Lot 95) and retain property as a Medical Center. (PS) Second. Carried 4-0.

Applicant was advised of the 30 day appeal process. All parties left at
7:45 P.M.

ITEM 5 A (Added) Discussion on meetings of August 27th
and September 4th.

(PS) There was no meeting of August 27th. A meeting was scheduled but no members appeared.

(CD) There was a special meeting scheduled on September 4th regarding the Administrative Appeal – Paul Rogers. It should be noted that a special meeting cannot be called by anyone other than the Chair.

(PS) Point of Order: This discussion should not be done at this meeting. I am uncomfortable with this. It should be dealt with privately or with Board of Selectmen. I suggest that Chair not open up this line of discussion.

(RD) Can we discuss the July 11th meeting? (CD) Nothing needs to be addressed. (RD) The letter from the Town Attorney noting the decision is putting the Town into liability. It “flies” in the face of the Building Codes. No one can override that. Board ignored it and dismissed it. That, in and of itself, is unacceptable. (CD) Acceptable or unacceptable – there is a procedure that we have to follow. The Board of Selectmen passed this off to the Zoning Board because of bias. There needs to be a formal process followed within thirty (30) days.

(PS) You received the E-Mail of August 7th saying the BOS wanted ZBA to re-address this. (He read E-Mail from Paul Skowron into the Minutes.) It was sent to you on August 7th well within the 30 days’ timeframe. If it did not meet your standards, you should have noted that they fill out the correct paperwork. They did it in a timely manner. As soon as you got this, you should have proceeded.

(PS) Motion to adjourn. No Second. Motion dies.

Recess: 7:47 P. Resume at 7:59 P.M.

(PS) Madam Chairman: I apologize for my earlier outburst. (CD) I have no hard feelings. I am trying to do the best I can do and make ZBA aware of things out of order.

(PS) I called the meeting because you were out of Town and there were time constraints involved. I conferred with Paul Skowron and checked with Town Counsel and I was assured that what I was doing was proper. I did not call the meeting until I got this assurance. The first meeting did not happen. I discussed with Paul Skowron the next day and he requested I set up another meeting, at which (RD), (CS) and I were present. I was working on good faith and in the Town and ZBA interests. (CD) My issue is not with you. (PS) The meeting on September 4th was merely to reschedule the hearing. We had to meet within 30 days to decide if we would hear it. I did everything I could to get a full Board.

(RD) In my opinion, ZBA made numerous illegal decisions. What is your intent? I fully agree that there is no malice but rather a misunderstanding regarding the Board of Selectman and also some of the guidance from the Town Attorney. (PS) There is one other piece involved and that is the 30 day appeal process – July 11th to August 7th. An E-Mail was sent to Chair from Board of Selectman requesting an appeal.

(CD) noted that she had received the E-Mail but there were no attachments. The BOS thought we did not understand the issue. Board discussed with Chair the process followed, the reasons for requesting the ZBA hearing the matter, legal issues, E-mail communications involved, and the scheduling of meetings. (CD) noted that she was out of state from August 21st to September 2nd.

(CD) At the last meeting that was called on September 4th, I was going to make these points but got here a little late (6:45 P.M. – meeting scheduled for 6:30 P.M.) When I got here, the meeting was already over. The Board needs to be held to higher standards. We all need to know the rules and regulations and both BOS and Paul Skowron should know how to proceed on this.

(RD) I can hold true to the RSA’s and lots of time that has been discarded. I am asking what is the recommendation from the Board as to how to proceed at this point? (PH) I agree with Paul Rogers that he should have a sign. We have got to come to some agreement to satisfy all parties regarding the liability here. I had thought that Paul (Rogers) was going to rectify this. I would think that seeking legal counsel advice as to how to proceed would be appropriate. It was suggested that Board contact LGC but it would be better to contact Town counsel and get written details in response. (CD) We can ask specific questions. This is on the record now and we do need to figure out how to go forward. In my mind, procedure has not been followed.

*(RD) Motion to request Town counsel be requested to appear at meeting to resolve situation. (PH) Second. Carried 4-0. (*Motion was rescinded later in the meeting.)

Board agreed that September 26th would be a good date.

ITEM 6. Members Concerns

Jesse Pacheco, Building Inspector: As Building Inspector, I am the advisor to the ZBA. My point is that I do a Certificate of Compliance for everyone that needs to be before the Zoning Board and like to treat them all the same way. I had asked you to table this matter at the meeting in July. This Board is acting as a review board. You cannot change the law and you have got to go by the codes and they have been disregarded. That is what the codes are here for. These are not easy decisions and can be hard to decide. I try to follow the codes and ZBA should also.

(CD) The codes do not fit our Town. Jesse Pacheco: We have to go by the State codes. If we followed procedures, we would not be here right now. We need to try to make the boards better. (RD) The state voted in the building codes and we have to follow them.

ITEM 7. Public Input

Jim Pritchard: I am disappointed that this Board wants the Town Attorney to come in and tell them what to do. Without specific questions posed, it would be difficult. I have never seen the Zoning Board act as the Building Codes Appeal Board. Who has given this Board the authority to hear this? I have looked into it and the ZBA may never have been properly authorized to hear this. If the Town Attorney says yes, this Board should hear this; you need to ask him by what RSA authority. Carole had a good point whether the motion was filed or not and when it was sent is irrelevant. Was a motion for rehearing filed – I did not see any. Carol has an issue about anyone other than herself calling a meeting – this is something you can also address with the Town Attorney. You need to get legal citations to check if it applies.

I remember Bob Lincoln commenting that Town cannot follow Town Attorney blindly. We have to do homework and ask specific questions regarding delegating your authority. The Town Attorney is not the Board.

Eric Nilsson: Thank you to the Zoning Board for rehearing the appeal.

(RD) Jim Pritchard has some good points.

Jim Pritchard. I would like to point out that you should put together a list of questions and not necessarily go to the Town Attorney first but go to LGC. This is at no cost and you could do it point-by-point. It would be nice if the ZBA could figure out this “mess” by piecing it together themselves.

*(RD) I rescind my motion regarding having Town Attorney appear at meeting. (PH) Rescind Second. Carried 4-0.

(CD) I will note questions in writing and send it. Jim Pritchard: Submit a letter with some of the issues I addressed. This will save Town money and we do not need to spend this money. (PH) We could submit a list of questions to LGC. We can think about the questions and meet on September 26th. If this Board is not legally able to do this, that would solve the problem. Jim, could you help us with this? Jim Pritchard: Yes. The question is whether the Board had the authority to entertain this issue in the first place.

(PS) The question should be – did the Warrant Article also grant the Zoning Board to be the Building Codes Court of Appeals? The Board of Selectmen referred it to us believing we are the authority to act as Board of Appeals. The Board of Selectmen is the governing body. We did what we did.

Jim Pritchard: The RSA reads are by interpretation. He referenced RSA 673:1 V and RSA 673 IV noting that court of appeals should be authorized at Town Meeting. This should be your first question.

ITEM 8 Adjournment

(PS) Motion to adjourn. (PH) Second. Carried 4-0.

Meeting adjourned at 9:10 P.M.

Approved: November 21, 2013

________________________ _____________________
Carole Dodge, Chairman Date

I hereby certify that these Minutes were recorded by me on September 12, 2013, transcribed and publicly posted on September 18, 2013.

______________________________________
Delores A. Fritz, Recording Secretary