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Case #5/13/03–1 — Request for Reconsideration
On May 13, 2003, the Town of Wilton Zoning Board of Adjustment denied Corinne Blagbrough’s appeal of the issuance of a building permit to Ronald Shattuck, d/b/a Shattuck Homes, LLC, to construct a single-family residence on Lot A–21–2, Burton Highway. On June 10, Mrs. Blagbrough requested that the Zoning Board reconsider its decision.
Having considered the issues raised by Mrs. Blagbrough in her request for reconsideration, we find no reason to believe that our original decision was mistaken, and no offer of additional evidence which would change our decision. The Zoning Board therefore denies the request for a rehearing and reaffirms its May 13 denial of the appeal.
We reiterate the Zoning Board’s statutory authority and limitations in considering this appeal. The Zoning Board’s authority to hear the appeal of the decision of the Building Inspector arises from RSA 674:33, I(a), and RSA 676:5, II(b), and from Article VII, B-1(a) of the Wilton Code for Building and Sanitation. The RSAs authorize the ZBA to “hear and decide appeals if it is alleged that there is error in any order, decision, or determination made by an administrative official in the enforcement of [the] zoning ordinance,” where a “decision” involves construction, interpretation, or application of the terms of the ordinance, but does not include a discretionary decision to commence enforcement proceedings. The Building Code authorizes the Building Code Board of Appeals to “determine whether the decisions of the building Inspector are in conformity with the provisions of [the Building Code], and to interpret the meaning of the code in cases of uncertainty.”
In short, the Zoning Board’s authority is limited to the interpretation and application of the Zoning Ordinance and Building Code, as applied to the issuance of the building permit, and does not extend to the consideration of state or federal laws or regulations, nor of any other Town regulations (including subdivision standards, road standards, etc.), nor to the application and enforcement of other aspects of the Zoning Ordinance. In particular, the standards set by RSA 676:13 for the actions of Building Inspectors are not a part of the Building Code, and their application, interpretation, and enforcement are outside the jurisdiction of the Zoning Board.
We observe that building permits are applicable only to buildings (Article II). The standards in the Building Code for the issuance of a building permit are quite perfunctory. The critical decisions of the Building Inspector arise in the issuance of a Certificate of Occupancy rather than a building permit (Article II, H). The Building Code does not regulate roads or driveways. (This is the domain of the Town Road Agent.) Septic system regulations in the Building Code are nominal (Article IV).
We reiterate the observation from our original decision, that challenges to the subdivision approval for Lot A–21 have no place in this appeal. First, most of the issues raised with regard to the subdivision approval are outside the jurisdiction of the Zoning Board, and the deadline for appealing the subdivision approval on those grounds expired in July 2002 (RSA 677:15). “When a planning board decision is based upon both zoning and planning issues, a party aggrieved by both the zoning and planning aspects of that decision must follow the respective statutory procedures for appellate review of zoning and planning issues in order to preserve its rights. (Route 12 Books and Video v. Town of Troy, decided by the N.H. Supreme Court June 9, 2003, citing Hoffman v. Town of Gilford, 147 N.H. 87–88.) Second, Mrs. Blagbrough appealed the subdivision approval to the Zoning Board in 2002, the Zoning Board denied the appeal and upheld the subdivision, and the Zoning Board decision was appealed to and sustained in Superior Court. Therefore, Mrs. Blagbrough is barred by res judicata from a subsequent challenge to the same decision before the Zoning Board. Finally, even if the subdivision approval were invalid, there would be no block to the construction of one single-family residence on the unsubdivided lot A–21.
We would like to address Mrs. Blagbrough’s claim that she was denied a fair hearing because the Zoning Board chairperson, Neil Faiman, “had already written the decision prior to the commencement of the 7:30 p.m. meeting without first hearing my appeal in public.” The Zoning Board finds that:
- Mrs. Blagbrough’s appeal to the Zoning Board included a six-page letter detailing her objections to the issuance of the building permit.
- Mr. Faiman and other members of the Zoning Board studied Mrs. Blagbrough’s letter carefully prior to the meeting.
- Mr. Faiman’s reading of the appeal letter led him to the conclusion that none of the issues raised in it would justify granting the appeal. Because of the length of the appeal letter and the number of issues raised, he chose to record his conclusions in writing, which he did in the form of a draft decision notice.
- Mr. Faiman did not share his conclusions with the other members of the Board or inform them that he had prepared written conclusions until after the completion of the public hearing.
- Mrs. Blagbrough’s oral presentation at the public hearing was simply a summary of the issues raised in her appeal letter. No new issues or arguments were raised at the hearing. The only evidence presented was in connection with peripheral issues that the Zoning Board agreed were outside their jurisdiction.
- Mr. Faiman therefore submitted his draft decision notice to the Zoning Board at the conclusion of the public hearing. After discussion and consideration, and some minor amendments, the Board members unanimously agreed that the suggested decision was accurate and appropriate, and was consistent with their own conclusions.
The Board therefore holds that Mr. Faiman’s preparation of written comments on the letter of appeal in the form of a draft notice of decision did not show prejudgment, did not indicate an unwillingness to hear and weigh evidence, and was not contrary to the spirit of a fair and open hearing. The Board agrees that the final notice of decision, as published, accurately represents the unanimous conclusion that was reached by each of the Board members based upon the arguments, issues, and evidence that were presented in the letter of appeal and in the May 13 public hearing.
Finally, in response to Mrs. Blagbrough’s claim that Mr. Faiman should have been disqualified from participating in the hearing because he had recused himself from her appeal of the Planning Board subdivision approval in July 2002, the Board observes that Mr. Faiman recused himself from the hearing on that appeal because he had participated as a Planning Board member in the subdivision approval, and would have had a conflict of interest sitting on an appeal of a decision which he had participated in. That appeal has been settled, and the subdivision approval is no longer in legitimate dispute before the Zoning Board. The issuance of the building permit is a separate and distinct issue, involving a different Town official, so Mr. Faiman had no conflict of interest in this new appeal and no reason not to participate in its decision.