The Town of Harrisville Zoning Board of Adjustment held a special meeting on Wednesday, May 30, 2018 @ the Town Offices located at 705 Chesham Road.
Members present: Hal Grant, Chairman; Jay Jacobs Selectman; Patrick Gagne Alternate; Jeffrey Trudelle; Mary Ann Noyer Alternate
Members absent: Charles Sorenson, Vice-Chairman; Rex Baker
Members of the public: Stephanie Raynor, Jason Raynor, Adam Kossayda, Doug Walker, Noel Greiner, Pat McCarthy, Doug McCarthy, Don Scott, Kathy Scott, Chick Colony, Patricia Colony, Erin Hammerstedt, Silas Little, Jeff Trudelle*, Kathy Bollerud, Scott Oliver, Bill Raynor
*ZBA member Jeff Trudelle recused himself from the proceedings and sat with members of the public.
Hal Grant opened the meeting at 7:04 pm to address the following:
Jason and Stephanie Raynor, Miller property,Application #1-2018-HDC, 3 Main Street (Map 61 Lot 4)– Appeal of the Historic District Commission’s Decision of May 15, 2018 to disallow relocation of the house to attach it to the barn.
Mr. Grant asked the Raynors if they desired to proceed, despite the availability of four board members rather than a full board. The Raynors responded that they did.
Adam Kossayda, attorney for the applicants, stated that his clients’ appeal was filed in response to the Historic District Commission’s decision of May 15, reversing its decision of April 10. The first ground for the appeal, he stated, is the timeline and the requirement under RSA 676:9 of a 45-day review, which they feel was violated. Mr. Kossayda summarized the timeline of submissions, meetings, site visits, and email correspondence, noting that the initial application was filed on January 12, 2018 and an amended plan proposing relocation of the house was filed on March 23. Following the March 23 submission, Mr. Raynor asked Doug Walker, the Chairman of the HDC, if he needed to file a new application. On March 4, Mr. Walker responded that he did not. Mr. Kossayda noted that, under RSA 676:9, action is required within 45 days of an application’s filing; otherwise, it is deemed accepted. Mr. Kossayda submitted that March 23 was the official filing date. He reviewed for the board that on April 10, the HDC voted unanimously to approve relocation of the house “with conditions to be outlined pending the final design.” The discussion at that point, he noted, related to aesthetic and architectural details.
The Raynors then worked with their architect to incorporate some of the requested architectural elements, which were discussed at the April 17 meeting. At the subsequent meeting on May 15, the Raynors were prepared to review these details further with the HDC. On that night, the HDC, more than 30 days after voting to allow the relocation, voted to disallow relocation. Mr. Kossayda reiterated that this was 45 days after the application was submitted, and therefore in violation of RSA 676:9. Should the ZBA agree, Mr. Kossayda believed the rest of the appeal was moot. He also suggested that the April 10 decision was binding on both the HDC and the ZBA, which he believed should step into the shoes of the HDC, as cited in Ouellette v. Kingston. Given that no party or board member appealed the HDC’s April 10 decision, Mr. Kossayda reiterated that he believes it’s binding on all parties. He returned to the idea that it was the final design considerations that should be the subject of discussion, and that the Raynors, as they’ve expressed all along, were willing and desired to work with the HDC on those aspects.
The second ground for appeal stemmed from the Raynors’ reliance on the April 10 decision in their investment in the property, the plans, and their contract with the property owner, which they were now at risk of breaching given the HDC’s reversal. Mr. Kossayda cited municipal estoppel and the municipality’s need to honor the board’s initial vote. He asked the ZBA to acknowledge that, under 676:9, the application should have been deemed approved and, if the ZBA did not agree, that it should proceed with a de novo review of the application bound by the April 10 decision. He then reviewed the design considerations outlined in the April 17 minutes, and the work his clients did with their architect to address these in preparation for the May 15 hearing.
If the ZBA did not agree with any of the grounds stated, Mr. Kossayda suggested the ZBA start anew and apply the standards and regulations of the HDC to his clients’ application.
Jay Raynor added that they were concerned about having to return to the HDC given their resulting loss of faith in the board and its procedures and their concern about continuing to be subject to arbitrary and capricious rule making. Further, while understanding the perspective of Historic Harrisville given its mandate of historic preservation, he objected to the influence of HHI on a supposedly objective HDC and HHI’s openly avowed attempts to stall or stop the project, evidenced in the letter submitted to the ZBA. Mr. Kossayda agreed that his client should not have to return to the HDC and questioned why it was not disclosed by the HDC that two of its board members also are board members of Historic Harrisville. Referring to the May 26 letter from Historic Harrisville to the ZBA, Mr. Kossayda noted that it’s the statutes that are relevant, not Roberts Rules of Order and that he believes, contrary to what’s stated in the letter, that it isthe ZBA’s job “to evaluate the appropriateness of the project against the standards used by the HDC.” Mr. Kossayda further referred to what he saw as a veiled threat by HHI in its letter, reading, “The HDC has the authority to disapprove of this project and will likely continue to disapprove of all proposals that do not meet the standards.” The attorney wondered how HHI would know that. Finally, he reviewed that the appeal to the ZBA sought: 1) a decision on the 45-day review violation; If the ZBA didn’t agree, then 2) De novo review of the application in light of the April 10 decision; If the ZBA didn’t agree on that, then 3) De novo review of the application submitted March 23.
Hal Grant then turned to the town attorney, Silas Little, on the first question of whether or not the application was acted on within 45 days. Mr. Little stated he believed the application process started when the agent authorization was submitted on May 4, 2018. Mr. Kossayda cited the HDC’s acceptance of retroactive authorization. Discussion ensued on the circumstances establishing Mr. Raynor as agent for the property owner, Joan Miller.
A lengthy discussion and debate ensued among the ZBA, the attorneys and the HDC regarding the timeline and the question of whether or not the applicant ever agreed to stop the clock and whether or not the application was technically complete. Doug Walker submitted a timeline of the application process. Jay Jacobs asked Mr. Walker if the HDC declared at any point that the application was not complete. Mr. Walker shared copies of the original application, the amended application and the drawings submitted by the Raynors. He also noted that, in conversations with Mr. Raynor, he asked for additional information and more detail, including CAD drawings and elevations. Mr. Walker summarized the timeline of submissions and correspondence and the scheduling of an informal site visit for observation purposes only, which occurred on March 20. In Mr. Walker’s opinion, April 4 was the key date, given that was the date the HDC accepted the application and the plans Mr. Raynor had at that point. Mr. Walker didn’t feel the application was ever complete.
He also noted the HDC to date had never reviewed an application that involved the relocation or demolition of structures. He reviewed the HDC’s thought process and approach to the issue and stated that, rather than look at what other towns had done and what the HDC’s own regulations are, in hindsight he should have started at the top with the National Historic Register and the National Historic Landmark District Guidelines. Mr. Walker acknowledged that Mr. Raynor was steered in a certain direction by the board but noted that HDC board members had different opinions. He further explained the board’s evolution in its perspective as it increasingly considered the ramifications of the proposal on the historic district as a whole and weighed what the HDC considered as a lifestyle convenience for the applicants against the National Landmark standards, which state that a building should not be moved unless there is no alternative to preserve it. Mr. Walker also referred to the input from the New Hampshire Division of Historic Resources and the NH Preservation Alliance. Later in the meeting, HDC member Kathy Scott further described the HDC’s change in thinking and the increased importance the board put on the guidelines set forth at the federal level. Following the discussions with experts at the state level, which didn’t occur until after the April 10 meeting, the board considered more intently the possible loss of the building’s status as a contributing element to the National Landmark District and the impact that moving the house from its original site would have on the overall fabric of Harrisville’s historic district.
The ZBA, Mr. Kossayda and Mr. Walker again returned to the question of the timeline. It was Mr. Kossayda’s contention that, though it was in the HDC’s purview to do so, it never deemed the application incomplete. All parties also returned to the subject of the authorizing of Mr. Raynor by Mr. Miller as agent, and Mr. Walker confirmed that the HDC had agreed the authorization was retroactive to the submission of the initial application.
Mary Ann Noyer then asked the HDC, if it had a change in thinking about its April 10 decision to allow relocation, if it ever considered a rehearing on the matter and why no one requested one. She further asked why there was nothing on the April 17 meeting agenda about concern over the April 10 decision, if concern had arisen. She also asked Silas Little if the HDC is allowed to reconsider its decisions within 30 days. Mr. Little stated he believed so, given the Supreme Court case out of Nashua which upheld a zoning board’s reversal of its own decision, the reversal having happened within 30 days.
Mr. Little subsequently stated that the applicant confused the board by continually changing plans. Jay Jacobs noted that nowhere in the HDC application is there any requirement for any specific type of plans. Jay Raynor added that the agenda for the April 17 meeting, one week after the decision to allow the relocation, included discussion of design details. He added that, though he repeatedly offered to share plans that evening, the HDC would not consider them, instead stating it needed further assistance from state experts. Both Mr. Kossayda and Mr. Raynor stated that the Raynors did not agree to waive the 45-day review requirement. Mr. Kossaya further cited a letter he submitted to the HDC immediately after the April 17 meeting objecting to what he and his client perceived as a delay.
On matters of procedure, Jay Jacobs raised the issue of the HDC’s entering into Executive Session on May 15 to draft its motion when this is not a permissible reason to do so. Then Hal Grant raised a question about notification of abutters, given that Pat McCarthy stated she was not notified about the May 15 meeting, and asked Mr. Little what the ramifications of this are. Mr. Little stated that, in the case when an abutter is not notified, technically any decision made at the meeting is void. Mr. Kossayda added that this also was a concern of his client, that his client was being held to different standards from previous HDC applicants whose hearing was not noticed.
Hal Grant asked to return to the issue of the 30-days, asking fellow board members if it was a problem that the HDC hadn’t reversed its decision within that time. Mr. Kossayda stated, from his client’s perspective, it was. Mr. Little argued that he didn’t believe the situation applied to the current appeal before the ZBA, after which Mr. Kossayda read from RSA 677:2 as follows: “Within 30 days after any order or decision of the zoning board of adjustment, or any decision of the local legislative body or a board of appeals in regard to its zoning, the selectmen, any party to the action or proceedings, or any person directly affected thereby may apply for a rehearing.…” Mr. Little responded the statute didn’t apply to appeals of HDC decisions to the ZBA.
ZBA members discussed the ramifications of this language on the May 15 decision and whether it bound the HDC to its April 10 decision. Erin Hammerstedt suggested the May vote was an amendment to a decision. Discussion ensued with Jay Jacobs noting it was a complete reversal of a recordable decision. Silas Little argued that the HDC vacated its decision on April 17 by requesting more information from the applicant at that meeting. He further stated that the HDC had been taken advantage of by an incomplete approach on the part of the applicant. Mr. Kossayda disagreed, citing his client’s repeated attempts to work with the HDC, his client’s concern for the historic district, and Kathy Scott’s statement on April 17 that the HDC would honor its decision of April 10.
Jay Jacobs felt it was the burden of the HDC to require something more complete from the Raynors and that the board had from the middle of January to research the proposal. Mr. Walker clarified that the idea of moving buildings wasn’t part of the equation until March 23. Mr. Kossayda argued that all the same standards would have applied to the initial proposal as to the later plans. Mr. Raynor added that discussion had occurred at the April 10 meeting citing the debate around relocation of 119 and 121 Main Street as the basis for HDC thinking and thus he didn’t agree that discussion of relocation of buildings was an altogether new topic for the HDC.
Further discussion ensued over the timeframe and chronology on the application, review and decision process, which standards and guidelines were applied and when, Historic Harrisville’s role in the process and the nature of its involvement, and the importance of protecting the elements of the village that contribute to Harrisville’s status as a National Landmark District. The ZBA was asked to move ahead with a decision as no consensus was reached on any of the issues.
After Jay Jacobs moved to close the public hearing portion, a question arose as to what exactly the ZBA was approving. Hal Grant clarified that the ZBA was not approving a specific plan but instead was voting on the merits of the appeal of the HDC’s May 15 decision and judging whether or not the April 10 vote to allow moving the building was the valid vote. Further, the ZBA’s understanding was that the Raynors would work with the HDC to come up with a workable solution as to how the structure will look once it’s moved. ZBA members agreed.
Kathy Bollerud then spoke to the HDC’s mandate to protect buildings according to the guidelines of National Landmark Districts and that Historic Harrisville’s input is critical given its job of protecting the National Landmark District. She urged the HDC to use the expert opinions available to them. Mr. Jacobs noted that, from his reading of the Secretary of the Interior’sStandards for Rehabilitation, it didn’t appear that moving buildings was prohibited.
Mr. Grant requested the ZBA to return to the motion put forth by Mr. Jacobs. Jay Raynor reiterated his concern over returning to the HDC to continue the process and read from Historic Harrisville’ May 26 letter to the HDC citing that doing so “will be a frustrating exercise for all parties, and an expensive one for the applicant. While the Standards and Guidelines are provided by the National Park Service, the authority to interpret them and decide or disapprove of a project lies at the local level. The HDC has the authority to disapprove of this project, and will likely continue to disapprove of all proposals that do not meet the Standards.”
Doug Walker then read from the National Landmark District guidelines regarding protecting historic properties and noted that it was this big picture that guided the HDC.
Scott Oliver of the HDC then read aloud the conditions set forth by the HDC at its April 10 meeting, included in the minutes of April 17, and noted that the Raynors had a plan that met these conditions, which include: orienting the façade of the house to the road, maintaining visibility of the entire house façade, maintaining visibility of the entire barn façade, maintaining the relationship of the house to the wing and the relationship of the house to the barn (with the house as the primary element and its façade forward of the barn façade), elevations of the house relative to elevation of the barn, and location of all historic building elements within the historic district boundary. If a garage is to be added, it should be secondary to both the house and the barn and its doors may not face the front (south) elevation. Mr. Oliver proceeded to state that the Raynors have been working diligently with the HDC, contrary to previous statements of others.
Patrick Gagne seconded the motion to close the public portion of the meeting.
Jay Jacobs then moved that the May 15 decision of the HDC be vacated for failure of the HDC to act within the 45 days required by statute and that the decision of the April 10 vote stand. Mary Ann Noyer seconded.
Following discussion of the language of the motion, Mr. Jacobs withdrew his original motion and, in its place, moved that, In the appeal of Raynor v. HDC, the decision of April 10 stands based on the subsequent violation of the Rules of Procedure leading to its May 15 vote. Patrick Gagne seconded. All voted in favor. The ZBA unanimously ruled to uphold the appeal.
When asked where they stand procedurally, the Raynors reiterated their request for a de novo review and application approval by the ZBA. The ZBA indicated its belief that the applicants would work with the HDC to finalize plans based on the moving of the building and meeting the requirements outlined in the April 17 meeting and read aloud by Scott Oliver.
ZBA agreed to address May 16 Meeting Minutes at its June meeting.
Meeting adjourned at 9:40 pm.