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Meeting Minutes - ZBA

Town of Leicester

Zoning Board of Adjustment Minutes

Tuesday, August 25, 2009




** See subsequent minutes for any changes


Members Present:  Gerry Flint, Chair, Donna Swinington, Peter Fjeld, Tim Johnson, Jeff McDonough


Others Present:   Kate Briggs, ZA, Charles & Bonnie Johnson and Sandra Trombley, Secretary


Call to Order/Roll Call:  Meeting called to order at 6:00 p.m. by Chair and roll call. 


Review Agenda:    Agreement on agenda.


Approval of Minutes:


July 28, 2009 Minutes:            Brogan

June 30, 2009 Minutes:           Colander

June 10, 2009 Minutes:           Sheri Cameron

May 26, 2009 Minutes:           Paison, Lawes, Ethier

May 05, 2009 Minutes:           Sheri Cameron

April 28, 2009 Minutes


Motion by Pete to accept above minutes.  Second by Donna.  All in favor.

Jeff Abstained.           


January 27, 2009 Minutes

October 28, 2008 Minutes:     Johnson Appeal

September 30, 2008 Minutes:


Motion by Donna to accept above minutes.  Second by Gerry.  So moved.

Jeff abstained.  Tim abstained.  Pete abstained.



Old Business:


Revised application form.  Kate made changes that she believed the PC wanted incorporated.  She added one or two things.  The line for the owner which was not on the draft, but was on the original application.  Apparently it is required.  In case the owner was different than the applicant.  The only exception would be a lease agreement that says you may do certain things.  The fourth page of the application would be the plot plan.  Kate is now working on the detailed instructions and what we want on it. 


At the next PC meeting Kate is going to have a draft of the instructions to complete the form and some procedures for processing the form; internally how the paper flow works.


Kate is working on a list of some proposed changes.  These changes are not substantive changes in the zoning by-laws, but just kind of cleaning them up, like correcting typos that exist or maybe, for example, dropping the requirement that we have the information about where your deed is recorded.  That’s really a PC issue.


Pete recommended that on the instructions, you need to be able to tell what it goes with. 


Kate reported that the insert about zoning went into the tax bills.


Kate stated that Julie will work with her to get the application on the web-site.  Once the instructions have been reviewed and approved, that will be on the web-site.   


Kate and Donna will get together with Elizabeth Golden and work on that questionnaire.  There are free ways to find people even though apparently we are not going to have a grant.


The application reflects the changes that the PC approved. 


Gerry asked about the Findings Form.  Kate stated that this form can serve the purpose and can be completed at the hearing and the Secretary can disseminate after the hearing and it will meet the requirement that there be written notification to all the parties.


Kate will email Shelley and ask about the checklist.  Kate has seen the one page form.  This is also PC work.


New Business:


Tim reported to Jeff that the Selectboard stated that town employees are covered under a town blanket/umbrella protection.  In other words they cannot sue directly as individuals, they go after the Town.  If Jeff would like further clarification he may review the minutes of the Selectboard Meeting or stop in the Town Office.


Jeff thanked Tim for checking into it for him.  He will stop in and look at the policy.


Tim reported on the certified mail issue.  The Selectboard were concerned due to the budget.  They didn’t like the idea of doing the certified mail.  Tim did find, to save us from doing certified mail, the Secretary can do a Certificate of Mailing.  When she comes to the ZBA meeting, she shows that it was sent out.  We don’t have to prove they received it.  It is on page 24, Section 341.  Tim read the section.  This is much cheaper than sending the notices certified mail.


Gerry asked if we were provided with income from permits.  Sandy was not.  Tim was provided with an income and expense report thru 8/25/09. 


Gerry noted that this report shows that it’s costing the town money, when you incorporate a lot of things like advertising, recording fees, postage, secretarial, if we have to have a second meeting.   All of this is a cost.  We have a zoning over-run of $1,600. 


Tim noted that some fees were not collected.  Permit applications should not be going before the ZBA unless the fees have been paid.


Gerry noted that fees need to be looked at.  We should look at other towns and what they charge.  This is an awareness type thing.


Pete asked how we bring it from thought to doing something. 


Donna stated that we put it on the agenda for our next meeting to set a new fee schedule and send it to the Selectboard and then have it posted so that the Town knows as of January 1 there will be a new fee schedule.  With the simple solution, the Town is losing money and they have no money.


Gerry will try to get together with some neighboring towns; Brandon and Salisbury, and compare fee schedules.


Sandy will try to pull some costs together for our next ZBA meeting.  Tim offered to help Sandy because he’s in the Town Office a lot.  He will work with Julie to gather some information to help Sandy with pulling costs together; such as filing, copying, fees, etc.


Motion by Tim to authorize the Secretary send out by Certificate of Mailing notices to any adjoining property owners that a building permit is going to the ZBA.  Second by Donna.  All in favor.


Public Comment:


Bonnie Johnson still had a couple issues.  In the winter of 2008, some of the members were not even on the Board then, in fact there was a different ZA then, they had written a letter from Florida, where they were vacationing, with a question that they would have liked to have had answered.  Bonnie is sure you got the letter, she checked.  Bonnie stated they never received an answer.  They would have liked to have received an answer.  They also sent a letter to Karl Neuse which was part of what was going on at the time.  It was a simple, we thought, yes or no question.  We never got any correspondence back, or response to our correspondence.


Gerry asked to see the letter.  He didn’t recall anything like that. 


Donna asked if it was addressed to Andrew or to them.   Bonnie said it was addressed directly to the ZBA.  Bonnie said she was almost positive that she put it attention to Gerry.  There are things in there now, that have since been solved, but her biggest question was, when the ZBA gives a ruling to a person/applicant or whatever the issue is that they have, who does the right of the ZA at that time, can they overrule the ZBA and go with an opposite answer and tell them oh yes they can or oh no they can’t, if you said yes they can.


Jeff said he thinks it’s the other way around.  The ZBA can overrule anything.


Bonnie said, that is what they want clarified.  Even for the future, it needs to be clarified.  Bonnie feels this must be in one of your laws and if it is, it should be made public so people know this.  They didn’t know because at the time, they were told by the then ZA, that he had the power.  The issue has thus been solved, but for the future…


Donna stated that she has not seen this letter. 


Bonnie stated that she knows for a fact it came to this office.  It was addressed to the ZBA and she had Gerald Flint on it as Chairman.  His name was even highlighted, as she remembers. 


Tim commented as a Lister, that mail addressed to the Listers is opened up and put in their box.  So, someone is opening up town mail and looking at it and depicting where it goes.  He’s not making any excuse, but in defense of them, they may not have gotten this. 


That is what Bonnie was wondering.  Not to come down on the ZBA.  She thought that you would have acted on it.


All they wanted to know at the time was, does the ZBA have control once they make a ruling to someone.   Should that power be enforced or does the ZA say, oh no they can do this or that.


Donna said, no, that’s why the ZA is at the beginning of the checklist that she was talking about.  The ZA is out of the way and then the ZBA makes the final ruling. 


Tim stated that it’s the ZA, the ZBA, Environmental Court if so needed, and then Superior Court.  That’s the chain of command.


Bonnie said the sad part of it was, just so you folks know, it even went on.  The person appealed and went on to Environmental Court and the decision came down the same as what you people had sent.  That part of it is water over the dam.  Hopefully, we are living in peace right now.  Bonnie thinks that does need to be put out and shown.  She would like to be able to find it; where the rule says or whatever.   So, in the future, if people won’t listen, to whether it’s the past, present, or a future ZA,  to be able to say to them like it was to us, ok, oh well, I don’t care what they said, I’m telling them they can do this or that.  It needs to be clarified.


Bonnie’s sorry the Board didn’t get it.  That’s another issue.  She doesn’t feel if mail is addressed to a certain individual that anyone else should be opening that mail. 


Gerry doesn’t know if it’s currently happening or not.   Not long ago, mail coming to the ZBA, mail coming to the Selectboard was opened up ahead of time.


Bonnie knows that as well.  She was Secretary to the Selectboard for ten years and they rarely got a letter that was unopened.


Bonnie is glad that they clarified that they didn’t get it.  That helps.  Bonnie asked if they could help her in the fact that, can they show her.


Gerry stated that they would have to confirm that totally, but he believes that is the way it is.  Before they could put it in a letter, they would have to be absolutely sure. 


Jeff stated as Tim said, it’s a chain.  The ZBA has the final decision until someone appeals it to a higher place.  The ZBA is above the Administrator is his understanding.  If you don’t like the Administrator you go to the ZBA.


Tim stated that if you look in the Zoning law book of the Town, it goes in stages.  The first one there is the issuance of the zoning permit by the ZA,   that’s Section 320.  The next step up is Section 340 the ZBA.  There is a chain and step up as to how that goes. 


Bonnie stated that this was an answer that was clearly given by the ZBA.  It was just sort of backwards where they came down and said they didn’t agree or whatever. 


Bonnie stated she still doesn’t know according to her question.  She thinks it would be a good thing to have if the ZBA could find out 100%, so if it ever comes up again.  If the power gets too great in that position, past or future, it could be addressed.


Bonnie feels as a taxpayer that the mail situation needs to be cracked down on.


Other Business:


Tim had a couple items tonight.  Events that went on at a Planning Commission meeting that Gerry was not at.  There were some things said by the ZA that Tim didn’t feel should be said, definitely not in a public meeting where she’s doubting our integrity or our knowledge or our ways we do business.  With Gerry not being at the meeting, Tim felt it was an important factor to bring up.


Tim stated that he has nothing against Kate.  He wants to squash any rumors around about that at all.  She’s here to do a job.  He just wants to make sure the job is done right.  He is a stickler for regulations.  He likes to see things in black and white.  Tim was a little disturbed at the first meeting she went to the night that he and Pete were being interviewed.  One of her comments was and it’s in the minutes at the 11 minute 20 second mark where she repeated every single, every single, she said it like three times in here,  lot at the lake is a nonconforming lot and anybody that does a permit at the lake will be turned down and turned to the ZBA.  From the get go, right there, that’s kind of a bad outlook to have on things.  What really got Tim upset was the ordeal with the Cameron variance.   The PC of 7/15/09 was when we had the meeting.  This was the meeting that Gerry wasn’t here.  Tim felt bad.  He felt she was attacking the ZBA, saying that we did wrong for the Cameron’s.  She said we were breaking State law.  She said we totally made up a new thing called spot zoning for the Cameron’s and we went about it all the wrong way and we should have never issued them a variance.  She went on a couple times about that and there never should have been a variance given for that.  It was a totally wrong thing and what we did was spot zoning.  Tim said he looked up the regulation on spot zoning and that’s the furthest thing from the truth of what we did.  In the meeting when the Cameron’s were here, she got to speak to the ZBA prior to the Cameron’s coming in.  Twice at the end of that, it’s in the minutes; she states that the Cameron’s are going for a variance.  The permit that she gave to us that night that we did was sent to the ZBA, she failed to write down with a check mark, conditional use, variance or whatever.  Tim doesn’t know if the Chair should talk to her or talk as a group, but Tim didn’t like how she said that that night.  She basically came out on public record and said that we are not doing our job correctly and what we did for the Cameron’s was wrong.  Tim said he could prove her wrong and he will go toe to toe with that green book and prove his point.  He thinks he did that night because they passed the variances for them.  Tim wanted Gerry to know because he wasn’t at that meeting and to bring up a few meetings ago where she came from a meeting out of town and walked in here when we were going to issue a permit, a variance and we have to wait.  Well, show us the regulation on that.  She couldn’t.  He’s taking offense to basically being told that he doesn’t know what he’s doing.


Jeff commented that this falls right in line with what Bonnie just got done talking about.   She makes recommendations.  She tries to advise the ZBA of all the rules, regulations that we may be breaking, whatever.  We listen to that and then we vote.  This means she’s an advisor.  If our rules are broken as a board, someone can appeal to a higher court.  Other than that, it’s one step up.  He wouldn’t take offense to it.   She shared her opinion and then the ZBA will vote. 


Tim stated he doesn’t mind if she brings up points, like that night of the hearing, she walked in and said she was just told this.  It was a surprise to all of us so I asked her to show us the statute.  Show us the regulation where we have to do this and I’ll comply with it.   But when she had a meeting and the three of us were here and you two weren’t here and she called us out, we did wrong.  It’s best in the audio.  She said we should have not given them a variance and it was spot zoning.  Tim looked up the definition for spot zoning and that is if you come to me for a permit for a variance and you want to build a McDonald’s at your house and I granted it to you, that would be doing spot zoning.  Changing the lake thing would be spot zoning, we didn’t do that.  We did a variance on the position of the Cameron’s house.  If someone is going to tell me I’m doing something wrong, have your facts together.  Tim wanted it brought out because Gerry wasn’t here.


Donna stated that this is where the checklist comes in with the steps.


Tim stated that if this permit thing was done right, she would have it filled out to come to the ZBA, she wouldn’t be at the ZBA meeting.  There’s no reason for her to be there and give testimony or whatever.  She denied it and sent it to us.  Many times she leads the ball out of the gate before a meeting.  Tim doesn’t have anything against her or her position, but if someone is going to tell him that he’s not doing his job correctly, show him.  Don’t accuse him, and especially put it in public record.  If she wants to come after a meeting is over and say look guys I found out you’re doing something wrong, ok tell him that. 


Tim felt the ZBA should be aware that things are being said in public meetings that they are not doing their job correctly and he doesn’t feel its right.  He said we are a Town and we should be working together.   Tim’s recommendation is that if anything comes up like this again, to cut it right off, and don’t allow it to be distributed and go into executive session.


Motion by Pete to adjourn at 7:00 p.m.  Second by Donna.  So approved.


 Adjourned at 7:00 p.m.


Respectfully submitted,



Sandra L. Trombley

ZBA Secretary