The Town of Harrisville Zoning Board of Adjustment held a public meeting on September 20, 2017 @ the Town Offices located at 705 Chesham Road.
Members present: Hal Grant, Chairman; Charles Sorenson, Vice-Chairman; Jonathan Miner, Selectman; Sue Brown; Jeffrey Trudelle
Members absent: Rex Baker, Alternate
Members of the public: Carrie Heath, Jay Jacobs, Selectman
Hal Grant opened the meeting at 7: 03 pm.
Board members Jon Miner and Charles Sorenson remained recused for the following matter:
Carrie and Allan Heath, 60 Breed Road (Map 40 Lot 112) – Appeal for Rehearing on Denial of Application for a Variance from Article VI, Section 1.3 of the Zoning Ordinance. Variance application pertained to 50’ setback from public right of way for a 10 x 25’ floating deck.
Hal Grant stated that the purpose of the meeting was for the ZBA to decide whether or not to grant the applicant a rehearing on the basis of the board’s decision to deny the variance at its August 16, 2017. The chairman noted that neither the public nor applicant was able to speak, except to respond to questions from the board. Subsequently, in the absence of a petition submitted by the applicant explaining why she believes there is a need for a rehearing, the board allowed the applicant to state her position verbally.
Carrie Heath proceeded to state that, in her opinion, the ZBA did not address the criteria properly nor fully understand the criteria being considered, resulting in an incomplete discussion of her application. She stated she felt the first two criteria were agreed upon but that Mr. Trudelle did not understand the third criteria, and that the board never got to the fourth. She also stated she felt the board never discussed the terms under the fifth.
[For purposes of clarification, the section of the Zoning Ordinance under discussion, and which formed the basis for the ZBA’s denial at its August meeting, was Article 20.1.4, including 126.96.36.199 through 188.8.131.52. See ZBA Meeting Minutes of August 16, 2017 for the detailed discussion of each article. In addition, Mr. Sorenson pointed out that the article numbers in the Harrisville Zoning Ordinance varied from the NH RSA numbers, but that all articles were included and addressed in the original August 16, 2017 hearing as well as in this September 20, 2017 meeting.]
Mr. Trudelle restated his position on why he voted the way he had, and that he believed the substantial justice factor was irrelevant given the Heaths had applied for approval after already building the deck without a permit. Discussion proceeded on the meaning of the language in 184.108.40.206 relating to the substantial justice clause. Mr. Sorenson stated that, as he had explained at the August meeting, the substantial justice factor requires measuring the harm to the public for the deck remaining against the harm to the property owner in not getting the variance and having to remove the deck. Mr. Sorenson added that a building permit, or lack of a building permit, does not come into it and that what does is the impact on the Heaths and the impact on the public if the deck stays. Mr. Trudelle and Mr. Sorenson proceeded to discuss the language and its meaning, with Mr. Trudelle reiterating his position that, in his understanding, the article addresses situations in which construction hasn’t already taken place and is before the fact of the deck’s existence and therefore the justice factor is irrelevant in this case. Mr. Sorenson continued to disagree, stating he had never seen that application in any case law and that subsection three relates solely to the effect of the deck on the public and the effect of tearing it down on the Heaths.
Discussion moved to the purposes of the ordinance, the spirit of the ordinance and the intent behind the regulations, in this case the setback requirements in the residential/agricultural zone. Sue Brown asked about the purpose of the regulations and why they exist if they are not enforced, and Mr. Sorenson responded that the goal is to balance the public interest against the property owner’s and to understand what the ZBA attempts to accomplish. Argument over the substantial justice language continued with Mr. Trudelle and Mr. Sorenson maintaining their earlier-stated positions regarding the relevance of the Heath’s lack of prior approval for the variance in consideration of the criterion.
The board returned to the question of whether or not a rehearing should be granted to the Heaths based on whether or not they had properly and thoroughly reviewed the criteria in deciding to deny the variance. Mr. Sorenson explained that, if a rehearing is denied and the applicant were to pursue relief in Superior Court, which the applicant would have 30 days to do, the Court would consider whether or not the law was properly applied by the ZBA and whether or not the decision- making process was flawed in some way.
Mr. Grant then asked Ms. Heath if she believed the final two criteria were addressed. The applicant responded that she wasn’t sure they had been given the board’s decision on the third. The board generally agreed they had given proper weight to the 50 foot setback requirement as a factor in maintaining the spirit of the ordinance. Mr. Grant also stated the board had considered the applicant’s property and whether or not it met the unnecessary hardship criterion, and that the board felt it did not and that the deck could be positioned elsewhere on the 3-acre lot. The board agreed. When the applicant stated she did not feel that issue had been discussed in August, the Chairman responded that the board had, and he referred to the August meeting minutes. The applicant restated she felt this was unfair and that there was no other place the deck could be located. The board stated it was bound by the regulations.
Mr. Sorenson stated that the board, while it had not agreed on the substantial justice criterion, had all agreed that the applicant did not meet the unnecessary hardship requirement because the property was not unique compared to similar properties and it wouldn’t deny the applicant a reasonable use of their property. To grant the appeal for the rehearing, he continued, the board would have to decide that it hadn’t adequately considered the facts.
Mr. Grant stated that it seemed to him that what the board did was right and proper. Mr. Trudelle and Ms. Brown stated they stood by their decisions and that they felt the correct decision was made. The Chairman agreed. The decision to deny the appeal was unanimous.
Meeting adjourned at 8:15 pm.