The Town of Harrisville Zoning Board of Adjustment held a public meeting on Wednesday, August 1, 2018 at the Town Offices located at 705 Chesham Road.
Members present: Charles Sorenson, Vice-Chairman; Jay Jacobs, Selectman; Patrick Gagne; Rex Baker; Mary Ann Noyer, Alternate; Pegg Monahan, Alternate
Members absent: Hal Grant, Chairman; Jeffrey Trudelle
Members of the public: Jay Raynor (applicant); Adam Kossayda (attorney for applicant); Shane Long; Ann Colony; Jonathan Miner; Patricia Colony; Erin Hammerstedt; Chick Colony; Patricia McCarthy; Doug McCarthy; Noel Greiner; Tom Hamon; Kathy Bollerud; Barry Heiniluoma; Kathleen Heiniluoma; Winston Sims; Mike Wilder; Dorothy Grant; William Raynor; Brice Raynor; Kathy Scott; Don Scott; Lida Stinchfield; John Cucchi; Giovanni Cucchi; Anne Cucchi; Seth Farmer; Leslie Voiers; Sam Banyatsky; Nick Colony
Charles Sorenson opened the meeting at 7:05 pm. He explained that the meeting was a reconsideration, limited in scope, and focused on the conditions the ZBA felt should be met for approval of the project at 3 Main Street. It arose out of issues raised by the Building Inspector, as well as a letter filed by Historic Harrisville, following the ZBA meeting of July 18. The ZBA felt the meeting should occur to address some of the issues, but issues that were not related to the decision that the project should go forward.
Mr. Sorenson then outlined the procedures for the meeting, typical for all ZBA meetings. The applicant or his representative would be asked to address their response to the conditions set forth at the July 18 meeting and what is different about the plans since the June 20thplan filing. Questions from the board would follow, after which the HDC would be invited to respond. That portion of the process would be closed to the public, after which any questions from the public should be directed to Mr. Sorenson, who would forward them if appropriate. Questions or comments from supporters of the proposal would go first, followed by questions or comments from those opposed.
Minutes of July 18, 2018
Jay Jacobs moved to approve the minutes of July 18. Rex Baker seconded. All voted in favor. Mr. Sorenson noted that the conditions placed on the applicant as part of the decision would possibly be amended.
Final design plans for 3 Main Street
The applicant was asked to address what changes were made to the final plans submitted following the July 18 ZBA meeting, and how the changes addressed the conditions laid out as a requirement of ZBA approval and differed from the plans submitted to the Historic District Commission.
When asked by Adam Kossayda to clarify if this was being treated as a Motion for Rehearing, Mr. Sorenson replied that it was not a motion; that it was a sua sponte board decision, meaning of the board’s own will. He added that the board is allowed under the law, within 30 days, to either clarify or reconsider its action, and that this was being done based on the board’s own concerns about the matter, and to address limited aspects.
Mr. Kossayda then spoke to the three major changes to the current design based on the ZBA’s requests: First, the previously proposed shed dormers on the barn were scaled down to gabled dormers, containing one window instead of two; second, the barn cupola now has louvered vents as opposed to glass windows which were part of the previous rendition; and, third, the plans now reflect that the existing windows will remain (see page A.2.0 of the plans) with the house when it is moved. Other aspects of the motion, including the sliding doors behind the barn door which were approved, remain in the plans. In addition, the windows in the barn remain as previously laid out.
Mr. Kossayda added that additional changes reflected in the plans include that the existing angled ell/shed will remain on its foundation, which may need some repair, with a single, double-hung, six over six window and siding to match the existing siding. The location for the septic also appears on the final plans, in the southeast corner of the property. When asked by Mr. Sorenson the distance of the septic from the water, Mr. Raynor responded that the house is 175 feet from the water and, thus, the distance is at least that. The septic designer will file the application with the state DES. Mr. Kossayda added that these were full building plans, with more detail than appeared in the previous submission, but that the layout, location and elevations are the same as previously submitted. Jay Raynor noted that the double window depicted in the previous version is now a single window on the side of the barn to match existing.
Comparing Mr. Kossayda’s description to the conditions highlighted by the ZBA at its last meeting and the issues raised by the HDC in their vote to deny the application, Mr. Sorenson reviewed that the barn dormers should be scaled down, which appeared to be addressed. They included the garage doors facing the front, which received some objection by the HDC, but which the ZBA believed should be allowed. The existing windows should remain, which the applicant’s current plans show. The HDC also objected to a window in the barn cupola, which the ZBA agreed should be changed to a louvered vent, and is, according to the current plans.
Mr. Sorenson then opened the matter to the board. As the board had no additional questions, Mr. Sorenson asked the HDC for its comments. Kathy Scott asked if the granite veneer on the foundation would extend beyond the main part of the house to the wing and, separately, if the brick from the original chimney continued to line the basement, would the Raynors consider documenting them or pulling some out to have the brick evaluated for age? No comments ensued on this latter matter. Regarding the granite veneer, Mr. Raynor noted that the foundation for that part of the house is not visible underneath but agreed that the portions of the foundation that are visible once the house is moved would have a granite veneer. The board confirmed that the plans show that the granite façade would continue around the corner of the house. Mr. Kossayda referred to page A.2.0 of the plans, and the notes, depicting that the granite face continues on all 3 sides of the main house to match existing.
Patrick Gagne asked if the existing skylight on the back of the house was acceptable to the HDC. Ms. Scott responded that the HDC had discussed design concerns in the back of the house and what the HDC felt wasn’t appropriate for the district but, given that the ZBA felt differently and accepted the proposed two-story window, the HDC didn’t push the issue of a skylight. Mr. Raynor noted there is a skylight existing in the ell. Mr. Sorenson commented that the HDC hadn’t referred to those windows as grounds for denying the application. He then asked if members of the ZBA had issues with the size of the windows in the rear of the structure and asked the applicant what vegetation exists between the rear of the house and the water. Jay Raynor stated there was an approximately 100’ x 75’ swath of trees and that the house is 175 feet from the water. Rex Baker shared with the board and public an aerial photograph from Google maps from last week depicting the existing vegetation, confirming the assessed quantity and denseness.
Following a question from Kathy Scott about the applicant’s plans to cut any vegetation, Mr. Sorenson responded that he didn’t think it was either the HDC’s or the ZBA’s job to micromanage every aspect of the project and that the boards at some point have to accept that the applicant will abide by the law. To Ms. Scott’s additional concern that the Raynors may create a new viewshed by removing branches or lowering the height of vegetation, Mr. Sorenson asked what historic district guidelines that would run afoul of. Ms. Scott referred back to the windows and the illumination created without a divide in the windows. Mr. Sorenson referred to the HDC’s minutes and the comments made to the extent that the concern was focused on the front appearance and the appearance from the road as opposed to plans for the rear of properties and that other homes in the village were cited for their larger windows and more extensive light in the back. Ms. Scott responded that that related to what was and wasn’t visible, citing the backs of the Peanut Row houses as an example.
Public comment in favor
Mr. Sorenson then asked for comments from the public in support of the proposal. Dorothy Grant, a neighbor of the Raynors, stated they were strongly in favor, feeling it’s an appropriate continued use of the house, and appreciated the revised detailed plans. Pat McCarthy, resident across from 3 Main Street, stated her belief that the property would look beautiful and will only be enhanced, and that she sees no risk even if some vegetation is removed, given the distance of the house from the water. William Raynor spoke to the prospective improvement to the property and tax revenue enhancement for the town.
Doug McCarthy spoke out in favor and asked the ZBA to constrict additional comments to what was supposed to be discussed. Mr. Sorenson then reiterated to all that, if he didn’t make that clear, the discussion is limited to the questions raised by the ZBA at its last meeting with regard to conditions, and any questions that could arise from this particular plan as to those details. He added that this was not a rehearing of the whole application and, thus, comments should be limited to what is in front of the board now.
Public comment opposed
Ann Colony objected to the limiting of the comments, stating the last meeting was supposed to be a de novo hearing and the ZBA limited comments there as well. Mr. Sorenson took umbrage with the remark, replying that he did not limit comment. Ms. Colony added that the ZBA hadn’t allowed Erin Hammerstedt to conclude her remarks and that Historic Harrisville is here to protect the historic district and Mr. Sorenson didn’t allow her to offer any information on this. Ms. Colony added that, in its capacity now, the ZBA stands in the position of the HDC, and she felt the ZBA was failing in its responsibility to protect the historic district’s assets. She added that the Town had voted for the HDC to protect the assets.
Jay Jacobs asked to respond, commenting that, apparently, Ms. Colony didn’t believe the HDC’s deliberations were extremely flawed. Ms. Colony replied she believes there were flaws on both sides. Mr. Jacobs added that the ZBA did not wish to be handling the matter and that, if the HDC had properly carried out its responsibilities, the meeting tonight wouldn’t be occurring.
Returning to the matter of the last meeting, Mr. Sorenson explained that it was an appeal of the final meeting of the HDC on June 27. He added that some of the issues Ms. Hammerstedt appeared to want to revisit included issues that had been laid to rest by the ZBA at a prior meeting, including issues that had been raised on the rehearing request by Historic Harrisville, which was denied at that meeting. Because the rehearing was denied, the ZBA wasn’t going back over what was already decided. Mr. Sorenson believes the ZBA properly looked at the basis for the HDC’s decision and that the only available record of that decision is the record reflected in the HDC’s June 27 minutes.
As far as the claim that the ZBA did not take into account the HDC’s criteria, Mr. Sorenson stated that the ZBA took a great deal of time at that meeting going through point by point which were the applicable criteria and why the HDC thought they were not met. The ZBA concluded, after listening to the Raynor’s presentation, and listening to the HDC and Ms. Hammerstedt with regard to those particular issues, that the HDC did not support its conclusions that the project violated the guidelines adopted by the town in 1969.
Discussion ensued about the definition of a de novo hearing and what it entails, with Ms. Colony continuing to state that the ZBA limited the subject matter and should have gone back to the beginning. Mr. Sorenson referred to his repeated explanations at that meeting of the term de novo, adding that anyone objecting to the application of the term has a right to appeal the ZBA’s decision. Mr. Sorenson reiterated that de novo hearings do not mean you start over from the beginning; it means you examine the record in a case, and the evidence submitted, and then ask the question if you agree with the judgment on specific issues entered by the HDC. The ZBA doesn’t rehear the evidence; it examines what the HDC decided. The ZBA, he continued, spent much time considering what the HDC said was okay, and what it said was not okay, and it asked for any information that would add to that with regard to the issues of the HDC’s support for its conclusion. It had to be legally relevant information, and one of the ZBA’s conclusions was that much of what was being offered as support for the HDC’s position couldn’t legally have been adopted by the town because it didn’t exist at that time. He added that nothing in the existing regulations suggests that the town would go forever forward and change its regulations in step with guidelines from the Secretary of the Interior. Mr. Sorenson added that it’s the town’s job to look at the regulations in a proper fashion and decide if they’re adequate now and intend to do something different from our interpretation. He reiterated that this was not something the ZBA asked for, or takes lightly, and the ZBA has devoted a lot of time examining matters and acting in line with the constraints the board faces. If wrong, Mr. Sorenson stated, there is an avenue to correct it.
Erin Hammerstedt asked to quote the following from the NH Zoning Board Handbook, page II-28: The ZBA’s greatest fact finding challenge come when it hears an appeal to a decision of the Historic District Commission. Under RSA 677:17, all appeals of HDC decisions are heard by the ZBA as administrative appeals. Unlike other appeals, though, when hearing an appeal to an HDC decision, the ZBA is considering the historic district ordinance, not the zoning ordinance, and it’s conducted as a de novo review. In essence, it is as if the HDC did not make a decision and the ZBA is compelled to hear the entire case from its beginning to its end.
Mr. Sorenson responded that there is no question the ZBA considered the historic district ordinance and not the zoning ordinance, and that the beginning to the end of that particular case was the June 27 meeting, and not anything that preceded that. The ZBA had already turned down a rehearing that would have required de novo review of the previous decision. Mr. Sorenson further explained that, according to case law, de novo review means that the ZBA is not bound to follow what the HDC did; whereas, in a normal review, some deference is given to the lower committee’s fact finding. In a de novo review, the ZBA is allowed to ask for new evidence and consider what’s in the record and disagree with the conclusions, but it is not repeating the case over again.
When Ms. Hammerstedt stated, referring to the ZBA’s reaffirmation of the HDC’s original April 10 decision, that it seemed the ZBA was picking and choosing what it could consider, Mr. Sorenson responded that the issue of relocating the building was determined when the ZBA denied Historic Harrisville’s Motion for a Rehearing on that matter. And that ended the beginning of the case, taking us to the point when the HDC finally made a decision after the ZBA had ruled that the house could be moved. Ms. Hammerstedt stated Historic Harrisville wasn’t talking about its request for a rehearing, acknowledging that it was denied and they’ve moved forward. Mr. Sorenson disagreed that they were recognizing that the ZBA wasn’t rehearing that matter. He added that if HHI still wants to appeal it, that is doable to the Superior Court.
Patricia Colony offered that from her research of the definition of de novo review, according to the Cornell School of Law, it means going back to the beginning as if no one had ever heard of it before. She then raised a situation where, at the end of a previous meeting, their party was led to believe the meeting was over but then heard additional discussion going on in the meeting room, leading her to sense there was a cover up. Ms. Colony also raised the concern that she doesn’t always see in the minutes what she remembers having occurred or having been discussed, questioning whether Historic Harrisville is getting all the information correctly. The Recording Secretary noted that anyone attending a meeting who, upon review of the minutes, believes information was omitted or improperly presented can request a correction or propose an amendment. When asked which meeting Ms. Colony was referring to in terms of the alleged inappropriate discussion, she stated it was the May 30 ZBA meeting. Neither Mr. Kossayda nor any member of the ZBA recalled any situation where ex parte conversation occurred. Mr. Kossayda did remember saying he didn’t want to go back to the HDC, which Ms. Colony stated she remembered hearing. She then stated it was the last meeting, July 18, not May 30.
Kathy Bollerud spoke next, objecting to the application based on standard #1 because of moving the building, adding a building, the large windows and adding windows on the back of the barn which, she believes, are too large and will be visible from the pond. She didn’t feel the Google photo presented accurately reflects a portion of the back yard where there are no trees. She continued, stating she believed the ZBA, in believing Historic Harrisville inappropriately influenced the HDC, was confusing education with bias. To Ms. Bollerud’s request that her subsequent comments be entered into the record, Mr. Sorenson stated that Ms. Bollerud’s comments were outside the scope of the discussion and that the ZBA had discussed fully the nature of the HDC’s interactions with HHI. He also stated that this meeting was not about discussing the last meeting; it was about discussion of the conditions of approval of the Raynor’s property. Ms. Bollerud asked to comment on the way those conditions were established and the way that meeting was conducted. Mr. Sorenson explained that a ZBA meeting is not like other public meetings, like Town Meeting, but is limited in scope to specific issues and that, if parties feel an error was made in those decisions, an avenue is available to appeal those decisions.
Ms. Bollerud and Mr. Sorenson disagreed about whether or not HHI was allowed to talk about the standards at the last meeting and if expert opinion was allowed regarding standards and practices for historic preservation. Rex Baker noted that the ZBA reviewed the standards, point by point, and the board is restricted to the town regulations and what has been passed by the town. To Ms. Bollerud’s claim that that’s Mr. Baker’s interpretation, Mr. Baker responded that it’s the law. Ms. Bollerud continued, stating she believes the ZBA should have listened to expert opinion and requested that a statement be read into the record. The board disagreed with the appropriateness, and Mr. Sorenson noted that one of the things considered at that meeting was the record compiled by the HDC and the reasons for their actions, and that record supposedly includes the expert opinion that was provided repeatedly, both publicly and nonpublicly, to the HDC and that all this was in the record submitted by the HDC and its minutes and in the record submitted by Mr. Kossayda, following his request for a documents review, and the town was required under law to reveal all of the correspondence related to this. Mr. Sorenson stated that the correspondence itself was full of expert opinion. The ZBA had a view that, legally, it wasn’t something the board could consider at that point because it wasn’t part of the regulations adopted by the town in 1969 and that it shouldn’t be used to influence the strict, literal guidelines that the HDC is supposed to operate under.
When Ms. Bollerud stated that standard #1 related to moving a building was not considered, Mr. Sorenson again stated that that issue was off the table, further stating it appeared there was an effort to delay this application as long as possible and that there was no interest in getting to the merits of it but, instead, to do whatever is possible to stop it. Mr. Sorenson acknowledged that was a judgment, but one made on the record of the case and the efforts made to prolong the record. Ms. Bollerud wondered why a supposedly unbiased board would debate with people trying to give public testimony. Mr. Sorenson questioned the use of the word debate and said the alternative was the board would sit quietly and not respond. He didn’t understand how anyone could look at this record and not see it as an attempt to string it out as long as possible. Ms. Bollerud didn’t see any benefit to stringing it out. Mr. Sorenson then asked for the topic of the comments she requested to enter into the record.
Ms. Bollerud asked to address what Mr. Kossayda, at the last meeting, had called `biased expertise’ on the part of Historic Harrisville. Mr. Sorenson agreed but noted that the biased expertise referred to by Mr. Kossayda was not a basis for the ZBA’s decision. Rather, it was submitted as evidence and offered the ZBA insight into what the board determined were procedural irregularities, but that the decision wasn’t based on procedural irregularities because it couldn’t be.
Ms. Bollerud proceeded: “Like the law, medicine or any profession, historic preservation is a well-established professional field. Its members achieve professional status through extensive education and training. Erin Hammerstedt and the other preservationists who have written letters about 3 Main Street all have advanced degrees in historic preservation. They’ve studied it, they’ve worked in the field for years, they’re knowledgeable about what’s acceptable preservation practice and they’ve all reached the same conclusion. We believe that no preservationist or preservation architect would support moving this building or adding a garage. The ZBA has disregarded expert opinion by: first, not allowing expert testimony from Erin on the standards of preservation as they relate to this project in the last meeting; 2) by not considering the testimony of any other preservation experts in the meeting. Further, they’ve disregarded the first standard, that a building should not be moved, by not considering it at all. It appears the board selectively chooses which standards they want to apply. There was no preservation justification for this decision not to apply standard 1, especially in a purportedly de novo hearing. In fact, the ZBA did not consider preservation expertise standards or practices. This is a chilling decision for a community that embraces historic preservation in its Master Plan and for the people who have worked so hard to preserv it. This disregard of expertise would be like me doing surgery based on my familiarity with Gray’s Anatomy. Having seen the show doesn’t mean I know what I’m doing. The board’s failure to allow public or expert testimony on preservation standards suggests that the board was moved by personal concern for the family that we all like, rather than taking its role as acting in the shoes of the HDC and holding a fair and impartial de novo hearing based on the standards.”
Mr. Baker asked to respond. He noted that the ZBA went through the standards and the issue of the move was done and not part of what the ZBA was doing. The board was concerned about the HDC’s concerns and the Raynors submitted changes that were requested. Mr. Baker added that, looking at the minutes, the HDC approved the doors facing forward, the Raynors accommodated the request for louvered vents instead of a window, and, though the ZBA felt the large barn windows were acceptable and the HDC did not, Mr. Baker cited other large glass windows in the village, adding that the ZBA largely followed the HDC’s requests concerning windows.
Mr. Sorenson added that the ZBA applied the standards as it read them, noting that standard #1 referred to by both Ms. Bollerud and HHI is not standard #1 under the HDC Guidelines. He then read HDC standard #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. The disagreement in the discussion with the HDC at the last meeting, Mr. Sorenson noted, concerned the word minimal. Had the town adopted the language that Ms. Hammerstedt wanted to put forward, that you should never move a building unless it’s the last opportunity to save it, the ZBA would have been bound by that. But it wasn’t, which left the existing standards, whose flexible language leads reasonable people to differ about what they mean, without being ill-spirited, biased or anything else.
The 3-2 decision of the HDC, Mr. Sorenson noted, reflected that board’s own difference of opinion regarding the standards. He suggested if the HDC, HHI or anyone else wants stricter regulations, they should draft them and bring them before Town Meeting. He noted standard #9 in particular (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) as a key factor in the ZBA’s decision.
Ms. Hammerstedt raised her submission of the two sets of guidelines, from 1969 and the updated guidelines of the Secretary of the Interior, which, in her opinion, are substantively similar. Mr. Sorenson didn’t agree that the language hasn’t changed and that the Raynors had pointed out that the language in #9 had changed significantly. Mr. Sorenson emphasized that the filing by HHI was read and considered.
Chick Colony addressed Mr. Sorenson’s point about the perceived delay by accusing the Raynors of delaying, stating they hadn’t submitted their complete plans until June 27, and claiming they kept coming up with new plans and wouldn’t extend the 45-day deadline. Referring to the floor plans, Mr. Colony stated their so-called two car garage is a three or four-car garage and that that building alone is the second largest building ever to be proposed in the historic district; it’s entirely a new building, and the HDC never got a chance to ask itself about that until June 27, when three out of the five members voted that it was inappropriate for the historic district. Mr. Colony claimed the HDC never had a chance to review the matter in its entirety until then, and that the details are insignificant compared to the overall scope of the project. He reiterated the previous comment by Ms. Bollerud that there was no public input at the last ZBA meeting and, once the ZBA had its motion going, that was it. Mr. Sorenson noted that once the public portion of a meeting is closed, it’s closed.
Mr. Colony referenced his history in the historic district and his experience as a resident for over 50 years, and the overwhelming significance of this proposal. He then reviewed the evolution of the HDC’s approach to the application. Recently, he stated, homeowners in the historic district were asked about the proposal and Mr. Colony stated more than half opposed it and supported the HDC’s decision. Mr. Colony claimed he wasn’t sure the ZBA even knew where the historic district was, or why it’s an historic district, or what’s significant about it or why 3 Main Street is significant. He acknowledged that what the ZBA was doing was required by state law but he finds it appalling, and that Historic Harrisville needs to do some things about it; otherwise, why have an historic district, if there even is still an historic district. He finished by saying he hopes so, as the integrity of the district, and the property values, depend on it. He reiterated his belief that the ZBA’s decision wasn’t based on the benefit of any input.
Resident Tom Hamon found fault with the ZBA’s focus on the HDC’s process and claimed the ZBA took it to the extreme. Mr. Sorenson responded that the ZBA’s job is to apply the law as it understands it, and that is one of the things de novo review stands for. And the ZBA’s job is not to give deference to the HDC or to bend over backwards to accept what they said, but instead to look at the facts that they decided on and the reasons that they gave. Acknowledging that Mr. Colony had some good points, the ZBA was stuck with the case the HDC made and the ZBA’s notions of what the law requires. He added that the HDC standards need to be fixed but that it’s not the ZBA’s job to change them. Mr. Hamon continued, stating he felt the ZBA was hiding behind legalities as a rationale. Mr. Sorenson responded that two and a half hours of the last meeting were spent going, point by point, through the standards the HDC was to apply and asking the representatives of the HDC to explain why they came to the conclusion they did, and that’s not hiding behind the law; that’s applying the law as it’s written.
Seth Farmer asked to go on the record. He discussed collecting signatures of residents in the village historic district, over half of whom he claimed object to the ZBA’s decision of July 18. He expressed hope that a sequel to Factory Under the Elms wouldn’t include a chapter entitled “The loss of 3 Main Street.” Mr. Farmer then stated that, though the applicant made an attempt to meet the guidelines, the application in Mr. Farmer’s opinion, still violates standards #1 and 2. He added he believed it was irrelevant which guidelines were applied, whether from 1969 or current and that, under the HDC regulations, if only one of the guidelines wasn’t met, the application should be denied. He further stated that 3 Main Street is an example of a quintessential village farmhouse and lies within both the local historic district and the national historic landmark district. He cited guideline #1 of the HDC guidelines, focusing on the word `site’. He believes the project will alter the site. He ended by saying that respect for the town’s past and future necessitates that all follow the guidelines to protect Harrisville’s property values, history, legacy, model for preservation and, most importantly, integrity, and that it’s a responsibility to the villagers, the town, the state and the nation.
Commenting as a past HDC member, Don Scott wondered if the ZBA would address three elements that hadn’t been addressed. Mr. Sorenson stated that the purpose of the meeting was limited to dealing with the board’s final decision and conditions imposed. He reiterated that all the standards were reviewed and that the Raynors were required to address all of them. Further, he stated, the HDC had the opportunity to speak to all of them. The purpose of the meeting was not to revisit the case from the beginning.
Regarding Mr. Farmer’s comments, Mr. Sorenson noted he thought it was interesting that a majority of property owners were against the project. The ZBA listens to the majority of property when they come in to express their interests but, he added, this isn’t a democratic process. And it’s the purpose of the HDC to protect individual property rights in the face of community interest in historic preservation, which requires a balancing approach. He suggested that guideline # 9 suggests this, requiring that the board assess the values of the historic district and the values of that particular property, exactly as it is, compared to an individual’s property right to do more or less what they believe is reasonable with their property. Democracy plays a role in the right to take regulation change to the people and let the majority of the residents in the district vote in favor of new guidelines.
Mr. Scott stated his concern had to do with paint colors, exterior lighting and the view from the road, elements which he always reviewed for applications when he was a member of the HDC. He expressed concern about the view from the road, given the vegetation and that the main entrance off the street would now have to be from Nelson Road, too narrow unless vegetation is removed. Mr. Sorenson noted the comments in the HDC minutes discussing that the HDC wasn’t addressing either paint colors or lighting, which the ZBA took to mean that they weren’t relevant criteria.
Barry Heiniluoma asked Mr. Sorenson about the significance of an abutter. Mr. Sorenson noted that, as interested parties and having a direct interest, abutters can seek an appeal from the Superior Court, unlike the general public under New Hampshire law. Mr. Sorenson confirmed that the ZBA had received and reviewed Mr. Heiniluoma’s letter expressing concerns about the project, as well as letters from several others.
Mr. Colony asked Mr. Sorenson a procedural question regarding the HDC’s April 10 decision allowing the building to move with conditions, and if a board, like the HDC, has the ability to reconsider an earlier vote in light of new information. Mr. Sorenson replied that they do have the ability but that, procedurally, a board has to tell people that that’s what they’re doing. Mr. Sorenson explained that the main procedural flaw of the HDC between the time of its original decision and its May 15 reversal was that the meetings held were not noticed as rehearings, which would have given them a completely different complexion and put people on notice that things needed to be reconsidered, and that new information, made available to the applicant, needed to go into the record. Mr. Sorenson added that there appeared to be some sort of collaborative effort during that time to come to terms with what was being proposed. Had the HDC noticed a meeting as a rehearing, and had they stuck strictly to the reason for the rehearing and the guidelines they operated under, Mr. Sorenson stated he’d be surprised if the matter were where it is now. Both sides need a chance to fairly represent their positions. Mr. Sorenson further explained the importance of public filings to allow for such fair and timely notification and the opportunity for the applicant to prepare and adequately represent themselves. Kathy Scott subsequently stated the HDC would welcome an opportunity for further education on procedural matters.
Motion of the board
After closing the public hearing, Mr. Sorenson sought a motion from the board. Rex Baker then moved to accept the revised detailed plans as submitted by the Raynors with regard to 3 Main Street and that 3 Main Street will be built according to those plans. If there is a reason for a change in those plans given the current circumstances, the Raynors should return to the ZBA with regard to those changes. Motion seconded by Jay Jacobs. The board voted 5-0 in favor.
Mr. Sorenson added that the ZBA was required to issue a certificate of approval to the Building Inspector so that the Building Inspector could proceed, if he finds the conditions satisfactory, to issue the necessary permit. He further clarified that, if an appeal is filed with the Superior Court, that appeal does not stay the issuance of a building permit, should the Building Inspector find the plans satisfactory under code, and anyone wishing to file an appeal must also file a motion to the Superior Court to stay the decision of the ZBA pending the appeal.
Mr. Sorenson then announced the conclusion of the hearing on the Raynor application and thanked everyone for attending.
A motion to adjourn was made at 9:00 pm and unanimously approved.