The Town of Harrisville Zoning Board of Adjustment held its regular meeting on Wednesday, July 18, 2018 @ the Town Offices located at 705 Chesham Road.
Members present: Hal Grant, Chairman; Charles Sorenson, Jay Jacobs Selectman; Rex Baker; Patrick Gagne Alternate; Jeffrey Trudelle*; Mary Ann Noyer Alternate; Pegg Monahan Alternate
Members absent: none
Members of the public: Jason Raynor, Stephanie Raynor, Adam Kossayda, John Wrigley, Erin Hammerstedt, Noel Greiner, Ann Colony, Shane Long, Jonathan Miner, Susan Brown, Scott Stone, Richard Grant, Dorothy Grant, Angela Hendrickson, Charles Michal, Les LaMois, Andrea Hodson, Kathy Bollerud, Barry Heiniluoma, Jeannie Eastman, Patricia Colony, Chick Colony, Doug Walker, Kathy Scott, Don Scott, Sue Coleman, Tom Weller, William Raynor, Kathleen Hamon, Tom Hamon, Patty Massey, Seth Farmer, Allan Saari, Nick Colony, Doug McCarthy, Pat McCarthy
* Note: ZBA member Jeff Trudelle was recused from the proceedings and sat with members of the public.
Hal Grant opened the meeting at 7:05 pm to address the following:
1-Motion for Rehearing filed by Historic Harrisville, Inc. to rehear the appeal upheld by the ZBA on May 30, 2018 in the matter of HDC Application #1-2018, Jason and Stephanie Raynor, 3 Main Street (Map 61-Lot 4).
Mr. Grant explained that this first agenda item was for consideration by the board only, with no input or questions from the public,on a decision the ZBA made on May 30.
Mr. Sorenson asked if any board members wished to comment regarding the filings submitted by Historic Harrisville and the meeting minutes from the initial decision, and if there was anything presented in the record that would prompt the board to want to rehear the matter.
Mr. Jacobs started, stating he reviewed all the material and, on the five points presented by Historic Harrisville in its appeal, he agreed with the first position, that the application by the Raynors to relocate the building at 3 main Street was denied by the Historic District Commission on May 15. Mr. Jacobs also agreed on the second point, that the denial was appealed to the ZBA and, at its meeting May 30, the ZBA upheld the appeal on procedural grounds. On the third point, that the ZBA erred in its interpretation of proper procedure and, more importantly, that the issue is too important to decide on procedural grounds, Mr. Jacobs disagreed profoundly, stating that the procedural errors were not minimal but were very significant and included: a) the HDC’s entering into Executive Session to draft a motion which, Mr. Jacobs stated, is not included in any of the reasons under RSA 91-A:3-II for entering into non-public session; and, b) not properly noticing abutters.
On Historic Harrisville’s fourth point, that the ZBA was, and is, obligated to take a de novo review of the issues and not decide the case on procedural grounds, Mr. Sorenson responded, addressing Historic Harrisville’s citation here of the Ouillette case. Mr. Sorenson noted that the Ouillette case was improperly cited and does not stand for the right to a de novo hearing. He explained that, instead, if the ZBA decides to take a de novo hearing of a matter, its judgment can be substituted completely for that of the Historic District Commission (HDC). What the case was about was whether or not the ZBA had to have deference with regard to the decisions of fact that were made by the HDC. He added that Ouillette stands for the proposition that the ZBA doesn’t, and that it doesn’t address the question of procedural grounds, and doesn’t address the question of the extent to which the ZBA can accept facts that were determined in the record by the HDC.
Mr. Sorenson proceeded to note that the procedure, from the beginning, violates fundamental state law in terms of the notices, in terms of ex parte contacts between individuals other than the Raynors, other than members of the board, that repeatedly occurred after April 10 and through the present. He added the connection behind the scenes between Historical Harrisville and the HDC without the knowledge of the Raynors with regard to what was going to be considered, decided and on the agenda. Looking at RSA 91-A and procedural law generally, the entire process undertaken from the beginning by the HDC was fundamentally flawed. Given that it continues to be so, Mr. Sorenson added, and the Raynors have been held up by procrastinated proceedings, he believes a court would kick it back to the HDC to start over. But, since the ZBA has de novo review, he didn’t believe that was likely. Returning to the ZBA’s May 30 decision, Mr. Sorenson stated he believed it was absolutely sound and the right thing to do and that the ZBA hoped the applicant would return to the HDC, who would then properly consider the issues, but at this point appears it probably didn’t.
Mr. Grant then read the fifth ground of Historic Harrisville’s appeal that, if the ZBA was remanding the case back to the HDC, the commission’s determination that the building should not be moved should be upheld. Mr. Jacobs responded that the ZBA already determined that relocation should be allowed.
Mr. Sorenson added that, after reading everything from beginning to end on this case, he believes the decision made by the members of the ZBA on May 30 was not something he was willing to rehear. Mr. Sorenson subsequently moved that the ZBA deny the rehearing. Patrick Gagne seconded the motion. The vote was 5-0 in favor.
The Chair explained that the next issue was a public hearing and that the board would set a 5-minute limit on comments. Upon a question by Mr. Jacobs if the board was obligated to hear the matter, Mr. Sorenson explained that the appeal was submitted in time and was supported and must be heard. The matter at hand was as follows:
2-Administrative Appeal by Jason and Stephanie Raynor, 3 Main Street,Application #1-2018-HDC, (Map 61 Lot 4), of the June 27, 2018 decision by the HDC denying their application.
Adam Kossayda, attorney for the Raynors, provided a timeline leading up to the present, including the January filing of his clients’ application which in March was revised to include a relocation of the house to attach it to the barn, and an April 10 unanimous decision by the HDC to allow relocation pending final approval of design considerations. On April 17, Mr. Kossayda continued, the HDC laid out the design conditions, after which, at a meeting on May 15, it reversed its decision and voted to disallow moving the building. The Raynors appealed that decision to the ZBA which, on May 30, voted to uphold the appeal and reaffirm the HDC’s April 10 decision. At the HDC’s June 27meeting, a more than 5-hour meeting spent reviewing the various design elements which the applicant agreed to accommodate, the HDC ultimately voted down the application. Mr. Kossayda cited the minutes of that meeting, including the design parameters around the barn cupola, barn dormers and barn and house windows. Mr. Kossayda also referenced a comment at that meeting by HDC Chair Doug Walker that he hoped the application would go through the appeal process with the ZBA as it gives the HDC the option to put the proposal back where he thought it should be in the first place, to May 15 when the HDC disallowed the relocation. Though the Raynors agreed to extend the 45-day deadline to make the changes requested by the HDC, Mr. Kossayda stated, the HDC still shot down the plan, in Mr. Kossayda’s words, “because they simply don’t want to do it.”
The Raynors’ attorney then presented evidence of what he called secret extensive meetings between the HDC and Historic Harrisville. Evidence included email communications from Historic Harrisville referencing HDC members Doug Walker, Noel Greiner and Kathy Scott and their positions, and the suggestion not to replace one resigning board member in order to maintain a majority vote in their favor. Mr. Kossayda confirmed that these were the members who subsequently voted down the application on June 27, alleging that his client couldn’t get a fair shake because “the fix was in.” He urged the ZBA to consider that the 45-day deadline had come and gone several times and to consider the time and money spent, and extensive construction delays incurred, by the Raynors. Mr. Kossayda then suggested the ZBA step into the shoes of the HDC and suggested that the ZBA was bound by the decision of April 10 allowing the relocation of the house subject to the design conditions, a decision that was never appealed and can’t be at this point.
Mr. Sorenson asked Mr. Kossayda what the grounds were upon which the HDC based its June 27 decision to deny the application, and the regulations and guidelines cited, and the HDC’s findings of fact. Mr. Kossayda referred to the lengthy discussion on the design elements and the fact that the HDC denied the application even after his client agreed to them. Mr. Sorenson asked if the minutes reflected any discussion of the ten guidelines that are part of the HDC Regulations. Mr. Kossayda replied that standards #1,2, 5 and 7 were used as a basis for the denial, though without an analysis. From his perspective, he added, it wasn’t about applying the regulations but the desire not to allow the relocation to happen.
Mr. Sorenson noted that the end of the minutes of June 27 state that the HDC didn’t feel it had to explain its reasons for denial because the ZBA would be conducting a de novo hearing. Mr. Sorenson wished to correct this interpretation of a de novo hearing, explaining it gives the ZBA the power to substitute its judgment for that of the HDC; it doesn’t mean that the HDC doesn’t have to explain its decision in the first place but has to state in the record why they think they were right. Mr. Sorenson further stated he had a hard time finding in the record any substantive discussion of the regulations and why the HDC believed the application violated those standards. Again, he referred to the meaning of a de novo review, saying it is not a redo but a chance for the ZBA to look at the record evidence, and what is undisputed, and see if the ZBA agrees with the conclusions made by the HDC. Mr. Sorenson didn’t feel the record provided much evidence as to what the HDC was thinking. This required the ZBA then, to review the factors and to ask the HDC specifically why it doesn’t feel the standards were met and to ask the applicant why they felt the factors were met.
Mr. Sorenson began by asking what exactly the Raynors wanted to do with the house at 3 Main Street and to provide any visuals to explain. Mr. Kossayda stated that the plans were submitted as Exhibit 9 and explained that the proposal is to move the house in the same orientation to the other side of the barn, attaching it to the barn’s northwest corner, and adding a garage. Mr. Kossayda added that the stone foundation needs repair and the house needs extensive repair and, rather than adding significant square footage by building an addition to connect the two structures, which was the initial plan, the Raynors determined with their architect that moving the structure would be more affordable and more in keeping with the regulations.
Asked the comparison of the square footage between the existing and proposed structures, the applicant replied that the total living space of the main house, the garage and the barn, which was being converted to living space, was approximately 5,500 square feet. The existing square footage of the house, without the barn, is about 2,500 square feet. Adding an infill addition without relocating the house would mean about 8,000 square feet. Mr. Kossayda noted that the HDC had urged the applicant to go through with an infill.
Hal Grant asked what the square footage of the angled ell totaled and if that would be removed. Mr. Raynor confirmed that it was part of the plan to remove it, but that they would concede to keeping it if required as the HDC wished, and that it approximated 1,000 square feet. Mr. Kossayda added that the original windows on the front of the house would remain, given it was determined they can be saved, and that, regarding additional concessions by his client, louvered vents would be installed on the cupola rather than glass, dormered gables or clear stories rather than full risers would be added to the barn, and the size of the windows on the barn would be reduced and in a six over six pattern.
Mr. Sorenson then asked what the HDC had approved, or agreed to, as part of the plan at the June 27 meeting. His hope, he stated, was to assess what issues lay before the ZBA and if the ZBA believes the decisions made by the HDC regarding approvals were consistent with the ZBA’s views of the facts. Mr. Kossayda referred to the design elements set forth on April 17. It was confirmed that the HDC’s 4-1 vote to retain the angled ell was a reversal of a prior decision to allow its demolition. Mr. Sorenson noted that the board accepted the orientation of the façade to the road, after which Mr. Kossayda referred to the site plan up on the screen and explained the layout of the property and the proposal. Mr. Kossayda continued that the second element was the requirement that, if the garage was added, it must be secondary to the house and the barn, and the HDC agreed it was recessed and subservient enough. Mr. Kossayda added that house was designed so that all elements were staggered and could not be seen from the road at the same time. The HDC had discussed maintaining the relationship of the house to the wing, which is being done, and maintaining the relationship of the house and the barn, with the house as the primary element and the house façade forward of the barn façade. The HDC agreed this condition was met in the proposal.
Asked by Mr. Sorenson about any discussion of the doors on the garage and their location, Mr. Kossayda replied that, initially, the HDC was concerned about the doors facing the road but, after discussing the other houses in town with this feature, the HDC subsequently was not concerned about the garage doors facing Main Street. Mr. Kossayda moved to the next design parameter, the visibility of the entire house façade which, he stated, the HDC agreed the proposal maintained. The HDC also agreed that the proposal satisfied their condition that the elevation of the house relative to the elevation of the barn was maintained.
Mr. Sorenson referenced from the June 27 minutes the motion made by HDC member Tom Weller regarding the spatial relationships, and the subsequent vote of 4-1 in favor that the house met the essential spatial relationships as noted in the HDC’s April 17 meeting. Mr. Sorenson asked to discuss the one opposing vote, focused on concern about the spatial relationship of the garage to the house. Mr. Kossayda responded that the house will remain prominent and he explained the design features of the proposed garage doors to attempt to match the existing barn doors and that the spatial relationship between the garage and the house are no different from that of other homes in the historic district. In support of this, Mr. Raynor submitted photographs of examples on Main Street, Church Street and Prospect Street, attached to these minutes as Exhibit A. Mr. Raynor added that, initially, the proposal entailed the garage on the south side of the house but, at Mr. Weller’s suggestion, it was moved to the north side in an effort to reduce its visibility from the road.
Mr. Kossayda summarized that his clients feel the HDC was correct in these matters and that the proposal complies with the requirements set forth on April 17. Subsequently, Mr. Sorenson suggested turning to the guidelines incorporated in the HDC regulations, particularly the provisions cited by Kathy Scott as the reasons for denying it. The HDC’s Guidelines for Property Owners, approved at Town Meeting 1969, were shown on the screen.
Mr. Kossayda recited the HDC Regulations’ purpose clause, to protect the historic district, to protect property values, to foster civic beauty and noted that the Secretary of the Interior had updated the standards since the HDC’s adoption of its own regulations. Mr. Kossayda stated, however, that the regulations displayed were the regulations his client had notice of and are the ones that apply. Asked by Mr. Sorenson if there were any updates to the HDC regulations since 1969, Mr. Kossayda replied not that he was aware of. Mr. Sorenson confirmed that, as far as public record, the 1969 HDC Regulations are the regulations and guidelines.
On the first guideline, Every reasonable effort shall be made to provide a compatible use for a property which requires minimal alteration of the building, structure, or site and its environment, or to use a property for its originally intended purpose, Mr. Kossayda confirmed that the proposed use is the same as the existing use and added that the proposal promotes the continued use of the property as a single-family home for a long time to come. In terms of the actual modification of the building, Mr. Sorenson asked what alterations were proposed for the building apart from its location. Mr. Kossayda responded the addition of a new foundation but keeping a granite façade over it, but that the modifications would mostly be to the interior. Mr. Raynor noted the exterior needs to be repaired but no significant changes were proposed. Mr. Sorenson confirmed that they were repairs, not alterations. As far as any change to the site and its environment, Mr. Sorenson asked the applicant how relocating the house would affect these. Mr. Kossayda replied that, first, it will mean the structure will no longer be non-conforming but will comply with the setbacks as required under the current ordinances. He added that, while a new foundation will be dug, the goal is to maintain the existing slope of the property and that the existing trees and vegetation will remain. The applicant confirmed that the house would be moved approximately 30 feet back away from the road and approximately 50 feet north to the opposite side of the barn.
Mr. Raynor added that one of their considerations throughout the design process is the fact that the road has changed since the house was built, increasingly encroaching on the front yard, and also causing the property line to change. Mr. Raynor believes this is to say that the house and property now are not in the same relative location as they were roughly 200 years ago and thus looks like it’s in a different position now. Mr. Kossayda added the safety concern of the expanded road and his belief that moving the house promotes continued use of the property as a single-family home. Mr. Kossayda stated he believes the proposal entails minimal alteration of the site.
Mr. Kossayda read the second guideline, The distinguishing original qualities or character of a building, structure, or site and its environment shall not be destroyed. The removal or alteration of any historic material or distinctive architectural features should be avoided when possible, and noted that the applicant’s position is that no historic material is being destroyed but, instead is being preserved and improved. He added that the building is being moved because the applicants respect the historical nature of it and want to preserve its distinguishing characteristics and, if they wanted a McMansion, they’d tear it down and build something new. Asked what they think the distinguishing original qualities are, Mr. Raynor responded the architecture and design and trim detail, which will not change. He submitted photographs of the trim board, attached as Exhibit B to these minutes.
The board moved to the third guideline: All buildings, structures, and sites shall be recognized as products of their own time. Alterations that have no historical basis and which seek to create an earlier appearance shall be discouraged. Mr. Kossayda believes the proposal complies, citing how the structure has changed over the years and that the changes are being respected by keeping them together with the relocation and not altering them to try to put the structures back in time or recreate what was there. Mr. Sorenson referenced discussion at the end of the June 27 meeting related to proposed changes and asked about proposed changes to the barn. Mr. Kossayda explained the need for windows for ventilation and views, given that the barn was being converted to living space. Mention was made of the design of the existing versus proposed windows on the side and back of the barn, and the applicant’s position was that the requests of the HDC to scale down the size of the barn windows and match the pattern of the main house was in line with the look of the district. Brief discussion of the cupola ensued.
Asked if the applicant was in a position to commit to exactly what it proposes if approved, Mr. Kossayda responded yes.
Moving to guideline number 4, Changes which may have taken place in the course of time are evidence of the history and development of a building, structure, or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected. Mr. Kossayda stated that he sees this as an extension of number three and, again, that the Raynors proposed to move the house with the changes that had occurred over time.
Addressing guideline number 5, Distinctive stylistic features or examples of skilled craftsmanship which characterize a building, structure, or site shall be treated with sensitivity, the applicant noted the architectural details, including such features as the trim and the barn cupola and doors and round window, would remain and their hope is to keep the property’s farm-like character.
Mr. Sorenson commented that guidelines 5 and 6 appear related. Mr. Kossayda stated the trim and clapboard siding would be repaired as well as the foundation but in a new location. Mr. Raynor stated they hadn’t decided about the shutters, which the HDC did not require as a condition. Mr. Kossayda added the front door, an important feature, also would be repaired.
Guideline number 7, pertaining to surface cleaning of structures, was determined not to be an issue either previously or currently. The applicant confirmed that Tom Forest, responsible for septic work, would oversee protection of resources potentially affected, as stipulated in guideline number 8, but that no archaeological resources had been identified or raised to date.
Mr. Kossayda highlighted guideline number 9, Contemporary design for alterations and additions to existing properties shall not be discouraged when such alterations and additions do not destroy significant historical, architectural or cultural material, and such design is compatible with the size, scale, color, material, and character of the property, neighborhood or environment, because its language had changed in the Secretary of the Interior’s Guidelines but not in the HDC’s regulations. He suggested that the historic district is not a museum, but a living, breathing place that needs to allow people to live there. By not discouraging “contemporary design for alterations and additions” that do not destroy significant historical, architectural or cultural material, Mr. Kossayda believes the guidelines encourage such alterations when they are compatible with the features of the property, neighborhood and environment. He added the importance of allowing property owners to make the necessary alterations to keep up their homes and preserve the district.
Asked his take on the historical significance of the building and the location, Mr. Kossayda noted he believes it’s on the outskirts of, if at all within, the historic district, acknowledging it is listed as a contributing element in the national landmark district but that the local historic district and the national landmark district are not the same, the latter including all of Harrisville Pond and everything on it and the field across from the subject property. Mr. Kossayda alleged that relocating the house would not affect the property’s designation as a contributing element. Mr. Raynor believes the house, if left to fall into further disrepair, would jeopardize its standing even more.
Mr. Sorenson referenced the HDC’s concern with respect to the size and scale of the proposed structure for the neighborhood. Mr. Raynor approached with 3-D renderings, attached to these minutes as Exhibit D, and noted examples of other large houses within the district.
The tenth and final guideline was read aloud by Mr. Sorenson as follows: Wherever possible, new additions or alterations to structures shall be done in such a manner that if such additions or alterations were to be removed in the future, the essential form and integrity of the structure would be unimpaired. Asked about Kathy Scott’s concern with this, Mr. Kossayda stated they disagreed and that all the proposed changes could be undone.
Mr. Sorenson explained that the Guidelines for Applying the Secretary of the Interior’s Standards for Rehabilitation, referred to in the final paragraph of the HDC’s regulations, states that buildings should not be moved except as a last resort. According to this paragraph, read Mr. Sorenson, the guidelines “are available from the Commission on request.” Mr. Kossayda responded that they are not available, were nearly impossible to find, and that they are the incorrect guidelines because they are based upon the Revised Standards of Rehabilitation, not those codified in the HDC regulations, and thus they do not apply. Mr. Kossayda added that number 9 is vastly different and that the others aren’t the same and, thus, the interpretation of the expanded guidelines, included in letters submitted by the New Hampshire Preservation Alliance and others, doesn’t apply. Mr. Kossayda stated that these expanded federal standards apply to national parks and properties owned by the federal government.
As a final point, Mr. Kossayda cited the legal case of Simplex Technologies v. the Town of Newington (Case 145NH727) which addresses the balancing of zoning decisions and restrictions with property rights, and the protection of these rights from unreasonable restrictions that hinder allowable use of land. Mr. Kossayda alleged that applying standards that don’t apply is an unreasonable restriction.
With the completion of the applicant’s testimony, Mr. Sorenson then asked the HDC to present its case for denying the application. When Doug Walker began with the background on the HDC’s decision to disallow moving the building, Mr. Sorenson replied that that issue was taken off the table by the HDC’s April 10 decision and the ZBA’s subsequent upholding of that decision and, thus, it should no longer have been part of the evaluation of the application. Mr. Sorenson added that the ZBA needed substantive evidence of why the HDC thought the application violated its regulations and couldn’t find a substantive explanation in the record of the June 27 denial. Mr. Walker replied that it was turned down because the HDC felt it didn’t meet certain criteria.
Kathy Scott acknowledged that all the land use boards need to revisit proper procedures, but that it was difficult to do that in the midst of such an application. That said, Ms. Scott offered the following reasons for the HDC’s decisions. She stated that the HDC thought its original decision to allow the demolition of the angled ell, one of several decisions made on May 15, was vacated by the ZBA’s decision to uphold the April 10 decision and that she had advocated on two occasions to save this portion of the structure. She further explained that the HDC believed it had to vote for or against the Raynors and that its regulations didn’t allow for extensions. Mr. Sorenson asked where in the HDC regulations this was discussed. Kathy Scott cited from the Powers and Duties section and the group considered the following language: IT SHALL BE THE DUTY OF THE COMMISSION TO FILE WITH THE BUILDING INSPECTOR OR OTHER DULY DELEGATED AUTHORITY EITHER A CERTIFICATE OF APPROVAL OR A NOTICE OF DISAPPROVAL FOLLOWING THE REVIEW AND DETERMINATION OF THE APPLICATION.
Jay Jacobs noted that nothing in the language states that the HDC can’t attach conditions to an application. Mr. Sorenson added that land use boards, under state law, are allowed to attach conditions and that it’s done all the time. Kathy Scott replied that the HDC interpreted that it did not have that authority. Mr. Sorenson then responded that the HDC considered a motion that had conditions on it and had applicants who had indicated their willingness to comply and, yet, the HDC denied it even though the motion itself identified precisely what the minutes from the HDC’s own meeting identified as the problems the HDC saw.
Kathy Scott proceeded to address the ten guidelines as follows:
1- Every reasonable effort shall be made to provide a compatible use for a property which requires minimal alteration of the building, structure, or site and its environment, or to use a property for its originally intended purpose. Ms. Scott believes the applicant and the HDC interpreted this guideline differently and that they disagreed on the term ‘minimal’ and that she had spoken specifically about the garage and the barn as not being minimal but extensive. Mr. Sorenson asked why she thought the changes to the barn were not minimal. Kathy Scott replied she thought the design of both the garage and the barn were very modern from a historical perspective and in their linear aspect and size. She added she thought the garage door facing forward also was a modern aspect, that the dormers destroyed the line of the barn and that the proposed barn windows and glass doors also were modern. Also, that the use of the barn as living space destroyed its original purpose as a barn. Mr. Sorenson noted that the regulations allow for changes to interior aspects of houses which is what the applicant proposes. He added that, regarding the barn dormers and windows, the applicants stated their willingness to modify their proposal and that they continually responded to everything the HDC asked for during the process, but that it was a moving target for them. No matter what they did, there was more to do. Kathy Scott replied that, from the HDC’s perspective, whatever they asked for, they got a modern solution that didn’t fit a historic district.
2- The distinguishing original qualities or character of a building, structure, or site and its environment shall not be destroyed. The removal or alteration of any historic material or distinctive architectural features should be avoided when possible. Kathy Scott referred back to the barn and her belief that its proposed use was not in keeping with its historic character and purpose and that it would lose its appearance.
3- All buildings, structures, and sites shall be recognized as products of their own time. Alterations that have no historical basis and which seek to create an earlier appearance shall be discouraged. Jay Jacobs asked why the HDC rejected the idea of windows in the cupola and Ms. Scott responded that the HDC’s understanding is the cupola originally had louvers. She added that an earlier owner had replaced what was there with a modern reproduction. Mr. Sorenson asked if the point was to freeze everything in time and referred to point number 9, which doesn’t discourage alterations that don’t destroy historical material. He added that the HDC and applicant both had agreed in earlier meetings that this was a very subjective decision.
Mr. Sorenson took a moment here to note the difficulty of the matter and that the members of all the boards are volunteers doing the best they can to struggle with issues with laws that aren’t clear and apply to the best of their understanding but that sometimes they’re not right. He then described the process of going to the ZBA for reconsideration or to request a rehearing, or ultimately go to a court which ultimately decides. He emphasized that reasonable minds can differ on this and that there is no one right answer but there is opinion and differences of opinion. Mr. Sorenson cited the 3-2 vote by the HDC as evidence of that difference.
4- Changes which may have taken place in the course of time are evidence of the history and development of a building, structure, or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected. Kathy Scott noted the agreement between the HDC and the applicant on the chimneys and the shutters as features which changed over time and did not necessarily need to be retained.
5- Distinctive stylistic features or examples of skilled craftsmanship which characterize a building, structure, or site shall be treated with sensitivity. Ms. Scott returned to the HDC’s concern about the dormers and windows and glass doors proposed for the barn. Mr. Sorenson asked about the rear of the house and the understanding that there is a certain amount of latitude with the HDC in the district with respect to this part of a house. Ms. Scott agreed this was discussed but that the concern was how visible the back of this house in particular from the water.
6-Deteriorated architectural features shall be repaired rather than replaced, wherever possible. In the event replacement is necessary, the new material should match the material being replaced in composition, design, color, texture, and other visual qualities. Repairs or replacement of missing architectural features should be based on accurate duplications of features, substantiated by historic, physical, or pictorial evidence, rather than on conjectural designs or the availability of different architectural elements from other buildings or structures. Kathy Scott noted the HDC felt comfortable the applicant would treat such features sensitively.
7- The surface cleaning of structures shall be undertaken with the gentlest means possible. Sandblasting and other cleaning methods that will damage the historic building materials shall not be undertaken. Again, the HDC had no issues.
8- Every reasonable effort shall be made to protect and preserve archaeological resources affected by, or adjacent to any project. The HDC had no issues here.
9- Contemporary design for alterations and additions to existing properties shall not be discouraged when such alterations and additions do not destroy significant historical, architectural or cultural material, and such design is compatible with the size, scale, color, material, and character of the property, neighborhood or environment. The HDC agreed the applicant would not destroy significant material.
10-Whenever possible, new additions or alterations to structures should be done in a manner that, if such additions or alterations were to be removed in the future, the essential form and integrity of the structure would be unimpaired. The HDC didn’t think it was reasonable that future owners would move a house back or remove major structural changes, such as those proposed for the barn and garage, and thus dishonored the historic nature and architectural integrity. Mr. Sorenson’s reading of that guideline was, if the new additions or alterations were removed, such as tearing down the garage, the essential form and integrity of the house and the barn would be unimpaired and that the guideline doesn’t state that you have to guarantee that that’s going to happen but, wherever possible, the structure should be able to be turned back to what it was. If new additions or alterations intruded into the original structure, then that might not be possible.
Referring back to a question asked of the applicant earlier about the importance of the house as a historic structure, Kathy Scott spoke to the history of the owners and the property and the perspective that it’s the gateway to the village historic district and the national landmark district and a model for other houses up and down Main Street. Mr. Sorenson asked Ms. Scott what is lost, if the Raynor’s proposal is approved, other than the current location, given we still have the history, the structure and the distinguishing elements of the house. To Ms. Scott’s assertion that the structure’s status as a contributing element to the National Historic District would be diminished, Mr. Sorenson asked to see evidence of this in the regulations or guidelines, and that it was not enough that the issue was discussed. Ms. Scott replied that the control is local and Harrisville has to decide how important it is. Mr. Sorenson noted that this gets back to differences of opinion in towns and legal matters and that the remedy for being able to enforce a group’s opinion is by rewriting the regulations. He acknowledged the HDC’s discussions about addressing their regulations and Ms. Scott replied that it can’t be done in the middle of this process.
Ms. Scott then reiterated that the HDC voted 3-2 that the application did not meet the current guidelines but that her own opinion is the proposal could work with modifications to what she sees as modern alterations. Mr. Sorenson asked her to imagine the Raynors’ reaction to having to respond to yet another request from the HDC and commented that the suggestion at the end of the June 27 meeting that they could start all over again with a new application was infuriating given the length of the process to date. Ms. Scott returned to the importance of the historic district to the town and the mandate of the HDC to protect it and their desire for a solution that they feel is more historically appropriate. She emphasized again the importance of the district to the town and its uniqueness beyond the town and nationally, and expressed the concern about chipping away at that part of the town which is treasured.
Mr. Jacobs asked about the word “modern” and questioned the credibility of that standard, asking if it just meant something different from what existed in the old days. Mr. Sorenson added it’s the same house with the same finishes, the differences being the addition of a garage and, as the Raynors noted and exhibited with photographs, such a garage exists just down the road that was allowed, along with others in the village. Mr. Sorenson added that it’s a big historic landmark district in terms of all the elements that come into it, and that the question is how important is keeping one house exactly as it is right now to the fabric of the historic landmark district. He suggested there is room for disagreement on that. Ms. Scott responded to the comment about the garages that most predated the regulations and offered history of garages in the area.
Mr. Sorenson asked if anyone from the board had any more questions for the HDC or for Mr. Kossayda or Mr. Raynor. In response to Kathy Scott’s point about the garages, Mr. Sorenson stated everything reverts back to standard #9 when you talk about modern and garages and that the reason there weren’t garages was there were no cars and no barns or stables before horses and that we have to realize that life changes.
Rex Baker asked the HDC about two fairly recent additions and alterations in town and how it reconciles these with its positon here: First, the barn that became the mixed-use Eagle Hall that has many windows and French doors on the back; and 2) Mr. Raley’s substantial garage on Island Street that’s four feet taller than the original structure and has windows that are far too large. Ms. Scott stated that these properties were discussed and that, in the case of the Raley’s, it originally was three houses and the appearance of separate buildings is retained. She also acknowledged the extensive discussion when Eagle Hall was renovated and stated the French doors in the back are not visible to the general public and that such allowances are made for the backs of structures. Mr. Baker noted that substantial changes were made under the ownership of Historic Harrisville, changes that did not reflect its history or historic use.
Mr. Kossayda wished to add that there was agreement on six of the standards and mixed opinion on the other four. He also read an email from Doug Walker to HDC members, written prior to the June 27 meeting, discussing strategy for addressing these standards in order to cover themselves should the matter end up in court. Mr. Kossayda asserted that the application was never about the elements or guidelines but about stopping the relocation of the structure.
At approximately 9:20 pm, Hal Grant opened the discussion to the public. Mr. Sorenson noted that the ZBA had received, read and considered the letters submitted and acknowledged that attendees were present who had expressed views at previous meetings. He asked comments to be confined to the discussion that had just occurred and requested that they be stated succinctly. Mr. Jacobs further requested that all questions be directed to the Chair, and further discussion by the board confirmed the appropriate rules of procedure for this portion of the meeting.
Andrea Hodson began with a question for the board or Mr. Kossayda that the proposal was about more than just the moving of the house. Mr. Kossayda stated the plans speak for themselves and, though the major sticking point for the HDC was the relocation, it was about more than just moving the house. Mr. Sorenson clarified that the prior two plus hours of discussion surrounded the design elements and whether or not they met the guidelines. He acknowledged that the move itself remained a divisive and contentious point.
Rex Baker wondered about the recommendation of the HDC for an infill to attach the house to the barn, which would entail a much bigger addition than what was proposed and it would still be all attached.
Seth Farmer asked Mr. Kossayda if he felt all HDC members were very familiar with the ten guidelines discussed that evening, and asked how familiar were they? He added he felt the first guideline about relocation was the most important and that’s why it’s first, and that they proceed in a logical order. The Chair moved to the next speaker.
Charles Michal spoke as an architect, resident and former Selectman and asked for the ten standards to be displayed on thescreen. He then addressed the board regarding his experience with the HDC and historic properties in the district, first noting through his experience the truth of the expression that beauty is in the eye of the beholder and second noting that design by committee is about the worst way to design. Mr. Michal was a selectman during Historic Harrisville’s application to renovate Eagle Hall, and that it was HHI that proposed a significant renovation. During the process, Mr. Michal explained, he raised design questions and proposals by HHI relative to standards 2, 5 and 6, asking why HHI, when it had other options, chose either to remove important historical features (the stable door), to leave previous alterations that could have been removed thereby restoring original integrity to the structure or to add sliding glass doors, Mr. Michal noted HHI’s response was that “Nothing prevents us from adapting a building to the contemporary needs of its current use.” Mr. Michal applauded the work of Historic Harrisville and their passion for what makes Harrisville great, and acknowledged the great debt owed to Historic Harrisville for its dedicated and generous custodianship of the larger buildings and their role in making the town what it is. But Mr. Michal urged the town to allow private property owners to make changes that suit their lifestyle and to beware of projecting group subjective opinion on aesthetics that interferes with people’s ability to keep and maintain property. He also wondered where all the concern was from the HDC when other barns in the district were converted to living space.
Chick Colony spoke to address Mr. Michal’s comments, responding that the barn door at Eagle Hall was long gone and that it was a salvage operation, at risk of not being savable but that HHI decided to save it. He also stated that all the openings were already there. Mr. Michal disagreed. Mr. Colony then stated it was the Raynors who continually held things up by proposing different plans, not the HDC. He agreed with Mr. Michal’s point that the standards are subjective. Regarding guideline #9 about contemporary alterations or designs, again he agreed that the language was subjective but argued that the HDC did the best it could, especially since it faced an applicant and a lawyer instead of an applicant and an architect. Mr. Colony asked if the ZBA could overturn the HDC’s subjective decision because the ZBA doesn’t have the same subjective opinion. Mr. Sorenson replied that this was called de novo review, meaning the ZBA can substitute its judgment for the HDC. He added he wished it weren’t true, but it’s the law.
Mr. Raynor wished to address Mr. Colony’s allegations regarding the delay. He reviewed the design creation process and the proposals submitted to the HDC throughout proposing the house in different locations. Mr. Raynor was led to believe by the HDC that it was a work in progress and responded throughout to the HDC’s concerns in an attempt to work with them, not change the game as alleged, to form a design that worked for everybody. Mr. Kossayda added that the applicant continually brought plans to work with the HDC and, if they changed, it was because the Raynors were attempting to change them to the HDC’s liking. Mr. Kossayda added the process didn’t get tense because of his presence, but because the HDC changed its mind.
Kathy Scott respectfully disagreed, feeling an architect’s presence would have helped ease the tension and possibly circumvented some of the problems along the way. She didn’t feel it was the HDC’s job to design.
Mr. Raynor read the motion of April 10 allowing approval with design conditions, citing that as the basis for their feeling they were working together with the HDC.
Kathleen Hamon asked Mr. Kossayda if the plan presented that evening was the plan going forward, given the applicant’s stated willingness to enact the modifications requested, though not voted on, at the June 27 meeting. Mr. Kossayda responded that the plan submitted that night was the plan moving forward because the applicant was not bringing another plan back to the HDC, and because the applicant feels it was predetermined that the plan would be shot down.
Mr. Wrigley, attorney for Historic Harrisville, spoke in defense of the HDC and its intense effort to work in good faith, as well as the struggle of Erin Hammerstedt and other HHI members to work in good faith. His own opinion was the building shouldn’t be moved unless threatened and that the choice to live in a historic district involves the decision to live with history.
Jay Jacobs noted Mr. Wrigley’s concern about an 80-foot relocation but not the HDC’s procedural errors. Mr. Wrigley responded that April 10 was wrong but not because of secret meetings but because the HDC was bending over backwards trying to help someone. Mr. Sorenson offered that he had little doubt that people were operating in good faith, particularly prior to April 10, and that Mr. Kossayda has doubts because he had documents provided under the Freedom of Records Information Act that shows repeated private consultations between Erin Hammerstedt and other individual members of the HDC that were not public meetings and should have been. He continued that there were distributions of documents from Ms. Hammerstedt to the HDC that should have been made public and should have been filed publicly and distributed to the Raynors. Mr. Sorenson further stated that the Raynors would show up at a meeting where the HDC was dealing with a record that had never been disclosed to them, behavior which is illegal and not a technicality, violating ex parte contacts with an adjudicatory body, violating public law requirements for public meetings and it was repeated.
Erin Hammerstedt then spoke, acknowledging she had provided advice and technical assistance as she feels that is her job in any matters of historic preservation. She reviewed her discussions with Mr. Raynor at the beginning of the process, providing him with the same documents she provided the HDC, sharing the requirements for moving an historic building and suggesting strategy, advising him how to assess a character defining feature. She claimed she was giving everyone the same information that was available publicly and on the internet. Mr. Sorenson responded that the path to go down is the legal one and that with a quasi- adjudicatory body, like the HDC and ZBA, if decisions are going to be made, and programs and applications are going to be discussed, it has to be in a public meeting. Mr. Sorenson cited the documents available showing evidence of communication with her and Doug Walker or her and Kathy Scott. Ms. Hammerstedt explained that she works for a private non-profit whose mission is historic preservation and that it is her job to protect the historic village and provide information to that end. Mr. Sorenson explained that the issue is providing information in a public context. When asked what information didn’t get to the applicant, that it was provided at a handout at the meetings, Mr. Sorenson mentioned the very thick file of communications and meetings that occurred with no indication the Raynors ever received them or knew about them. Even if the Raynors did, he added, you’re not supposed to meet with a public body privately.
Mr. Sorenson clarified that one issue is the issue of public meetings and the second is that it’s not proper for individuals to submit materials regarding an application to a body, like the ZBA or HDC, without those documents being publicly disclosed to the applicant and to the members of the public. Questions remain about how information got primarily from Ms. Hammerstedt to the HDC and did the Raynors get that same information at the time the HDC did. Mr. Sorenson further explained that it’s not enough that the Raynors find out about it at a meeting on April 17; the applicant needs to prepare in advance. He added the same issue occurred today. The ZBA can’t respond on the spot to the multiple issues we get without having advanced notice of what is going to be submitted.
Ms. Hammerstedt stated there was no requirement in the notice that HHI has to provide documents in advance. Mr. Sorenson replied that state law requires the documents have to be provided in advance to a public agency and that HHI isn’t supposed to be having private, ex parte conversations. HHI is an interested party, a status which makes HHI very important but also very important to know what public input that interested party is giving to the HDC. Ms Hammerstedt stated she wasn’t aware of these requirements.
Kathy Scott commented that the discussion pointed to dysfunction and the lack of understanding and education by all parties on these matters, but requested that the issue be set aside for the time being to address the issues at hand with the application. Jay Jacobs expressed frustration that a 4-month member of the Select Board wouldn’t know the regulations under 91-A and, regarding HHI’s emails, didn’t understand how email discussions of how certain board members were going to vote fell into the category of technical advice. Mr. Sorenson agreed the discussion should be set aside, but that it may show up in court and, if that is the next step, it is likely to show up again. All agreed it was important for the future.
Noel Greiner spoke to clarify that he was not at the June 26 meeting and that the first time he saw any plans was on June 27. Mr. Kossayda read aloud the email thread between members of the HDC and HHI attempting to schedule a June 26 meeting, pointing out Mr. Greiner’s correct alarm at the improper communication and noticing procedures and the fact that his client was never made aware of this meeting until June 27. Mr. Kossayda also cited earlier emails from April on the merits of the application and the scheduling and occurrence of unnoticed meetings. (Exhibit D in Mr. Kossayda’s appeal.) Finally Mr. Kossayda noted that HHI is represented by counsel and that it’s not the ZBA’s role to educate them on proper notification, meeting and appeal procedures.
Doug Walker spoke to address the meeting of June 26, stating it was properly posted and had a simple agenda. Mr. Sorenson responded that the meeting shouldn’t have happened at all as it involved the gathering of a public board with a private individual to discuss board matters. Mr. Sorenson added that, just because there were only two board members present plus Erin, it should have been held as a public meeting and, when held, she shouldn’t have been there and the Raynors should have known about it. As the minutes reflected, the application was discussed. Mr. Walker understood that there was precedent for a procedural workshop session. He subsequently apologized to the town for any unknowing wrongdoing and for any procedural mistakes along the way, stating he and the HDC did their best in a huge situation into which they were thrown and for which they were unprepared and uneducated, and stated it was on the ZBA now if it wanted to ignore the importance of the historic and landmark districts.
Additional residents spoke in favor of, or against, the application. Some expressed dismay at the process and the seeming inappropriateness of contacts and influence; some expressed frustration at what they felt was a lack of understanding of, or application of, the regulations and standards related to the historic district or the Master Plan; debate occurred over examples of other structures, or parts of structures, that had been moved, or whether this would be the first, and how changes in the road and traffic patterns necessitate changes once thought unthinkable because of safety concerns for owners and their families.
Kathy Bollerud disagreed that HHI was in any way pulling strings or had any knowledge about what would happen on June 27. She also expressed concern that the ZBA did not have adequate knowledge of, or hadn’t given adequate consideration to, and doesn’t have any interest in the historic standards, and will vote on them anyway. She hoped the board would go carefully.
In confirming which plans were being addressed, Kathy Scott noted that the plans before the ZBA that night were dated June 20 and were different from those discussed by the HDC in prior meetings when design elements were discussed. The vote of the HDC on June 27 related to these June 20 plans.
At approximately 10:30 pm, Hal Grant closed the public comment portion of the meeting. Mr. Sorenson asked Mr. Kossayda, going back to the reasons discussed at the end of the June 27 meeting as to objections expressed by at least some members of the HDC, if the applicant was committed to the plan just reviewed, which would have rear glass doors facing the lake, dormers on the barn, windows in the barn, windows in the barn cupola, sliding doors behind the barn doors, garage doors and six over six in all windows. Mr. Raynor asked to go through the elements one by one which was done as follows:
Rear glass doors in the barn facing the lake, top and bottom– The applicants agreed they are committed;
Gabled dormers on the barn– The applicants agreed to that modification;
Windows in the barn and in the barn cupola– The applicants conceded that they would not install a window in the cupola but instead a louvered vent, and they agreed to scale down the size of the proposed windows in the barn to match existing barn windows;
Sliding doors behind the barn door– The plan proposes sliding glass doors behind the existing barn door, which will remain;
Garage doors– The garage doors will remain facing forward as set forth in the plans and agreed to by the HDC;
Main house windows– The applicant confirmed the existing windows in the main house will remain and will remain six over six. They added that the plans before the ZBA will be modified to reflect this, and that the note on this plan stating they will be replaced is not correct.
Mr. Sorenson began by saying the ZBA does not welcome a de novo review of an HDC matter, adding that, while it is a new matter for the ZBA, members have studied the record as well as they could, a record that includes submissions by Historic Harrisville, HDC, and the Raynors. The ZBA’s legal task is to revisit the discussion it had when the ZBA went point by point through the guidelines, asking both HDC and the applicant to address those topics and guidelines. Mr. Sorenson’s view is that the answers to those questions convinced him that the HDC did not make the right decision on June 27, for the reasons discussed in the record under each of those guidelines and points.
Thus, Mr. Sorenson moved that the ZBA, pursuant to Article 11.2.2 and the HDC Regulations, Guidelines, and Rules adopted in March 1969, grant the Raynor’s request to overturn the HDC, in addition suggesting conditions and, of those conditions, the dormers should be downscaled to the gabled dormers, the sliding doors behind the barn doors can remain, the garage doors can remain, the existing windows on the house can remain, the proposed windows for the barn can remain, and the proposed window in the barn cupola should be changed to a louvered vent.Rex Baker seconded.
The board briefly addressed two additional matters as follows:
Scott Stone – Mr. Stone requested clarification regarding subdividing on Class VI roads, stating he may have to come before the ZBA for a variance. The board recommended he get on the agenda for its August meeting and bring his application and accompanying documentation. They also recommend he review the criteria necessary for a variance, particularly the unnecessary hardship criteria.
William Raynor – Mr. Raynor presented a question about acquiring the necessary frontage to obtain the needed right of way to subdivide his property. The issue of the regulations pertaining to backlots arose and the ability to further subdivide. The board and Mr. Raynor will research this further.
The meeting adjourned at 10:50 pm.