Members Present: Jane Roberts, Chairman, Gretchen Wittenborg, Ashley Fletcher, Coni Porter, and Dan Baker, alternate.
Meeting was called to order at 7:00 PM.
7:00 p.m. Case #05-27: Richard Dwinell appeal of the Administrative Decision of the Board of Selectmen to allow the proposed use of property located at 646 Route 12 South, known as Bloomin’ Antiques, for a convenience store, Map 8, Lot 13, Rural District.
After reading the appeal and pointing out that the case tonight concerned procedural issues not substantive issues, Roberts read a summary of information pertaining to this case offered by legal counsel with the Local Government Center. ~Three points were made: 1) When meeting with a client in a preliminary consultation the Planning Board cannot make binding decisions; 2) Non-binding decisions are not appealable; and 3) the Selectmen do not sit as an appeal board.
Porter asked if the Board would be able to hear any new information and Roberts responded that the Board is interested in comments on procedural issues. JR Davis, attorney for Mr. Patel, interjected that the question under consideration was ‘is there any validity to the appeal?’
Porter said it was important to note that tonight’s vote not be misinterpreted as a yes or no vote on the special exception appeal from Mr. Patel. She reminded everyone that the special exception appeal has not been withdrawn and therefore was still pending before the Board. She is concerned that a vote tonight may shut off public comment on the case, which is about whether or not the proposed use is a change to the current, grandfathered use, not the procedural issues under consideration tonight. Porter reiterated for the audience that the Board was considering a very narrow issue with the current appeal and noted that if the Dwinell appeal is denied tonight, Mr. Patel’s proposed use will come before the Planning Board for a full Site Plan Review, at which time public comment will be taken. Baker added the Planning Board will hold a public hearing on the site plan review application and abutters will be noticed.
Porter asked if the two questions under consideration tonight were 1) did the Planning Board make a binding decision and 2) did the Selectmen have the authority to interpret the zoning ordinance as they were asked to do in the request for an administrative determination submitted by Mr. Patel.
Roberts said in her opinion the Planning Board was not authorized to make a binding decision at a preliminary consultation. Wittenborg agreed.
Porter thought a consequence of this decision was to shut off public discourse. Baker noted it did feel like the Board was usurping public conversation. Porter asked where abutters can go to make a comment. Baker said abutters can comment at the site plan review and/or take their objections directly to the Selectmen.
Roberts repeated that tonight’s appeal has a very narrow focus and she asked the Board to attend to that. She also agreed, on a philosophical basis, the abutters should be heard on all the issues that concern them, but again asked the Board if the Planning Board had made a binding decision. She noted that she didn’t think the Selectmen had the authority to make an administrative decision. Baker added that while the Planning Board did make a decision, by virtue of voting, they did not have the authority to make a binding decision at that time.
Porter noted that a notice of decision was not issued by the Planning Board, which is customary when an official decision is made. Neither was there a formal application under consideration nor were abutters or the public notified.
Wittenborg moved that there was no appealable decision made by the Planning Board. Motion was not seconded. Baker asked if there was any new information the Board had not yet heard. Mr. Davis, attorney, thought the public hearing on the Dwinell appeal had been closed, and the Board had asked for more time to deliberate, not to continue the hearing. Porter said the public hearing had been continued because the Board had been handed new information at the meeting and they needed time to digest it. Baker checked the minutes and read that the hearing had been continued.
Sandy Coburn, abutter, asked to speak. She understood the Zoning Board public hearing on the original appeal for a special exception to convert an antique store to a convenience store was continued and that case is still pending. She feels the public hearing for the special exception should go forward and a decision made because she feels there is an expansion of use, which shouldn’t be grandfathered without a special exception, according to the town Land Use Ordinance.
Silas Little, attorney for Mr. Dwinell, feels the Local Government Center attorney agreed with his point that the Selectmen did not have the authority to decide this case. He added this case is almost a law school problem, but the Local Government Center correspondence said that if one has a problem with a decision, one petitions the Zoning Board not the Selectmen.
Mr. Davis, Patel attorney, said his client asked the Selectmen to interpret a zoning ordinance. They were not appealing a decision, adding Selectmen often interpret when there hasn’t been a binding decision. He noted Mr. Dwinell did not raise the issue of the Selectmen’s decision itself, but only raised a procedural question.
Wittenborg moved, Fletcher seconded and the Board voted that there was no appealable decision made by the Planning Board and therefore the Board of Adjustment denied Mr. Dwinell’s appeal.
Porter clarified that Mr. Patel can go forward with his special exception appeal to the Board of Adjustment or he can withdraw that application. He must file an application for a site plan review with the Planning Board if he plans to open a convenience store at the proposed location.
Mr. Dwinell asked if the Selectmen had the authority to make a decision since the case was before the Board of Adjustment. Baker said he thought the Selectmen had the authority to correct a mistake made by the Planning Board in sending Mr. Patel to the Board of Adjustment in the first place.
Mr. Dwinell said Mr. Patel had appealed to the Board of Adjustment. Baker agreed, adding the appeal is pending and can be withdrawn.
Minutes: ~The Board reviewed minutes of the November 8, 2005 meeting. Fletcher moved, Wittenborg seconded and the Board approved the minutes as written.
Wittenborg moved, Fletcher seconded and the Board adjourned at 7:40 PM.
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