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September 15, 2014
|Board Members||Chairman Neil Faiman; members, Andy Hoar and Joanna Eckstrom and Alternates Bob Spear, John Jowders, and Paul Levesque.|
A MOTION was made by Mr. Hoar and Mr. Levesque to accept the minutes of August 12, 2014 as amended:
Voting: 6 ayes; motion carried unanimously.
Case # 3/11/14 NTV, LLC Rehearing
Mr. Faiman explained that the Wilton Board of Selectmen have requested, and the Board has granted, a rehearing of the NTV, LLC case within the specific scope of whether or not the building requires a building permit. He also reviewed the Board procedures.
John Griffith appeared before the Board and questioned Mr. Faiman's ability to be on the Board noting the Planning Board minutes of 1/8/14 when the Planning Board discussed modifying Article II of the Wilton Building Code after reviewing legal opinion.
Mr. Little noted that legal opinion was given as to whether or not the amendments conflicted with state statute.
Mr. Griffith suggested that Mr. Faiman has more knowledge then the Zoning Board Members as Mr. Faiman must have ben involved in an discussion in order to amend the code.
Mr. Faiman stated that he failed to see the relevance and Ms. Eckstrom noted, especially if the discussion is based on 2012 the Building Code.
Mr. Griffin withdrew his suggestion that Mr. Faiman should recuse himself.
Mr. Faiman explain that himself, Mr. Spear, Mr. Jowders, Ms. Eckstrom, and Mr. Hoar will be voting on the case this evening.
Silas Little, appeared before the Board for the Town of Wilton, and reviewed pertinent State statutes and the New Hampshire Building of 2009 noting that all buildings shall follow the building code, a town can enforce more stringent, but not less stringent rules, and before starting renovations of buildings the persons responsible for such buildings shall obtain a permit. He also explained that the case Bethlehem vs a landfill shows that where the state has acted, and has acted pre-eminently, the state takes precedent. He stated that the Board needs to ask if the case in question deals with a building or structure; which is does, if the state code requires a building permit; which it does, and if the town of Wilton can pre-empt the state code; which they cannot.
In response to a question from the Board, Mr. Little stated that RSA 155A was adopted in 2002.
In response to a question from Mr. Hoar as to what building standards a fishing camp would need to comply with, as it is not a residence or a shed, for instance does it need an occupancy permit, Mr. Little explained one would need to consult the IRC for further information.
In response to a question from Mr. Hoar, Mr. Shepardson stated that the town of Wilton has a more stringent shed regulation than the state.
In response to a question from Ms. Eckstrom, Mr. Little stated that the State Building Code Review Board would have jurisdiction over determining whether or not the structure in question qualified as a fishing camp and this matter has not been before them.
In response to a question from Mr. Hoar, Mr. Little explained that one would need to consult the IRC to determine further any other conflicts between the state and town codes with regard to when building codes are required.
Mr. Griffith read language from a previous court decision and noted that this hearing is supposed to be an evidentiary hearing and so far the Board has only heard legal argument.
Mr. Faiman stated that he does think the Board is bound by conversations between Mr. Griffith and the Court. He suggested that Mr. Griffith could bring this issue back to the court, but if someone in the town files an appeal it is the Zoning Board's job to hear it. .
Mr. Griffith offered a portion of a transcript of a temporary hearing before the court dated April 24, 2013, and the Board declined to consider it because they found it irrelevant.
Mr. Griffith stated that everyone agrees that the building in question is a fishing camp and the building code states that fishing camps are exempt. He also reviewed a portion of the state code stating that New Hampshire fisheries are a vital and important part of New Hampshire culture and should not be overburdened with Zoning rules.
In response to a question from Mr. Jowders regarding the New Hampshire state law that the town cannot enforce less stringent rules, Mr. Griffith explained that special provisions trump general provisions.
In response to a question from Mr. Hoar, Mr. Griffith stated that in 2012 no one knew the size of the camp and Mr. Jowders noted that this was because no one filled out a building permit.
Mr. Griffith stated that you never know what size a structure will be until after it is built, at which point you can measure it.
Discussion ensued as to whether the building in question was an accessory building. The Board noted that accessory buildings over 100SF require a permit and non accessory buildings over 200SF require a permit. It was noted that the information might be found on a past tax assessment card. It was stated that the building was 187SF.
Mr. Little stated that it does not make sense for the town to say that an applicant does not need a permit for a 6000SF building because it is a fishing camp. He stated that the question is whether this is a permitted use in the district and noted that if this is not an accessory building than it is no longer a permitted use.
Ms. Eckstrom questioned if Mr. Silas was suggesting that one could not put fishing camps where there are currently existing maple sugar shacks in residential areas. Mr. Silas stated that this is not the issue, the issue is with the Building Code and the town cannot adopt less stringent codes than the state.
Mr. Griffith restated the stance regarding the protection of New Hampshire fisheries.
Mr. Shepardson stated that the town is not preventing fishing, they are talking about a fishing camp, not fishing.
In response to a question from Ms. Eckstrom, Mr. Griffith stated that no one is living there.
Barbara Woodward, a member of the public, stated that she has lived here for 30 years and the fishing camp has been here forever. She stated that it has been used by the Boy Scouts, the state fishery department stocked the river from the camp bridge, and for years the whole family has used the river to fish and paint. She read several portions of the Building Code and stated that the Building Inspector has an agenda and continued to speak negatively towards his character.
Mr. Faiman interrupted Ms. Woodward and polled the Board asking if they felt Ms. Woodward's testimony was acceptable. Mr. Spear and Mr. Jowders felt it was not and as Ms. Eckstrom was giving her opinion the negative testimony continued and Mr. Faiman decided on behalf of the Board that it was not appropriate.
In response to a question from Kermit Williams, Wilton Board of Selectman, Mr. Faiman stated that anyone who has information that they think is relevant has a right to be heard.
Mr. Faiman noted again that the State Code states that all construction needs a building permit.
Ms. Eckstrom noted that she thought the Board would only be discussing Article II of the Wilton code this evening.
Mr. Griffith read Section 674:19 of the Wilton Zoning Ordinance regarding grandfathered status and Mr. Faiman noted that no one is talking about an existing structure but rather the one Mr. Griffith was proposing building. Mr. Faiman further explained that no one said Mr. Griffith had to remove the rotting structure or that he couldn't play cards in it, rather these decisions were about the replacement building.
Mr. Little stated that state law pre-empts town law and noted the Bethlehem case again. He stated that this is the situation with life safety codes, fire protection codes, and the regulation of private activities. He stated that the state building code applies unless the town makes a more stringent provision.
In response to a question from Mr. Faiman, Mr. Little explained that the town has applied Article II so that buildings over 100 SF require a building permit.
A MOTION was made by Mr. Hoar and SECONDED by Mr. Spear to close the public hearing.
Voting: 5 ayes; motion carried unanimously.
Mr. Jowders stated that if the building is over 100 SF it requires a building permit based on the more stringent state code.
Mr. Spear stated that the local code was less stringent as the state code says all buildings and the Wilton Zoning Ordinance says either structures over 100SF or over 200SF (he is not sure which) need a building permit.
Mr. Hoar stated that this has been a colossal waste of time and he feels that both sides have egos that are adolescent and have wasted four sessions of his time. He stated that once this decision is made he has decided to resign from the Board. He feels that the permit should be required at either 100SF or 200SF but he is not sure which the answer should be.
Mr. Levesque stated that he is inclined to agree with Mr. Jowders as the state standard says all buildings require a permit and Wilton has used 100SF as its standard for when a building permit is required.
Mr. Spear questioned if this building is an accessory building and that he believes a building permit should be required if the building is over 200SF. He further noted that a building permit is not subject to the setbacks etc because of its grandfathered status.
Mr. Faiman stated that the regulation states that if the building is an accessory building a building permit is required if it is over 100SF, if it is not an accessory building than a building permit is required if it is over 200SF.
Ms. Eckstrom stated that she feels a building permit is not required because the building is a fishing camp.
Mr. Spear stated that he feels a building permit is required because the Wilton Zoning Ordinance was less stringent at the time than the state building code.
Mr. Eckstrom stated that she does not recognize that argument because the building in question is a fishing camp and not an accessory building.
Mr. Faiman stated that the state building code overrules the Wilton Ordinance and a building permit is required for a building that is over either 100SF or 200SF.
Mr. Levesque suggested arbitrarily choosing 200SF.
Mr. Faiman stated that the state code states that everything requires a permit, except some things, including buildings under 200SF and Wilton cannot be less stringent than the state so perhaps 200SF is appropriate. He further noted that Wilton's regulations either says that 200SF for accessory buildings or 100SF and both are stricter than the state standard so they both would work.
After further discussion, a MOTION was made by Ms. Eckstrom to find that no building permit is required due to the exemption in Article II. The motion was NOT SECONDED.
A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Spear to find that if the replacement building is under 200SF it does not require a building permit noting that this does not in any way invalidate that the reconstruction is permitted according to 17.1.D.
Voting: 3 ayes; motion carries with Spear, Jowders, and Hoar in favor and Faiman and Levesque against.
A MOTION was made by Mr. Hoar and SECONDED by Mr. Spear to find that Article II is applicable only if this is an accessory building and the Board finds that the building in question is not an accessory building.
Voting: 5 ayes; motion carried unanimously.
A MOTION was made by Ms. Eckstrom and SECONDED by Mr. Spear to adjourn the meeting.
Voting: 5 ayes; motion carried unanimously.
Chairman Faiman declared the meeting to be adjourned.
Heather Loewy Nichols
9/15/14 Page 3 of 3