Roll Call: Present: Chair Jan Galloway-Leclerc, Vice-Chair Judy Trow, Clerk Tom Murray, Pauline Barnes. Alternates: Don Sellarole, Carolyn Vose, Shane O’Keefe and Myra Mansouri. Absent: Board member Tom Winmill and alternate David Edkins. Alternate Ms. Vose was asked to sit in for the absent board member and she agreed.
Minutes: Written by Marilou Blaine. This meeting was recorded. These minutes are unapproved and will be reviewed at the December 2022 meeting for corrections, additions and/or omissions.
Call to order: Ms. Leclerc called the meeting to order at 7:03 pm.
Minutes of October 2022:
Mr. O’Keefe referred to page 3 saying it did not include his last name in the third to to last paragraph. Also, at the end of the same paragraph it should say “Ms. Galloway-Leclerc said she would bring it up.” On the same page, fifth paragraph from the bottom, add “not” at the end of the second paragraph. It should read, “He thought worrying about someone’s computer getting hacked is not a reason to not get information.” Ms. Trow made a motion to approve the minutes as amended. Ms. Barnes seconded the motion and the motion carried.
Responses from the NH Municipal Association:
At the October 2022 meeting two questions came up and Chair Ms. Galloway-Leclerc said she would check with the NH Municipal Association.
The first question was “Is there a recommended way for board members to receive advice from the town attorney?” Our town attorney has requested that the ZBA communicate with him only through the chair, but one of the board members would like the attorney to email his concerns. However, this may make it more difficult to keep his advice confidential. Generally when the chair receives a response from the association, she brings the response to a regular meeting for discussion with the rest of the board.
Jonathan E. Cowal, Esq. emailed the chair, “In situations like this, our advice is always to defer to your town attorney. Whatever they think works best for them and the town is what should be followed.”
Question No. 2: Our ZBA recently heard an appeal that was somewhat controversial. Because there was concern that if the board wasn’t careful, it could end up in court, “I asked the town attorney to attend a meeting prior to the hearing and discuss with the board the rules surrounding who should recuse oneself. We did it in a nonpublic consultation with counsel.
“At our next meeting we entered a nonpublic session and discussed the advice we had received. We did not discuss the appeal. We discussed what we understood the attorney to have said regarding the general procedure of recusing oneself. For example, the rule that each member must make the decision for him/herself, but that perhaps some personal relationships might be considered too close and may be grounds for an appeal in certain situations. After we came out of nonpublic session we sealed the minutes.
“At this time the appeal before the board has been decided. When the time limit for appealing that decision has passed, will it be appropriate to unseal the minutes of the nonpublic session? One opinion is that because the matter discussed was advice given by counsel that the minutes be unsealed because they only pertain to discussion of procedure in a general manner with no reputations involved, and for purposes of transparency we should not keep them sealed. What is your advice?”
Mr. Cowal wrote “Unfortunately, I cannot answer this question for you. I can only point you to the law and the board will need to decide what they think is right for themselves. What I can tell you is that any actual discussions with your attorney would be protected by the attorney client privilege and would never need to be disclosed unless by a court order. However, minutes from the nonpublic session where the board simply discussed the attorney’s advice and the attorney was not present should be evaluated under RSA-A:3 III which states the criteria for unsealing minutes. The board should review that criteria and vote for what they think is appropriate.”
The Zoning Board has several sealed minutes that are held by the chair and it was decided at the previous October meeting that some of them should be unsealed. Ms. Trow made a motion to go into nonpublic session. Ms. Barnes seconded the motion and the motion carried. The time was 7:20 pm. Ms. Trow made a motion to come out of nonpublic session at 7:40 pm for consideration of whether to disclose minutes of a nonpublic session due to a change in circumstances under paragraph III. However, any vote on whether to disclose minutes shall take place in public session. Ms. Barnes seconded the motion and the motion carried.
The purpose of the nonpublic session was to review the sealed minutes of two nonpublic meetings March 18, 2020 and August 17, 2022. A motion was made, seconded and approved unanimously by the board to unseal both of these nonpublic session minutes. These nonpublic minutes will now become part of the permanent record of minutes in the appropriate binders in the locked ZBA files.
At the October meeting the board decided it would be a good idea to review the ZBA bylaws. They planned to do it at the November meeting. The board would also look at the Suggested Rules of Procedure for Local Boards of Adjustment. So the board spent the next hour and 20 minutes going over the current Bylaws line by line. Ms. Barnes asked what’s the difference between Bylaws and Rules of Procedure and Ms. Galloway-Leclerc said she asked the Municipal Association that same question. She said they are the same thing. Attached is what the board is working on. It is a work in progress. The process will continue at the December meeting and there will be a vote on accepting or not accepting the new Bylaws.
At 9 pm Mr. Murray made a motion to adjourn the meeting. Ms. Trow seconded the motion and the motion carried.
cc: ZBA, WPB, Town Offices, The Walpolean
Posted: Inside the Town Offices, on the bulletin board outside the Post Office.
TOWN OF WALPOLE
ZONING BOARD OF ADJUSTMENT
ARTICLE I. AUTHORITY
Section 1.These bylaws are adopted under the authority of New Hampshire Revised Statutes Annotated Chapter 676:1 and the Zoning Ordinance of the Town of Walpole, New Hampshire.
Section 1. A Chairperson shall be elected annually at the first meeting following the town meeting by a majority vote of the board. The Chairperson shall serve for one year and shall be eligible for re-election. The Chairperson shall preside over meetings and hearings, appoint such committees as directed by the Board, and shall affix his/her signature in the name of the Board.
Section 2. A Vice-Chairperson shall be elected annually at the first meeting following the town meeting by majority vote of the Board. The Vice-Chairperson shall preside in the absence of the Chairperson and shall have full powers of the Chairperson on matters which come before the Board during the absence of the Chairperson.
Section 3. A Clerk shall be elected annually at the first meeting following the town meeting by a majority vote of the Board. The Clerk shall serve for one year and shall be eligible for re-election. In the absence of the Recording Secretary, the Clerk shall maintain a record of all meeting, transactions, and findings of the Board and shall perform such other duties as the Board may direct including the affixing of his/her signature in the name of the Board.
Section 4.In the absence of the Chairperson and Vice-chairperson, the board may vote to appoint a member to serve in the position of Chairperson.
Section 1. Up to five alternate members shall be appointed, as provided for by the local legislative body, and should attend all meetings to familiarize themselves with the workings of the board to stand ready to serve whenever a regular member of the board is unable to fulfill his/her responsibilities. The terms of the alternates is for a period of three years each (RSA 673:6, II-a) and shall be reviewed annually at the first meeting following the town meeting.
Section 2. In the absence of a regular member, an alternate will be appointed to serve. If a scheduled hearing is not concluded during the meeting, the alternate will continue in all related subsequent hearing. At meetings of the ZBA, alternates who are not activated to fill the seat of an absent or recused member or who have not been appointed by the chair to temporarily fill the unexpired term of a vacancy, may participate with the board in a limited capacity. During a public hearing, alternates may sit at the table with the regular members and may view documents, listen to testimony, ask questions and interact with other board members, the applicant, abutters and the public. Alternates shall not be allowed to make or second motions. Once the board moves into deliberations, alternates shall no longer participate with the board and may remove themselves from the table and/or room. During work sessions or portions of meetings that do not include a public hearing, alternates may fully participate, exclusive of any motions or votes that may be made. At all times, the chair shall fully inform the public of the status of any alternate present and identify the member who shall be voting on the application.
Section 3. Members must reside in the community and are expected to attend each meeting of the board to exercise their duties and responsibilities. Any member unable to attend a meeting shall notify the chairperson as soon as possible. Members, including the Chairperson and all officers, shall participate in the decision-making process and vote to appr0ve or disapprove all motions under consideration.
ARTICLE IV. MEETINGS
Section 1. Regular Meetings
Regular meetings shall be held at the Walpole Town Hall at 7 PM on the third Wednesday of the month. Other meetings may be held on call of the Chairperson provided public notice is given and notice to each member at least twenty-four (24) hours in advance of the meeting in accordance with RSA 91-A:2, II.
Section 2. Quorum
A quorum for regular business shall consist of three (3) members. If a member disqualifies himself/herself or cannot act in a particular case the member shall notify the Chairperson to appoint an alternate who shall have all the powers and duties of a regular member in regard to the appeal or appeals under consideration on which the regular member is unable to act (RSA 674:33 Powers of Zoning Board of Adjustment. III). The concurring vote of three (3) members of the Board shall be necessary to reverse any action of the administrative official or to decide in favor of the applicant on any matter on which it is required to pass.
If there are less than five members (including alternates) present, the Chairperson shall give the option to proceed or not to the applicant. Should the applicant choose to proceed with less than five members present, that decision shall not solely constitute grounds for a rehearing should the application fail.
If the applicant opts to postpone due to less than a full board present, the board shall announce the time, date and location of the continued hearing. If the board cannot determine the time, date and location of the continued hearing, the board shall provide new notice to all parties pursuant to RSA 676:7.
Section 3. Order of Business
The order of business for regular meetings shall be as follows:
1. Roll call.
2. Minutes of the previous meeting.
3. Disposition of appeals under consideration.
4. Hearing of new appeals.
5. New Business.
NOTE:The formal observance of the order may be waived by mutual and unanimous consent of the members of the Board to better expedite the business of the meeting.
Section 4.Public Hearing
The conduct of public hearings shall be governed by the following rules:
a. The Chairperson shall call the meeting to order and call for the Clerk’s report on the first case.
b. The Recording Secretary shall read the application and report on the manner in which the public notice and personal notice were given.
c. The applicant shall be called to present his/her appeal and those appearing in favor of the appeal shall be allowed to speak.
d. Those in opposition to the appeal shall be allowed to speak.
e. Those in favor shall be allowed a rebuttal.
f. Those in opposition shall be allowed a rebuttal.
g. The hearing on the appeal shall be declared closed.
h. Voting on Variances: The Board will discuss each of the five criteria separately, but have one vote on the decision for the application for a Variance.
i. At any point during the hearing, if any party to that hearing, after being cautioned by the Chairperson, continues to act in a disruptive manner, the Chairperson may accept a motion to recess the hearing and upon majority vote in favor of such motion shall declare the hearing recessed.
j. Any member of the Board, through the Chairperson, may request any party to the case to reappear.
k. Each person who appears shall be required to state his/her name and address and indicate whether he/she is a party to the case or an agent orcounsel of a party to the case.
l. Any party to the case who desires to ask a question of another party to case must do so through the Chair.
m. Any person who desires the Board to compel the attendance of a witness shall present his/her request in writing to the Chair no later than three (3) days prior to the hearing.
n. All complaints must be submitted in writing to the Board and signed by the complainant in order for the Board to act upon the complaint.
Section 5.Joint Hearings
The Zoning Board of Adjustment may hold joint meetings or hearings with other town “land use boards”, including the Planning Board, the Historic District Commission and the inspector of buildings, and that each board shall have discretion as to whether or not to hold a joint meeting with any other land use board. When there is a joint meeting with the Planning Board, the Planning Board will chair the hearing; if not, the Zoning Board will chair the meeting.
Section 1. Each application for an appeal shall be made on forms provided by the Board and shall be presented to the Board. The Recording Secretary shall record the date of receipt over the Chairperson’s signature.
Section 2. An appeal to the Board on any administrative decision or requirement shall be taken within forty-five (45) days of the date of such decision or requirement.
Section 3. The Board shall reject any application not properly filled out and will decide the time of the hearing for all other applications when received.
Section 4. The Board shall decide all cases within thirty (30) days of hearing. Notification of the decision shall be sent to the applicant and filed in the records of the Board.
All forms and revisions thereof shall be adopted by resolution of the Board and shall become part of the bylaws.
ARTICLE VII. FEES
The Board may, from to time, establish a fee schedule for public hearings, permits, notices, and other such times or procedures as may be needed. The fee schedule shall be posted publicly.
ARTICLE VIII. PUBLIC NOTICE
Section 1.Public notice of public hearings on each appeal shall be given in a local newspaper (10) days prior to the meeting and shall be posted at the Town Hall at least five (5) days prior to the hearing. Such notice shall include the name of the applicant, provision of the Zoning Ordinance concerned, the type of appeal being made, and the time and place of the hearing.
Section 2.Personal notice shall be made by certified mail to the applicant, property owner and all abutters. Notice shall be given to other parties deemed by the Board to have special interest. The notice shall contain the same information as the public notice and shall be made on forms provided for this purpose.
ARTICLE IX. Minutes: RSA 91 “Raw materials: Tapes and notes used to compile meeting minutes are governmental records as long as they are retained: policy to discard/reuse after minutes are approved is acceptable.”
ARTICLE X. AMENDMENT
These bylaws may be amended by majority vote of the members provided that such amendment is read at two successive meetings.
Revised: November 2022