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Brookfield ZBA reverses planning board on Moose Mountain site plan

September 03, 2009
BROOKFIELD — The Brookfield Zoning Board of Adjustment (ZBA) voted on Aug. 27 to reverse the June 8 planning board decision not to require a site plan review of Moose Mountain Recreation LLC at this time.

In a four-to-one vote the ZBA found the planning board in error in regard to this decision. Furthermore, inherent in passing the motion, it was determined that resident and Selectman Craig Evans' appeal was not untimely and that the previous use on Moose Mountain is not grandfathered, which were two of the planning board's arguments.

The Aug. 27 hearing was continued from an Aug. 13 meeting in which Evans' attorney Jed Callen and Planning Board Counsel Laura Spector presented their clients' cases. After two hours of testimony on Aug. 13, ZBA Chair Tom Lavender closed this hearing to allow the ZBA to deliberate and vote on the matter on Aug. 27.

The planning board argued that Evans' appeal was untimely based on an earlier April 27 vote and that the second vote, on June 8, was invalid as a re-vote. Evans would have 21 days to submit an appeal to an administrative decision. The appeal, which was filed on June 28, falls within the requirement based on the June 8 vote but not that of April 27, which the planning board argued was the only valid vote. Additionally the planning board felt that none of the three "triggers" which initiate a site plan review occurred. These would include the construction of new buildings, an addition on an existing building in excess of 1,000 square feet, or a change in use on the property. Lastly, the planning board maintained that it did not discuss or interpret the zoning ordinance at the June 8 meeting, one determining factor in an official vote.

Evans' argument was that activities on Moose Mountain ended about 1980, and therefore the current use is not grandfathered, as any use variance ceases to exist after one year of abandonment.

Considering these arguments, Dick Peckham of the ZBA first made a motion that the ZBA consider the appeal as timely and that the board count the June 8 vote as official. Peckham suggested that the April 27 and June 8 motions were different, therefore implying that the June 8 decision was not a re-vote at all and could be used as a valid vote. On April 27, Peckham argued, the planning board simply requested Robert Bourdeau of Moose Mountain Recreation LLC to provide plans in writing regarding the future plans for the area, whereas on June 8, Bill Gaver, a member of the planning board, motioned that the board require a site plan review of Moose Mountain Recreation LLC. Agreeing that the starting point should be considered with the June 8 vote, the motion carried 4-1.

Secondly Peckham made a motion that the ZBA does have jurisdiction to hear the appeal because the planning board did, in Gaver's June 8 motion, consider the zoning ordinance as documented in the approved Planning Board minutes. Voted on by the ZBA, this motion passed unanimously.

In regard to the planning board's argument that no site plan review was required because no triggers were set, the ZBA hesitated at determining if there had been a change in use. Peckham urged that the board interpret the zoning ordinance language under permitted uses for a recreational zone, which reads, "The town seeks to encourage innovative development and design through the use of the site plan review process." Peckham explained that because Moose Mountain Recreation LLC would be reopening not as a ski area but rather a tubing and snowboarding park that required new equipment, this "innovative development" should require a site plan review. Chair Tom Lavender commented that he would consider the activity a new use even if opened as a ski area because of the length of time the mountain had ceased to operate.

Peckham maintained that the use was abandoned within one year of closing, which brought the ZBA to the issue of whether the current use is grandfathered. It was explained that a variance for a use ceased to exist after only one year of abandonment.

Considering whether or not the recreational area was grandfathered by the current zoning ordinance, and thus did not require a site plan review, led to a lengthy conversation. Lavender decided to approach the main question from another angle: did the planning board make an error in not requiring a site plan review?After some discussion of environmental impacts, which Peckham pointed out would be totally unknown unless there is a site plan review, the ZBA voted to reverse the Planning Board's June 8 vote. This vote implied that the use was not grandfathered and that there was a change in use.

In closing Peckham offered that more than anyone, he would love to see the area reactivated, but that it should be done the right way. He commented about how, on several occasions, Bourdeau had said he would have gladly submitted a site plan review had the Planning Board required it.

Off handedly at the meeting, Bourdeau suggested that the ZBA had "done a good job putting [him] out of business." He was unavailable for further comment before the deadline for this issue.

At this point, Lavender commented, the planning board may ask for a rehearing, which is required before any appeal may be made to a court. If they do not ask for a rehearing, then the case is finished, and the planning board must ask for a site plan review.

Planning Board Chair Janet Murfey said after the decision she was not sure yet where the board stood on the matter, as they have not met again since the hearing.

Heather Terragni can be reached at 569-3126 or hterragni@salmonpress.com

Martin Lord Osman
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