The Town of Harrisville Zoning Board of Adjustment held a public meeting and public hearing on Wednesday, April 17, 2019 at the Town Offices located at 705 Chesham Road.
Members present: Hal Grant, Chairman; Charles Sorenson, Vice-Chairman; Rex Baker; Patrick Gagne; Jeffrey Trudelle*; Kathy Scott, Alternate Select Board Representative**; Pegg Monahan, Alternate; Andrew Maneval, Alternate; Mary Ann Noyer, Alternate
Members absent: Jay Jacobs, Select Board Representative
Members of the public: Jay and Stephanie Raynor, applicants; William Raynor; Brice Raynor; Jamie Jayde; Don Scott; Chick Colony; Patricia Colony; Erin Hammerstedt
*ZBA member Jeff Trudelle recused himself from the public hearing portion and sat with the public
** Kathy Scott, Selectboard Alternate to the ZBA, also sits on the Historic District Commission
Meeting called to order at 7:01 pm. Chairman Hal Grant noted that the voting members for the evening were himself, Charles Sorenson, Patrick Gagne, Rex Baker and Mary Ann Noyer.
Jason and Stephanie Raynor, 3 Main Street, Map 61-Lot 4
Prior to the presentation of the Raynor application, question about jurisdiction over the matter was raised by Charlie Sorenson and Kathy Scott. Both spoke their belief that this proposal for window replacement was different from previous issues about 3 Main Street dealt with by the ZBA, and this application should instead be before the Historic District Commission.
Mr. Sorenson asked Ms. Scott, a member of the HDC, if the Raynors were to submit their application to the HDC, how long it would take the HDC to properly notice, hear, and reach a decision. Ms. Scott replied that a decision likely could not be reached until the HDC’s regular meeting on May 22.
Mr. Sorenson further explained his position, that he believes the ZBA may not be the proper jurisdiction for this, as this particular application was different from the appeals that have been dealt with regarding the actions of the HDC. He noted that the ZBA is an appellate board of the HDC, intended to correct mistakes that were made. But, with regard to the zoning code, he stated that the ZBA is more than that, including hearing first-instance applications. Mr. Sorenson added that, unless there were some existing barrier regarding the likelihood of getting a fair hearing before the HDC, or regarding the timing of the hearing before the HDC, he believes the proper jurisdiction may not be the ZBA, as the Raynors’ application in this instance did not involve the appeal of a decision.
Ms. Scott then offered her perspective, citing from HDC regulations that “When an exterior change, or change in use of building or land is contemplated, details shall be submitted to the commission.” She sees the Raynors’ application for new windows as a new request that should come before the HDC. Mr. Sorenson agreed, adding, if the HDC behaved in a manner that appears questionable, then the Raynors had the opportunity to appeal to the ZBA. Both noted this is true for all applicants.
Mr. Sorenson reiterated that previous matters considered by the ZBA in the case of the applicants involved state law related to procedural irregularities and an appeal of a decision made by the HDC, but that this matter was different and within the HDC’s authority. Though he acknowledged that the applicant and other board members may disagree, citing the difficulties through the Raynors’ application process and a perceived lack of faith in the HDC, Mr. Sorenson, with Kathy Scott agreeing, also sees this as an opportunity for the HDC to rehabilitate itself and the process.
Discussion ensued about the impression left at previous hearings, and the final motion made by the ZBA on August 1, that further review of design changes related to 3 Main Street would be reviewed by the ZBA. Mr. Sorenson noted that the previous actions before the ZBA were narrow in scope, involving the appeal on the HDC decision to disallow the moving of the building and on an appeal to go forward with certain design conditions. He added that impression cannot be confused with the authority to act. Kathy Scott emphasized that it’s a process question and important for all the boards and for the town to get it right.
With a request from the board chair for the exact wording of the ZBA’s motion on August 1, 2018, the recording secretary read it aloud as follows: “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.”
Pegg Monahan wondered if the ZBA could discuss and possibly decide that, from this point on, any review of changes in the Raynors’ plans should revert to the HDC? Mr. Sorenson thought that was on the right track but reiterated, along with Kathy Scott, that the current window proposal was not reviewed by the ZBA and not part of the design considered and approved by the ZBA, but was new. Mr. Sorenson did not see any statutory authority for the ZBA to consider the application. Ms. Monahan stated she could see, based on the motion that passed on August 1, why the discussion was taking place. Mr. Sorenson then stated that, for the same reason that the HDC action to reverse its decision could be appealed, any action by the ZBA tonight on this application, he believes, could be appealed for being ultra vires, or outside the board’s authority. He advised the board that it may not want to go this route.
Mr. Sorenson then asked the applicants and their contractor how harmful it would be to postpone the decision until next month. They noted that it would set them back, and that the turnaround time to order the windows is approximately 3-4 weeks. All the other windows are in the barn and ready for installation. It was confirmed that a special meeting could potentially be held by the HDC, given proper noticing time and the ability to convene a quorum, though Kathy Scott noted the challenge of the latter given members’ schedules. As far as what would be required to submit a complete application to the HDC, Ms. Scott noted the importance of including as much detailed information as possible about both the existing and proposed windows, including photos or sketches. Seth Kallman’s recent application before the HDC was cited as a helpful example and a copy could be provided.
Discussion turned to the specific condition of the existing windows, sills and trim on the subject property and it was noted that, with the modifications of previous owners, the original dimensions and materials and casings, for example, no longer exist. Mr. Raynor then spoke to applaud the HDC’s efforts to improve their processes, stating it was great for the town but, from a personal perspective, they don’t want to be the practice case and have it on their shoulders. In addition, Mr. Raynor continued, he believes the motion of August 1 is quite clear in stating that any changes to the plans then approved were to be reviewed by the ZBA , and that they have been doing that in good faith. Finally, having checked on timing of ordering windows, Mr. Raynor stated it would be 4-6 weeks, not 3-4, and coupled with possibly having to go to the HDC would set them back substantially. He asked not to have to repeat the process of last summer but to proceed with the hearing before the ZBA. As a final question, Mr. Raynor wondered, if this issue was a matter of interest to the HDC, why none of its members, other than Ms. Scott, was in attendance. Kathy Scott noted it wasn’t a matter of interest but of personal schedules.
Following continued differences of interpretation about the motion from August 1, and about the importance of following proper procedure for legal reasons, Mr. Raynor stated he was willing to take the risk if a party ultimately wanted to appeal any action of the ZBA tonight. Mr. Sorenson replied that the town may not want to take the risk, as the town would have to pay for the defense if a party with standing wanted to appeal a ZBA decision on the windows. He added that, to the Raynors, the risk is delay by having either to appeal the decision to have to return to the HDC, or delay from an appeal on an action by the ZBA tonight, including an appeal by the Select Board. Mr. Sorenson emphasized he was seeking the most procedurally legal way to proceed with the matter, in as efficient a way as possible. Just as the HDC acted outside of its authority in several instances, Mr. Sorenson added, if the ZBA interprets its motion as giving it the ability to oversee all matters related to the property, he feels its outside the ZBA’s jurisdiction to do so.
When asked his opinion, Andrew Maneval stated that, without having the benefit of going through all the proceedings leading up to the August 1 decision and motion, he sees Mr. Sorenson’s point about the possible ultra viresact as the critical one, and one that doesn’t have to do with the HDC, but what is within the ZBA’s authority. He added that, though there is an element of interpretation in that, the danger lies in the question of interpretation.
Following comments by William Raynor questioning the credibility of the HDC and its procedures, and in support of the ZBA’s jurisdiction based on its previous motion, Hal Grant summarized that, right or wrong, the applicants wished to proceed.
Mr. Sorenson then moved that the ZBA reject the application and send the matter to the HDC at the earliest possible time. If the HDC cannot act in a reasonably expedient fashion, my motion would contain the provision that the Raynors return to the ZBA because of the inaction of the HDC. Mr. Sorenson saw no need for such a meeting by the HDC not to happen within the time necessary to properly notify abutters, which could be within ten days. Kathy Scott did not feel that was reasonable and proposed ten days from the next HDC meeting on April 24. She added that a completed application would have to include detail on the proposed windows and she offered to provide the Raynors with a copy of Seth Kallman’s application as an example of completeness.
Asked about issues of importance to the HDC on windows, Ms. Scott noted that windows with a historic look, with divided light, and six over six panes as appears in most of the houses around the district. She acknowledged that replacing historic windows in kind is a severe expectation, but that certain state of the art divided light windows on the market today have been approved by historic districts at the state and local level. The details provided by the manufacturer can and should be included so the HDC knows what it would be approving and what it looks like.
Mr. Sorenson clarified for the Raynors that he was trying to get a sense of how long it would take to prepare a completed application for the HDC. He then rephrased his motion and moved that the ZBA deny the application and refer it to the HDC for review at the earliest practical time, ideally within ten days to two weeks.Mr. Sorenson stated, to be legally consistent, he doesn’t see any other way to approach this. He deeply apologized for the misleading language in the motion that led some people to construe that the ZBA has total control of the process.
Rex Baker then asked what would happen if the HDC did not meet or reach a decision within two weeks, following acceptance of the application. Mr. Raynor also wondered this and also what would happen if Mr. Sorenson’s motion did not pass and whether the ZBA could pull it back into its jurisdiction.
Mr. Sorenson didn’t think the ZBA could hear an appeal without a denial by the HDC. He then proposed rewording the motion to state that the ZBA would hold the application in abeyance until such a time as the HDC can act. Mr. Maneval thought this was doable and also reflected the possibility of reconsidering ambiguity of the August 1stmotion, as well as reflecting interest the ZBA may have in guidance from the HDC.
Next, the idea of a joint meeting was proposed with the goal of meeting within the next two weeks. Mr. Maneval added the idea of adjourning the motion and continuing the ZBA meeting to the time and date of the next HDC meeting on April 24. He posited that, if a decision were to be reached at a joint meeting with all parties attending, in these circumstances the ZBA may choose to withstand any challenge to a decision, given the lessened significance of the jurisdictional issue with both boards attending. Discussion of logistics ensued over a proposed continuance to a joint meeting.
Mr. Raynor reiterated that they already were 3 weeks behind given the required application process, and that they would have gone to the HDC, had that been the understood requirement, and potentially could already have had that meeting. He added that proceeding in the ZBA’s proposed timeframe added an additional hardship in the construction process.
Mr. Sorenson then advised that, from his review of the regulations, it was the applicant and not the ZBA that had to request a joint meeting, that the ZBA could call the meeting and conduct it under its rules of procedure and that each board has the authority at the meeting to request information within its jurisdiction. Mr. Sorenson added that, should the Raynors request a joint meeting, the ZBA could continue this meeting to next week’s HDC meeting if the ZBA could appear on the agenda in an expedited manner. Asked if he could prepare a completed application by next week, Mr. Raynor responded yes, with Stephanie Raynor noting they had all the information and materials on hand to show the board now.
Mr. Sorenson then summarized the options for the Raynors: If they requested a joint meeting, the ZBA would make it happen next week; If the Raynors requested to move forward tonight, Mr. Sorenson’s motion denying the application and referring the applicants to the HDC stands; If the motion is defeated, the members of the board wishing to vote on the application would review and hear it. He added that the alternate possible motion is to continue the ZBA meeting to the HDC meeting, assuming an application is prepared for the HDC to consider. Mr. Sorenson emphasized that the ZBA was not pushing it off but attempting to expedite review.
As there was no request from the applicants for a joint meeting, Mr. Sorenson asked that the original motion be reread: Charlie Sorensonmoves that the ZBA deny the Raynor application and refer the matter to the HDC for review at the earliest practical time, ideally within ten days to two weeks. No second was offered. Hal Grant then asked board members if they felt the matter was within the ZBA’s jurisdiction based on the motion of last August. Mr. Sorenson believed a vote was required on that question.
Rex Baker asked for the August 1 motion to be restated: 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.
Interpretation was mixed, with several board members feeling the motion could be, and was, interpreted that any changes to the design presented last August would be reviewed by the ZBA, and that windows could be included in such changes. Mr. Sorenson noted a distinction between reviewed and acted upon. Mr. Baker asked Mr. Sorenson the legal ramifications for the ZBA should it decide to hear and decide on the application. The reply was that any abutter affected, which could include Historic Harrisville, could appeal. It was noted that the Select Board also would have standing to appeal. Speaking for the Select Board, Kathy Scott noted its interest would be in a fair process.
Mr. Maneval subsequently clarified that there are two potential grounds for a challenge: 1) that it was wrongly decided by virtue of not going to the HDC and the wrong decision was made by the ZBA; and 2) however much we like a board is no reason to send something to that board, and however much we dislike a board is no reason notto send something to that board. He believes Kathy Scott’s reference to process rested on the belief that, if a board is dispossessed of a responsibility, that’s a challenge that gets to town governance, which could be a more dangerous appeal with respect to a ZBA decision. Ms. Scott agreed with this.
Mr. Raynor proposed that, given that all the interested parties, and the parties who may appeal, were in the room, he requested a few minutes of time be taken to present their ideas. Mr. Sorenson suggested doing so to the board, with everyone interested participating in the discussion. Mr. Maneval cautioned that there may be a bigger danger than a potential appeal by Historic Harrisville, and that is an appeal by the town over the decision making, via the Select Board or the HDC, though he was not discouraging the Raynors from proceeding.
The applicants approached the table and presented photos of the decaying windows and brick-molding casings, and sashes with broken seals, noting that the windows pictured were from the 1980s. Mr. Raynor also showed photos of the storm windows and rotten sills. When asked what was proposed, Mr. Raynor noted the new windows would be Anderson 400 series double hung wood windows, with a vinyl exterior, in the same dimensions as what exists. As appears in most homes around town, Mr. Raynor stated, the exterior trim would be all flat. He proposed that all the windows on the main house be replaced. Chick Colony asked if any of the old windows had survived and it was confirmed that none remained. Jeff Trudelle did say that the casing around the round window on the barn appears to be original but not the sash.
Erin Hammerstedt then spoke to reiterate Historic Harrisville’s concerns about the procedure. She believes whoever reviews the project should use the Standards for Rehabilitationbut explained that, because these are not historic windows and that very little original material remains, this allows much more latitude. With replacement appropriate in this situation, what becomes important is dimension and materials. She was concerned that the whole experience of this application had become one of parties fearing each other and questioning procedures. She hoped whoever reviewed the application would use these standards and guidelines. She added that she wasn’t stating the standards hadn’t been met in this case. She sees the recent Kadakit Street example as more problematic as, in the case of 3 Main Street, the windows had already been replaced and the building had been moved and, thus, the integrity was not there. Ms. Hammerstedt did note her belief that the process was good in the Kadakit Street application, even if she disagreed with the outcome.
Upon a question from Patricia Colony whether the ZBA sees this application as complete, the board confirmed it did, noting that the application requirements differed from the HDC’s.
Upon no further discussion, Rex Baker moved that the ZBA accept the proposed windows with the contingencies set forth within the Guidelines for Rehabilitation, provided by Historic Harrisville, including that the windows remain the same dimensions, and in the same locations, and use the improved materials proposed with a double sash all wood structure with vinyl clad, six over six panes, with screens but no storms integrated into the trim jam, and exterior trim to match the trim on the north-facing windows. Patrick Gage seconded. No discussion ensued. The vote was 4-1 in favor, with Charles Sorenson opposed for the reasons he stated throughout, namely that he does not believe the ZBA had the jurisdiction to make the decision.
Minutes of February 20, 2018
The board moved to approve the minutes of its February meeting. All voted in favor.
Board members reminded each other that all email communications regarding applications must go into the public file and that all communications must be informational only and not contain any discussion or solicitation of opinion.
Members moved to adjourn at 9:03 pm.