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Board of Appeals

Minutes of June 6, 2011

Chair Hancock “Griff” Fenton called the meeting to order at 7:00 PM

Present were: Appeals Board members Hancock “Griff” Fenton, Jay Fowler, John Wuorinen, Merle Bragdon, Jon VanAmringe; Secretary Stu Marckoon, Planning Board members John Holt, James Gallagher, Michael Jordan, Donald Bamman, Chris Tadema-Wielandt, appellant's attorney Michael Ross. (Note: Appeals Board member James Crotteau was not available due to a family emergency).

Consideration of Minutes – May 10, 2011 – Mr. Bragdon moved to approve the minutes as written. Mr. Wuorinen 2nd . Vote in favor was 4-0.

Reconsideration request of decision of May 10, 2011 (Gott v. Planning Board).

Chairman Fenton read a request received via e-mail from Planning Board Chair John Holt as follows:

To the members of the Appeals Board:

As chair of the Planning Board, I am requesting that you reconsider the decisions you made with regard to the Gott vs. Planning Board appeal, namely,  

The Board of Appeals, by a 3-2 majority, remands to the Planning Board, Section J1 of the Site Plan Review Ordinance with instruction to break the tie vote, and impose such conditions that may satisfy compliance with this section.

Voting in Favor: Fenton, Fowler, Bragdon              

Voting in Opposition: Crotteau, Wuorinen

However, neither the taped recordings nor the written minutes of the deliberations of the Appeals Board indicate that the Appeals Board remanded the matter to the Planning Board with either the instruction to break the tie vote or to impose such conditions that may satisfy compliance with this standard.  In fact, the minutes show that the Appeals Board voted 5-0 that the Planning Board had interpreted the tie vote correctly!    Nor does the record of proceedings indicate that you voted to instruct the Planning Board to impose a condition.  The chairman simply noted that the Planning Board had imposed no condition.  I would request that the record be set straight in this regard and that the Appeals Board state with clarity its actual decision regarding Review Standard J1.  The Planning Board cannot comply with the instructions as they are currently written nor does it wish to appeal the matter in its present form to Superior Court; hence, my request for the Appeals Board to reconsider its decision with reference to Site Plan Review Standard J1. 

Also, the Appeals Board failed to act on the appellant's claim that the Planning Board misinterpreted the Comprehensive Plan, which is a separate issue from the matter of vagueness.  I would request that the Appeals Board act on that issue so the Planning Board would have some basis on which to respond, with either compliance or appeal.

Chairman Fenton said he believed that the Appeals Board upheld the matter that the tie vote did not pass, and therefore the denial was in order. Secretary Marckoon said the Appeals Board was unanimous that a tie vote was not a vote in favor and upheld the Planning Board interpretation. Chairman Fenton said he did not see a conflict – that the tie vote was upheld and the ruling was upheld. Planning Board chair Holt said the remanding to the Planning Board demanded that they break the tie. A brief discussion followed on what exactly the Appeals Board voted upon. Chairman Fenton read from the Findings and Conclusions. Mr. Holt said the instruction to break the tie vote was not in the recording or the minutes. Chairman Fenton agreed. Chairman Fenton said he wasn't sure where it came from – he thought it might be a suggestion for the future, not a motion and a vote. He said it could be corrected. Secretary Marckoon read from page 13 of the minutes and that he didn't understand the question. Mr. Holt said the instructions to break the tie vote were not part of the motion.

Chairman Fenton said he understands the Planning Board's predicament. Mr. Holt said the Appeals Board should instruct the Planning Board to find the appellant has complied. He said the vote was 3-2 that the Planning Board had erred and misinterpreted section J1 of the Site Plan Review Ordinance, and clarification is needed. A short discussion followed on what Section J1 said.

Chairman Fenton said there are two issues – one that the tie vote was upheld by the Appeals Board and that conditions could be imposed to preserve the natural beauty. Mr. Holt said the Planning Board has to be instructed to vote yes. Chairman Fenton said conserving natural beauty was the issue. He said the Appeals Board upheld that the tie vote means that it did not pass, but then they looked at the criterion and whether the appellant satisfied the requirement with the berm and the trees. He said the Planning Board is requesting that they be told the application meets the review criterion. A brief discussion followed on how to clarify the findings.

Chairman Fenton said Mr. Holt is asking what the instruction is to the Planning Board in regard to standard J1. Mr. Bragdon said he didn't think it was up to the Appeals Board to impose conditions – the Appeals Board found for the appellant. Chairman Fenton said Mr. Holt was looking for instruction on what the Planning Board is to do. Chairman Fenton said he's not sure the Planning Board has to do anything because it didn't pass anyway, but the issue is what the instruction to the Planning Board to be.

Mr. Holt suggested that the Appeals Board could tell the Planning Board that the Planning Board erred and they must approve J-1. Chairman Fenton said that's what the Appeals Board does. Mr. Fowler said after reading the town attorney's opinion, he understood that they reverted back and they couldn't consider because it met the requirements and they were not to consider it in the approval or disapproval. Mr. Holt said the decision was that the Planning Board erred and must approve it. Mr. Fowler said that what he thought they did. Mr. Holt said the findings said conditions were to be imposed. Chairman Fenton said he'd like to clear up any misunderstanding tonight.

Chairman Fenton moved to instruct the Planning Board that the appellant was correct in criterion J1 and the Planning Board had erred. Mr. Fowler 2nd . Vote in favor was 3-1 (Wuorinen opposed). Secretary Marckoon asked if this would clarify the findings and conclusions. Mr. Fenton said that was correct.

Item J16 – Chairman Fenton reviewed the Planning Board reconsideration request. He said the Comprehensive Plan was a 2-or-3 prong item. He said one was that the application failed because it didn't meet the conditions of the comprehensive plan. He said Mr. Bragdon suggested that it did meet the provisions of the comprehensive plan, and therefore the Planning Board erred and the instruction was that the comprehensive plan could not be used. Chairman Fenton said a separate issue was that there were options available of the possibility of the Planning Board to use their discretion that they have criteria that the use or not use under section J. He said another issue was that the comprehensive plan was vague or it wasn't stated by the Planning Board what part of the comprehensive plan they didn't meet. He said the Appeals Board voted that the appellant's application met the comprehensive plan. Mr. Holt said the Appeals Board did not vote that, only that the comprehensive plan was vague. He said Mr. Bragdon made that point. Secretary Marckoon said this was the issue the chair reconsidered.

Mr. Holt said the appellant argued vagueness and unconstitutionality issue and the Appeals Board agreed it was so vague that it should have been waived. He said vagueness was not in the authority of the Appeals Board – it's a Superior Court issue. He said the other issue is that gravel mining is permitted in the rural and agricultural zone was sufficient, therefore any gravel permit is authorized to be issued.

Mr. Ross said he stated that you can't have a requirement to comply with the comprehensive plan because the comprehensive plan is the document from which the ordinances are created. He said the other items under section “J” are what have to be met, and if they are, you can have a gravel pit. He said the comprehensive plan is not designed for that.

Mr. Fowler asked if Mr. Holt went to the town attorney after the appeals board meeting. Mr. Holt said he did not. Mr. Fowler read from the town attorney's letter to the appeals board which said item J-16 should not be a regulatory decision and the Appeals Board should not use it as a regulatory criteria. He asked if the town attorney had issued a different opinion afterward. He said you can't specifically meet something like that because the items are visionary, not regulatory.

Mr. Holt said it's not within the jurisdiction of the Appeals Board to rule on this. He said the citizens put the J-16 review criterion in the ordinance. He said the matter needs to go to Superior Court, and that's clearly stated in the Appeals Board manual. Mr. Fowler asked why the Appeals Board is here, if there are no standards. Mr. Holt said it's a standard that is there and you have to deal with it. He said Mr. Ross said gravel mining is permitted in the rural and agricultural zone and that is the reason it's in conformance.

Chairman Fenton asked what particular part of the comprehensive plan the application does not comply with. Mr. Holt said he wrote three pages of reasons that the application doesn't conform to the Comprehensive Plan. Chairman Fenton said he read a 3-page diatribe about people from out of town. Mr. Holt said there are 5-600 acres and the applicant wants to push six acres against three houses. Chairman Fenton said the part about pushing the pit up against 3 houses was where the application was denied by both the Planning and Appeals Board.

Mr. Holt said there is nothing specific in the Comprehensive Plan that a gravel pit isn't allowed. Chairman Fenton asked how it could be denied. An exchange followed between Mr. Holt and Chairman Fenton in regard to the application's conformance with the comprehensive plan.

Chairman Fenton said a legitimate standard such as encroaching on three houses he can agree with; but if something like the comprehensive plan, if you can't cite the section and verse, he didn't see how that could be denied. He said a standard needs to be quantified, and he can't see one in standard J16, and he thinks it's within the right of the Appeals Board to do that.

Mr. Holt said the Appeals Board did not put that in the document, only vagueness was mentioned. He said the decision should read that the Planning Board erred and that it's in compliance with J-16.

Mr. Holt used an example of attempting to open a gravel pit next to the school, saying the Planning Board would be obliged the grant the permit. He said the Planning Board has some authority to look at the larger picture on where something should be located in the community. He said considering there are several hundred acres of contiguous extraction, moving a pit right next to three houses doesn't seem to fit the residential nature of the community.

Chairman Fenton said the Appeals Board felt the same way in regard to the gravel ordinance. He said the difference of opinion is whether the correct criteria were used to deny. He said you can't take a shotgun approach and see if something sticks.

Mr. Holt asked how many gravel pits have been denied and answered zero. Mr. Fenton said the Planning Board just denied one, and the Appeals Board affirmed it. Mr. Holt said when the section on the gravel ordinance it taken to court and overturned, they are compelled to grant the permit. Chairman Fenton said it's best to use quantifiable measures. Mr. Holt said it's not the Appeals Board call to make. Chairman Fenton said if he were a gravel pit owner, he would like to have the courtesy of the town to tell what he needs or doesn't need. A brief exchange followed on the citation of the comprehensive plan.

Mr. Fowler asked how many acres are actually are being considered in the center of town. Mr. Holt said it's in the documents he sent – it's several hundred, over 400-acres of parcels. Chairman Fenton said that isn't pertinent to the issue. Mr. Ross asked whether it's more than 300-acres approved. A short discussion followed.

Mr. Holt said it was a matter of perspective that with so much gravel being taken out of town that they felt to take another six acres of storage right next to three houses doesn't fit with the vision of the community. He said there was no vote on the interpretation on the Comprehensive Plan.

Mr. Bragdon said that argument lost on a 2-3 vote and on reconsideration an argument was made that the Planning Board should have waived item J-16. Mr. Fowler read from the findings and conclusions. Chairman Fenton said the Appeals Board voted to find the project in compliance with the Comprehensive Plan. Mr. Holt asked on what basis the Planning Board is supposed to waive criterion J-16.

Chairman Fenton moved to find that the Planning Board erred in its' interpretation of Site Plan Review section J-16 and is ordered to find the application in compliance. Mr. Fowler 2nd . Vote in favor was 3-1 (Wuorinen opposed).

Secretary Marckoon said he would try to get the findings and conclusions altered tomorrow and e-mailed to all parties involved. He asked when the clock starts ticking on the final version of the decision. There was a discussion on how to finally approve the findings. The Appeals Board agreed to meet on Monday, June 13, 2011 at 7PM to approve the final version.

There being no further business, the meeting adjourned at 7:47 PM

Respectfully submitted,

Stu Marckoon, Secretary