The Board reviewed the conditions necessary for a rehearing. Did the Board make an error in law? Are the minutes complete or do they need to be clarified? Is there any information presented that was not available to the parties at the previous hearing?

The Board members read the Request for Rehearing submitted by Attorney Bernard Campbell and the Objection to the Request for Rehearing submitted by Attorney David Groff.

Mr. Polito confirmed this was a technical legal case that centered around whether a change in zoning, which established single family setbacks, in clusters that was adopted by the Town on 3/13/2001, is applied to an older cluster development that was recorded prior to the new single family dwelling setbacks. The minutes indicate the Board had a discussion and agreed and accepted the case law and was familiar with the issue of vesting. A single-family lot that had not been developed substantially is not vested should zoning change things like setbacks. This case is complicated by the fact that this subdivision is a cluster, which falls under a different RSA than the standard zoning. It is administered under a different section of zoning. The Building Inspector was not applying the new setbacks to new construction in cluster developments that were recorded and approved prior to the zoning change.

There was a consensus of the Board that they believed the record was clear and detailed enough to explain the proceedings. The Board agreed that there were restatements of opinion, but no new information that had not been previously available or considered at the previous hearing was presented within the rehearing request. There was also a consensus of the Board that there was no error in law and that the Board acted consistently.

Abutters list was read with the following present: Mrs. Casey; Attorney Campbell; Big Island Pond Association

Mr. Polito stated that last month the Board granted a rehearing based on information that in some cases, not all, contradicted information that the Board had in the form of a letter from the Health Officer.

Attorney Campbell presented a memorandum to the Board and explained that he would go through it with the Board. They have submitted a replacement septic system plan. The proposed system is located 50’ at the nearest point from the waters edge. The Health Officer has refused to give local approval for this plan. The appeal focus is on Section 410:8 of the zoning ordinance. This case involves the interpretation of the parenthetical end of the language, which states ‘(This does not apply to existing or replacement systems)’. The memorandum dated September 9, 2005 from the Health Officer indicates that he was unable to approve the plan because of the regulation in the zoning. Attorney Campbell has a letter from the Board of Selectmen indicating that the proper venue for this issue rests with the ZBA.

The applicant contends that the proposed system is a "replacement system". Attorney Campbell has attached a letter from Mr. Evans of the DES, which stated that DES rules do consider a cesspool a waste disposal system. The applicant believes they are designing s replacement disposal system and thereby is exempt from the 100’ setback.

The petitioner has made no secrets of her intentions to convert to a year-round use, such stated fact is irrelevant to the narrow statutory regulatory interpretation, which is before the Board and Attorney Campbell has cited the recent State Supreme Court Case, which states a Boards disagreement with a proposed use is not a determining factor on whether an applicant is entitled to an area variance.

Ultimately, if the septic system is approved by the State to service some type of a year-round structure they will be back before the Board under the provisions of Section 700:2, which is the conversion process. The narrow issue before the Board is whether or not the applicant can ask for and obtain a state permit to replace the septic system that is there now, with a new one as proposed. They do not believe they need to comply with the 100’ setback.

Mr. Polito said he had an opportunity to speak with Mr. Evans and a lot of the discussion does not fall into the narrow confines of what will be discussed tonight. Mr. Polito wants the Board to stay focused on what they are ruling on tonight. Did the Health Officer make an error in interpretation of the zoning ordinance?

Mr. Polito asked what is it that they are replacing? You typically have an established use that is documented with building records, such that you can match up the system that is in the ground with the use in place at the time of the legally acquired building permits. When this was built, Mr. Polito would assume it was adequate for some number of bedrooms. If it is being replaced, it ought to be replaced with something that it was originally intended for or that there is the appropriate building permits records that show the Town allowed whatever was there to grow to some size and still use that septic system.

Mr. Polito stated that one could interpret the zoning to say you are entitled to a replacement system and are relieved from having to get a variance and it is up to the applicant to demonstrate what the appropriate replacement system would be. Otherwise one could say they had a cesspool there for fifty years, claim they have ten bedrooms and are entitled to a 10 bedroom septic system now. Mr. Carter believes it would be in anyone’s best interest to build the best system they could at the time. He certainly wouldn’t want to tell the applicant not to design a system that is any better than a two-bedroom system. That is inconsistent with where anybody would want to go. Mr. Carter is trying to focus on the narrow issue before the Board and not where this may go later. He believed there was tenuous ground for the Board to try and take a position whereby they were to say the applicant could design a system that is not too good.

Mr. Polito said that was not the track he was on, but rather the notion of a vested right of a septic system in the ground. What is the replacement system? You are replacing what is in the ground, not necessarily expanding. If the applicant can come in and show building permits for a four-bedroom cottage and no one has complained about the cesspool that was installed and now they want to replace it, then maybe they are entitled to that. Mr. Carter asked if the State, under any circumstances today, would grant an approval to replace a cesspool with a cesspool? Mr. Polito said they would not.

Mr. Polito said the point is still that the Board does not know what is being replaced. No one knows what the capacity of the current cesspool was built for. Are you replacing a cesspool that was meant for a two bedroom and legally expanded to four bedrooms, or was it a two bedroom that has never had the benefit of review and building permits and it has been expanded. Mr. Polito said that Mr. Evans thought a four-bedroom plan was a stretch for this lot. Mr. Polito thought this would qualify as a replacements system, that does not need to meet the setbacks if the Health Officer had the information of how many bedrooms the original cottage was build with, along with the permits for any expansion. Mr. Polito said he did not know what was before the Health Officer and the denial only indicated the relief did not apply in this case. Mr. Polito asked what was presented to the Health Officer as far as the size of the proposed system and what was given to him in terms of what they believed the vested use was. Attorney Campbell said that he is concerned that the Board/Chair has been engaging in an ex partie communication with a State Official on the application. The applicant does not have the benefit of those discussions with that record. Attorney Campbell also had a conversation with Mr. Evans and who was asked for written documentation that was sent and everyone has had an opportunity to review. He again stated that he believed he was at a disadvantage. Attorney Campbell produced a memorandum/letter dated August 25, 2005 that clearly indicated that there was an original 5-bedroom septic plan submitted to the Health Officer and then subsequently a revised 4-bedroom plan, dated June 2, 2005 was submitted and this was what the Health Officer rejected. Attorney Campbell read the letter and also stated the letter was sent to Mr. Polito. Mr. Polito said that he spoke to Mr. Evans because it was clear he had conflicting information from the Health Officer and Mr. Evans. It took him the better part of 10 days to connect with him. He had asked the Health Officer to contact Mr. Evans, but the Health Officer said he had been unable to reach Mr. Evans. Mr. Polito wanted the record to show that he did not believe there was anything he presented tonight that Attorney Campbell is not already aware of. Mr. Camm went on the record previously stating that the State would not ever approve any septic system if this lot were new. Mr. Polito said the one thing he gleaned from his conversation with Mr. Evans was that the State would rather see a new and more modern system be put in and will grant waivers for that to happen, but they tie that to a vested right.

Attorney Campbell said that he believed it would be his prerogative to put whatever system he wanted to, so that it would last a very long time. The issue of whether this system would support a house in some fashion would be moved to the State forum. If anyone feels the State should not be granting waivers, there are regulatory opportunities for them to file Appeals. Attorney Campbell asked on the narrow issue, does this replacement system need to meet the 100’ setback? He believed the ordinance was very clear that it does not. Whether this system supports a one, two or four-bedroom home, is a function of the State first and the Town’s local ordinances.

Mr. Polito disagrees to some extent, with Attorney Campbell’s view that it is in the State’s hands. In his conversations with Mr. Evans, the State looks to the decision of the Board for a vested right.

Mr. Polito read the denial for the Health Officer. Mr. Carter said that none of the DES regulations could be met without relief. Mr. Polito said there would have to be waivers. Mr. Polito said that was the main error that the Health Officer made in indicating the State would not give waivers. Mr. Carter said that the Health Officer was making presumptions on what would happen with the DES, and therefore denied the approval of the septic plan on those assumptions. Mr. Polito thought it was the Board’s responsibility to make a ruling on the size of the proposed plan. Mr. Friel did not believe that was on the table. Mr. Carter agreed that was not in the narrow issue before them. Mr. Friel believed the information from the Health Officer was not definitive enough on how or why he made his decision. Mr. Carter felt the information in the Health Officer’s letter was not correct. Mr. Riehl felt that as a newly appointed member he did not have enough information.

Minutes transcribed from tape.

Respectfully submitted ______________________________

Rebecca Russo Approved