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ZBA decides to provide reasons for Wiggins decision

Board rejects option to hold a new hearing on permit

June 04, 2009
WOLFEBORO — A three-member panel of the Zoning Board of Adjustment (ZBA) voted unanimously Monday evening, June 1, to provide detailed explanations to Carroll County Superior Court of the reasons why the ZBA voted to grant Mark and Carol Wiggins a building permit on March 10, 2008.

In a decision issued on March 12 of this year, Carroll County Superior Court Judge Steven M. Houran vacated the ZBA's decision in favor of the Wiggins' and remanded the matter to the ZBA "to clarify its decision based upon the pre-existing record," leaving to the ZBA "the determination of whether it is able to clarify its decision by stating that decision 'in writing, together with the reasons for the decision'…based on the pre-existing record…or if, in order to state its decision and the reasons for that decision in writing, it must instead conduct a new hearing."

In their arguments to the court, the Wolfeboro Board of Selectmen had pointed out that the composition of the ZBA had changed since the original decision was made – ZBA members are appointed by the board of selectmen and selectmen had not reappointed some members who had voted in favor of granting the permit when their terms expired. Because of that, Town Counsel Mark Puffer asked the court to order a new hearing before the full current board. Judge Houran denied that request.

Rather than provide written reasons to the court for its decision, the ZBA could have decided to hold a new hearing but the three sitting members rejected that option.

ZBA counsel Laura Spector will draft a response to the court for review at the board's July 6 meeting.

Brief background

In March 2007 Mark and Carol Wiggins applied for a permit to build a house on a 67-acre parcel they owned in North Wolfeboro located on the Class VI portion of Trask Mountain Road. Because the site was on a Class VI road, which is a town road not maintained by the town, state law required that the board of selectmen vote to authorize a building permit after receiving a recommendation from the planning board. The Wiggins went to the planning board on July 24 and received that board's recommendation for a permit with three conditions. Despite that recommendation, the board of selectmen voted not to issue the permit. The Wiggins appealed that decision to the ZBA. The ZBA initially denied the appeal on a 3-2 vote. The Wiggins asked the ZBA to reconsider, submitting new engineering plans, and on March 10, 2008 the ZBA voted 5-0 to overrule the selectmen and allow the permit with the three planning board conditions plus an additional condition. The board of selectmen asked the ZBA to reconsider, the ZBA declined, and selectmen filed a suit against the ZBA decision in Carroll County Superior Court. Judge Houran's March 12 decision to remand to the ZBA was in response to that suit.

ZBA Chair David Booth began the deliberations by recusing himself from the discussion because he had been a member of the planning board and ZBA during the review process. Member Kathy Barnard also stepped down as a planning board member. Member Suzanne Ryan stepped down because she was a member of the board of selectmen when the decision was made not to grant the permit. That left ZBA Vice Chair Alan Harding, member Stephen McGuire and alternate Michael Hodder still sitting. Harding appointed Hodder as a full member for this discussion.

Harding began the discussion by making clear that the three-member board had to determine whether it was possible to clarify the reasons why the decision to grant the permit was made based on the "pre-existing record," which included only the minutes of the March 10, 2008 meeting, the DVD recording of the lengthy meeting, and any other documents submitted as evidence during the hearing. The reasons would have to satisfy four "tests" specified in RSA 674:41, II: 1) whether denying the permit would "entail practical difficulty or unnecessary hardship" to the property owner; 2) whether granting the permit "would not tend to distort the official map;" and 3) would not "increase the difficulty of carrying out the master plan;" and 4) "will not cause hardship to future purchasers or undue financial impact on the municipality."

Harding then asked each of the three members to say whether it was possible to clarify the reasons based on the evidence, beginning with himself.

Harding said he viewed the DVD twice and noted that the ZBA devoted approximately 40 minutes to discussing the four test points, while the minutes only gave two pages out of 12 to those points. He then reviewed the discussion of each of the four points, which was led by then ZBA member (and current selectman) Dave Senecal: 1) "Unnecessary hardship arose from the fact that the BOS had approved nine other building permits on a Class VI highway (these documented approvals are in the record by reference);" 2) "Since there is no official Wolfeboro map this point is N/A;" 3) "Difficulty in carry out the Master Plan – Mr. Senecal stated that this is 'one house on one large lot' and not a subdivision (with attendant pressures). Other: Mark Lucy (with White Mountain Survey) testified that the Class VI access portion could be and would be upgraded for safety thereby creating an improvement. Other: Exhibit D, signed by BOS on 9/05/07 stated that with certain conditions a building permit could be issued despite the recommendation in the 2007 MP: Do not issue building permits;" and 4) "It will not cause hardship to future purchasers due to the signed waiver of liability for the town and would be on file at the Registry of Deeds. Moreover, Attorney Bates explanation of the liability issue convincingly dispelled the notion that third party liability was a major issue by simply stating the town is not liable for any claims arising out of the 'use' of a Class VI highway."

Based on his review, Harding concluded, "I believe we have sufficient evidence in the pre-existing record, primarily the three hour plus DVD, to clarify the ZBA's decision of March 10, 2008 and send it back to Judge Houran."

Hodder said he had also reviewed the evidence. He then went over the back-and-forth discussion of each of the four points in detail. While not every member agreed on each of the reasons for the four points, "The board's subsequent vote was unanimous in favor of the applicant. The record substantiates the board's reasoning behind its vote," he concluded.

McGuire noted that only one of the ZBA's original members (Harding) will be reviewing the case but went on to state that after reviewing the documents and viewing the video he came to his own conclusions. "Did the ZBA listen to all the testimony – yes. Did they say all of the points have been met – yes. Did they fully articulate the reasons why they thought all those points had been met – no. Should they have continued the meeting given the late hour so as to not rush the decision – probably."

Despite his criticism of the ZBA forcing the decision at a late hour, McGuire did vote to respond to the court, adding "The only other scenario would be if the BOS, which now includes former ZBA member Senecal and Kristi Ginter who spoke in favor of the project to convince one other member of the BOS to drop this lawsuit and let the decision stand – good, bad or indifferent."

Harding moved "that we find that we can clarify the board's earlier decision to grant the Wiggins a building permit based on the preexisting record, and that based on our discussion this evening, the board and our counsel shall draft a decision for review by the board at its next meeting." McGuire seconded the motion and it passed unanimously.

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