September 26, 2013 Minutes


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									<h1 class="entry-title">September 26, 2013 Minutes</h1>
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					<p>			ZONING BOARD OF ADJUSTMENT<br />
			TOWN HALL, 85 MAIN STREET<br />
			PITTSFIELD, NH  03263<br />
			MINUTES OF PUBLIC HEARING</p>
<p> DATE:  THURSDAY, September 26, 2013</p>
<p> ITEM 1.	Call to Order at 7:02 P.M. by Carole Dodge, Chairman</p>
<p>ITEM 2.	Roll Call</p>
<p>Members Present: </p>
<p>Carole Dodge (CD), Chairman, Paul Sherwood (PS), Vice-Chairman, Paul Metcalf, Sr. (PM),John (Pat) Heffernan (PH), Romeo Dubreuil (RD), Christopher Smith (CS), alternate and Delores Fritz, Recording Secretary. </p>
<p>Members Absent:</p>
<p>None.</p>
<p>ITEM 3.	Approval of Minutes of September 4, 2013</p>
<p>(PS) requested Christopher Smith, Alternate be seated on the Board since he was present for this meeting.  He requested that a member of the Board recuse himself so that (CS) could be seated.</p>
<p>(RD)  Motion to approve Minutes of September 4, 2013.  (CS) Second.  Carried 3-0 (PS), (RD), (CS).  Abstain:  (CD), (PM), (PH).</p>
<p>Approval of Minutes of September 12, 2013</p>
<p>(CD) noted that she had quite a few additions to the Minutes and requested Recording Secretary review tape to assure they were correct since (PS) objected to several of them.</p>
<p>(PS)  Motion to table approval of Minutes of September 24, 2013 to the next meeting.  (RD)  Second.  Carried 5-0.</p>
<p>	Letter from EDC </p>
<p>(CD) reviewed letter from EDC inviting Board members to attend a Joint Board/Committee Forum on October 12, 2013 at 11:00 A.M. at the Pittsfield Senior Center pertaining to responsible growth in Pittsfield.  (Each member of the Board had an opportunity to read letter.)</p>
<p>ITEM 4.	Work Session<br />
a.	 Discussion Paul Rogers Administrative Appeal</p>
<p>(CD)  There were some questions raised about the legality of the request for a rehearing on Paul Rogers Administrative Appeal and Jim Pritchard at the last meeting at Board’s request put together some interesting points and questions for review.  (<a href="https://mypittsfield.com/government/zoningboard/pdf/september_26_2013_attachment_to_minutes.pdf">See Attached</a>.) We can go through them and if there are any questions, Jim Pritchard can expand on them.</p>
<p>(PS)  I would like to say that I believe it falls under Article 1 – Purpose and Authority of the Zoning Ordinances which he read into the Minutes.  (<a href="https://mypittsfield.com/government/zoningboard/pdf/september_26_2013_attachment_to_minutes.pdf">See Attached</a>.)  At the Town Meeting, the citizens related that RSAs 672-677 authority to meet as Board of Appeals involved in those RSA’s.  (RD) noted that RSA 673:4 speaks directly to that.  (PH)  This covers both Boards?  (PS)  It is part of the Zoning Ordinances.  (PH)  So the answer to No. 1 is that at the Town Meeting they granted Zoning Board that ability.</p>
<p>(CD) read Question No. 3 into the Minutes.  She related that she had recently read about a case that was thrown out because of a fax submittal on deadline date which was not received by office personnel, date and time stamped and therefore was not officially submitted.  The Rules of Procedure need to be followed for filing.</p>
<p>(PS)  You received a request to do something within a given period of time   and aren’t we obligated to inform them to file the proper paperwork.  (CD)  I did not received a specific request but purely information on my E-Mail.  (PS)  You did get the E-Mail on your phone.  (CD)  I did not get the attachments on my phone.  The Board of Selectmen met the night before and voted unanimously that they wanted Zoning to re-hear Paul Rogers Administrative Appeal because Zoning Board “did not understand what they were doing.”  (PS)  So you got the request for a rehearing?  (CD) No, I did not get the attachments and this was only sent to the Zoning Board Chair and no other members.  (PS) noted that he would have followed up on this and try to advise the applicant accordingly.  Board further discussed the time sequence and when and how the thirty day appeal process would engage.  (CD) reiterated that it was the Board of Selectmen who hears appeals and the Town Administrator files their paperwork, who should know the procedures better than the rest of us.  The paperwork says it has to be a “formal” document and I have yet to see a formal document in front of me for re-hearing.  Let us try to figure out whether the document was in place and treat this like we would any other citizen.  The problem is that proper procedure was not followed.</p>
<p>(RD)  The reason that this came forward was that the original decision in and of itself was illegal, otherwise we would not be sitting here.  Let us move on, review all of this, and ask Chairman to clean this up and move forward.</p>
<p>(CD)  Why are we here tonight?    We are all part of the Zoning Board and personally I feel I have not played favoritism but have treated everyone equally to the best of my ability.  A mistake was made and we need to clean it up.  It should also be noted that the Warrant Article relates to the BOCA National Building Codes but Town did not adopt anything else.</p>
<p>Jim Pritchard:  I have been listening to this discussion and you originally asked for my help on this.  Article I gives you the authority under BOCA National Building Codes and I do not see any other building codes noted.  There would have to be a building code amendment and explained that in order to endow this power a new article would have to be adopted.</p>
<p>(RD)  The International Building Codes have been adopted by the State and all municipalities must adhere to them.  Jim Pritchard:  Ideally, there should be a separate Building Code of Appeals Board but you would have to have a Building Codes expert on this board.</p>
<p>(RD)  Motion to allow Town Attorney to come in and help us clarify this.  Motion dies because of lack of Second.  (RD) I see no resolution to this issue.  (PH)  I would like an answer to all this but do not want to have the Town spend the money for an attorney.  (CD)  We had discussed previously about sending this to LGC.  (RD)  Has anyone contacted them?  (CD)  No.  (PH)  The question we should be asking is whether we have the authority to do this?  I would like to hear what they have to say.</p>
<p>(PS)  In the meantime, we have a re-hearing scheduled on October 10th.  (PH)  How can we have it if we do not know what we are talking about?  (CD)  I think we should go through LGC and not bias the Town attorney in case anything comes forward on this.</p>
<p>Dan Schroth:  Is it all over a sign?</p>
<p>(PH)  Motion to send information to LGC for answer to questions.  Motion dies because of lack of Second.</p>
<p>(CD)  We can do it prior to our meeting on October 10th before the actual re-hearing.  All the abutters have been notified and the meeting has been scheduled.  When the Board is satisfied, the appeal can be filed and then it will go before the Board.  We have done other appeals but not building codes appeals.</p>
<p>Paul Skowron:  This Board needs to make a decision as the Board of Selectmen is requesting they re-hear the Paul Rogers Administrative Appeal.  There has never been a form for this type of appeal.  The BOS made a decision that the Town was incorrect in interpreting the application.  The party affected was the Town and the Town is the one that has to stand and make the appeal.  That is exactly what the Board of Selectmen has done.  A resident cannot make an appeal of a decision of the ZBA, only the Town can.</p>
<p>(CD)  Any abutter has the right to request a hearing on an appeal if they do not agree.  Paul Skowron:  The Zoning Board has to follow the Rules of Procedure as long as they do not violate the Statutes.  How you want to interpret this and what I believe are not in concert.</p>
<p>Jim Pritchard:  As you know, I have been involved in a lot of appeals.  It is noted in one of the case laws that “Ignorance of the law is not an excuse.”  If the Town does not assist someone with this then that is too bad for the applicant.  The question that needs to be asked is Carole Dodge the record custodian and if she is not, then this was not filed.  (CD)  I have never been the record custodian.  Jim Pritchard:  Then it was never filed.  (PS)  Ultimately, the Town Administrator is the record custodian and oversees the Building Department.  Paul Skowron:  Who does the Zoning Board believe is the record custodian?  (CD)  Actually, the Building Inspector is the record custodian as far as I know and then it is filed with Dee.  Paul Skowron:  The Board sent a copy the day it was motioned for re-hearing.</p>
<p>Jim Pritchard:  The issue is was it delivered to the record custodian?  Paul Skowron:  When I set up the hearing, I assumed it was filed.  Board can get a legal opinion and not spend any money by sending to LGC.  LGC can answer the question but you need to pose the question(s).  Jim Pritchard:  LGC does not know if we have been given the authority to do this.  My opinion is that they have not done this.</p>
<p>(PS)  Article I of the Zoning Ordinances is giving us this authority.  (CD)  Jim Pritchard notes that in 1998 the Town adopted BOCA but the Town has not adopted IBC – the State yes but not the Town.</p>
<p>(RD)  IBC is State-wide and all municipalities have to work with them.  (CD)  When the Town adopted BOCA, this overruled all other building codes we did.  For Zoning purposes, if the Town did not adopt IBC then we are still stuck in BOCA.  (RD)  As a professional builder, my interpretation is that the ZBA does have the authority to deal with this.  (PS) reiterated once again that Article 1 gives us this authority.</p>
<p>Jim Pritchard:  There is nothing in the IBC noting if a municipality does not adopt the Building Code of Appeals there is none. (He read from Zoning Ordinance, Article 5, <a href="https://mypittsfield.com/government/zoningboard/pdf/september_26_2013_attachment_to_minutes.pdf">see attached</a>.) Zoning Ordinance is not a building code.</p>
<p>(RD)  Does this Board recognize the Residential International Building Codes as the codes that should be followed?  (PH)  I have my doubts that we are following them 100%.  Jim Pritchard:  The question is not whether we are following the codes but rather is whether this Board has the appeal authority.  (RD)  Carole, do you feel we should recognize the Residential International Building Codes as the codes that we should be following?  (RD)  While (CD) was thinking of her response: (RD) If you cannot answer, then I resign from this Board as of this moment.  (RD) left meeting at 8:20 P.M.</p>
<p>(CS) is seated on the Board.</p>
<p>(CS)  I was here on September 4th and setting protocol aside, we are going down a path that the Board is not authorized to hear this which nullifies the original Notice of Decision, so isn’t follow-up a moot point.  We seem to be hung up on whether we follow the State and the International Building Codes.</p>
<p>Jim Pritchard:  Paul Rogers should have his appeal heard by Superior Court and they get to decide if he is following the codes.  (CD)  The BOS is the one to hear it or it goes to the Court.  (PS)  Chris is now a voting member.  (CD)  Romeo has excused himself but we will need a letter of resignation.</p>
<p>(PS)  Motion that Zoning Board accepts appeal and rehears the appeal acting that we have that ability.  Motion dies because of lack of Second.</p>
<p>(CS)  Unfortunately, I agree that we should follow the International Building Codes.  Jim Pritchard:  He read into Minutes excerpt from Gordon v. Town of Rye.  He related that you have to defer to enabling authority.  Has this been raised at any time by anyone?  Paul Skowron:  What Jim Pritchard said goes to the heart of the issue:  Has the Zoning Board been granted the authority at Town Meeting to hear building codes appeals.  You should take the questions and send to Town Counsel and LGC.  Jim Pritchard:  I would strongly advise going to LGC; the Town Attorney reports to the Board of Selectmen.  (CD)  I would prefer to go to LGC; there would be no bias.</p>
<p>Jim Pritchard:  The ZBA has to figure this out within 30 days of motion and the question is whether that was fulfilled?</p>
<p>(CD)  Members of the Board are in agreement to send to LGC with request to reply expediently and before October 10th.  Jim Pritchard will provide Town Administrator with a copy of his letter and research for forwarding to LGC.</p>
<p>ITEM 5.	Members Concerns</p>
<p>(PS)  According to Rules of Procedure, the Chair is elected annually as is the Vice-Chair and shall “have the full powers and duties of the Chair on all matters which come before the Board during the absence of the Chair.”  The timeframe was that Chair was not in Town nor in the State and I had full authority to call a meeting.</p>
<p>Jim Pritchard:  Maybe, according to Statutes the meeting is called by Chair and Board and no one else.  The difficulty was that Carole was not available.  She was back on the second and would have had time to notice meeting.  This is a sticking point.  (PS)  It was not wrong for me to do it.  Statutes say Chair and board and Rules of Procedure says …..  (CD)  This is a question which can also be forwarded to LGC.  Anyone with other questions please let me know.  We can have all these questions answered.  (PS)  Yes, all these questions should be answered.  (CD) polled Board and all agreed.</p>
<p>(PH)  Romeo has resigned and Chris is in.  (CD)  Chris is the Alternate and it is up to the Board of Selectmen to accept resignation of Romeo.  We do need a letter of resignation.	</p>
<p>ITEM 6.	Public Input</p>
<p>Dan Schroth:  Jim Pritchard is right that what it boils down to is that it should be filed in a timely manner.</p>
<p>Jim Pritchard:  What the issue boils down to is whether Town adopted amendment to hear IBC appeals.  Did Zoning have jurisdiction?</p>
<p>Close Public Input	</p>
<p>ITEM 7.	Adjournment</p>
<p>(PH)  Motion to adjourn.  (PM)  Second.  Carried 5-0.</p>
<p>Meeting adjourned at 8:47 P.M.</p>
<p>Approved:  October 10, 2013</p>
<p>___________________________			____________________<br />
Carole Dodge, Chairman							Date</p>
<p>I hereby certify that these Minutes were recorded by me on September 26, 2013, transcribed and publicly posted on October 2, 2013.</p>
<p>__________________________________________<br />
Delores A. Fritz, Recording Secretary</p>
<p>Attachments</p>
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