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Case #5/13/03–1 — Decision
Corinne Blagbrough (Blagbrough) has appealed the decision of the Wilton Building Inspector, to grant a building permit to Ronald A. Shattuck, d/b/a Shattuck Homes LLC (Shattuck) for the construction of a single-family home on Lot A-–21–2, Burton Highway. For the reasons set forth below, we affirm the granting of the building permit.
History
In June 2002, the Wilton Planning Board approved the subdivision of Lot A–21 into two lots, A–21–1 and A–21–2. Blagbrough, as Trustee of the Blagbrough Family Realty Trust, owner of abutting lot A–22 appealed the subdivision approval to the Zoning Board for a variety of reasons. After considering the appeal in hearings on July 16 and August 13, the Zoning Board affirmed the subdivision approval. The Zoning Board reaffirmed its decision on August 23 in response to a request for reconsideration, and Blagbrough appealed to Hillsborough County Superior Court (docket number 02–E–0337)
On February 14, 2003, Shattuck applied for a building permit to construct a single-family home on Lot A–21–2. Blagbrough appealed the building permit application in accordance with Article VII of the Wilton Code for Building and Sanitation (WCBS) on February 27. The Wilton Building Inspector issued the building permit on February 28, and then suspended it at the direction of the Selectmen.
On March 11, the Wilton Town Meeting voted to amend the Wilton Zoning Ordinance to clarify some definitions which were at issue in Blagbrough’s appeal of the subdivision approval.
On March 28, the Building Inspector reissued the building permit.
On April 22, the Hillsborough County Superior Court decided Blagbrough’s appeal of the August 2002 Zoning Board decision in favor of the Town, ruling both that the appeal was moot in light of the March 2003 amendments to the Zoning Ordinance, and also that the Zoning Board had correctly interpreted the Ordinance as of August 2002.
On April 24, Blagbrough refiled her appeal of the issuance of the building permit. The present decision denies that appeal and affirms the issuance of the building pemit.
Jurisdiction
We treat Blagbrough’s appeal as a combined appeal of an administrative decision under RSA 674:33 and appeal of a decision of the Building Inspector under WCBS Article VII. Because the Selectmen have named the members of the Zoning Board to be the members of the Building Code Board of Appeals as well, we consider the appeal under the authority of RSA 674:33, I(a):
The zoning board of adjustment shall have the power to [h]ear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16
and RSA 674:5, II(b):
A “decision of the administrative officer” includes any decision involving construction, interpretation or application of the terms of the ordinance. It does not include a discretionary decision to commence formal or informal enforcement proceedings, but does include any construction, interpretation or application of the terms of the ordinance which is implicated in such enforcement proceedings.
and WCBS VII:B, 1(a):
The Board of Appeals shall have the [power and duty] … to determine whether the decisions of the Building Inspector are in conformity with the provisions of this Code, and to interpret the meaning of the Code in cases of uncertainty.
We will consider whether the appeal alleges that the issuance of the building permit in question is inconsistent with specific provisions of the Wilton Zoning Ordinance or the WCBS, and provides convincing evidence to support any such allegations.
Specific Issues
The subdivision approval
We find that all arguments pertaining to alleged errors in the subdivision plat or the subdivision approval process are without merit.
- Any such issues that were raised in the July 2002 appeal to the Zoning Board were settled by the August 2002 Zoning Board decision affirming the subdivision approval and by the April 2003 Superior Court decision upholding the Zoning Board decision.
- Consideration of any such issues that were not raised in the July 2002 appeal to the Zoning Board, but that could have been, is barred by res judicata, and also by the requirement of RSA 676:5 that “such appeal shall be taken within a reasonable time,” seven months having elapsed between the June 2002 subdivision approval and the February 2003 appeal.
- Consideration of any such issues that fall outside the jurisdiction of the Zoning Board is barred by RSA 677:15, I, which requires that decisions of the Planning Board be appealed to Superior Court within 30 days.
Private easements
Blagbrough alleges that her private easement rights are being violated by construction on the subdivided lots. Enforcement of private easements is a private matter between the parties to the easement, and is outside the jurisdiction of the Building Inspector or the Zoning Board.
Issues outside the Zoning Ordinance and Building Code
Blagbrough alleges violations of assorted local, state, and federal laws and regulations (for example, RSA 485-A and RSA 236) and various other issues such as driveway steepness, without claiming a specific violation of the Zoning Ordinance or the Building Code. All such issues are outside the jurisdiction of the Zoning Board (and also outside the jurisdiction of the Building Code Board of Appeals). As discussed above, the Boards’ authority to consider this appeal arises from RSA 674:33, RSA 676:5, and WCBS Article VII, and is limited to questions of conformity of the building permit with the Wilton Zoning Ordinance and the WCBS.
Blagbrough seeks to interpret the Saving Clause, Article 23 of the Zoning Ordinance, to bring these local, state, and federal laws and regulations within the jurisdiction of the Zoning Board. We disagree.
Article 23 provides that “If any section of this Ordinance is found to be in conflict with any other section of the Ordinance or with any local, state, or federal regulation, the more stringent standard shall apply.” This echoes RSA 676:14, which Blagbrough also cites: “Whenever a local land use ordinance is enacted or a regulation is adopted which differs from the authority of an existing ordinance or other regulation, the provision which imposes the greater restriction or higher standard shall be controlling.” The plain language of both the statute and the ordinance simply says that a provision of a zoning ordinance is not weakened by the existence of a weaker provision in some other law or regulation, nor can a provision of a zoning ordinance have the effect of weakening a stronger provision of some other law or regulation. Those other laws and regulations do not thereby become part of the Zoning Ordinance, nor do they become subject to interpretation by the Zoning Board.
Open-ended questions
Blagbrough’s appeal asks a number of questions — “Where is the documentation for a 25-year flood calculation?”, “Has the installation of drainage structures such as culverts been evaluated to ensure that the road has the ability to channel runoff based on slope, rainfall and amount of land area in acres needed to be drained?”, etc. These questions are accompanied neither by any evidence that the answer is in the negative, nor by any reference to a section of the Zoning Ordinance or the Building Code which be violated if the answer were in the negative.
As indicated above, our standard for considering the appeal is whether it alleges that the issuance of the building permit violated the Zoning Ordinance or the Building Code, and whether convincing evidence is provided to support such allegations. In the case of these questions, there is is no allegation of a specific violation, nor are any facts or evidence offered that would support such an allegation. Consequently, we disregard all such questions.
Building Code “section 5”
The appeal cites “section 5” (actually Paragraph A(5) of article III) of the WCBS and claims that the issuance of the permit is in violation of the Building Inspector’s responsibility to “review proposed developments to assure that all necessary permits have been applied for …”. However, this section is applicable only to “development and construction within A and A1–9 [special flood hazard areas] as identified on Flood Insurance Rate Maps… .” The appeal offers no evidence that the development and construction are located in a special flood hazard area, so this section is not applicable.
Conclusion
We find that all issues raised in the appeal are covered by one or more of the “Specific Issues” sections above. We have not been offered any evidence for any violation of the Zoning Ordinance or Building Code that would justify reversing the Building Inspector’s decision to issue the building permit. We therefore affirm the issuance of the building permit.