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Conduct of 2 Planning Board members dealt serious blow to integrity of zoning ordinance

  • Published in Letters

To The Daily Sun,

First, I want to make it clear that I am writing this as a single member of the Board of Selectman. My opinions expressed in this letter should in no way be interpreted as representing those of anyone else on the board individually or as the view of the board as a whole.

The Board of Selectmen, relative to whether or not there was cause to remove two elected planning board members from office, conducted a public hearing recently. There was much uproar about the process of how that hearing came about and very little about the actual conduct of the two members in question. That was certainly unfortunate and by anyone's standards it could have been handled better. However, in this case the conduct occurred entirely in the public eye, recorded on video and recorded in the official minutes of the meeting. Neither I, nor anyone else had to rely on some anonymous complaint to determine whether or not the actions of the members actually took place. This was conduct, which occurred, in an open hearing for a Conditional Use Permit, conduct that was not refuted in any way by one of the members during their hearing.

The focus should have been and should be on the conduct of the two Planning Board members during the public hearing for the Bear's Nest application. This was for a lookout tower that had been constructed without any building permit, and was in violation of two portions of the Zoning Ordinance. During that hearing, both members stated repeatedly and emphatically that it was their opinion that the application before them failed to meet one or more of the required criteria necessary for approval. One member voted "no" on three of the required criteria, but then choose to vote for the application's approval. That member continued to state that they felt the application was in violation of the ordinance but that it was a "has been", referring to the fact that the building already existed. When questioned further about changing their mind, their statement was "I didn't change my mind, I changed my vote". In other words, they still felt that the application was in violation of the ordinance, but were voting for its approval anyway.

The second member in question also felt that the application did not meet the requirements of the Zoning Ordinance and stated so repeatedly during the hearing. He also stated at the beginning of the hearing "If I may, I do not think in any way the fact that something has already been built should affect our decision at all". Yet when it came time to actually vote and weigh in on whether or not the applicant had met the criteria, he refused to vote on one of the criteria and then abstained on another. When questioned by fellow board members about that conduct he stated, "I abstained on those two, um, for the reason that there is a reality here... the alternative really is to deny it and the effect of that would be to either require that it be moved or taken down or some other, or maybe we go to court for six months or a year...". He followed that with, "I guess in further, to further my thoughts on the thing. I think that the board ought to very carefully consider what happens if we say no. I don't like being held, to have my feet held to the fire." When that member was asked why he didn't just vote then on those two criteria he responded, "Because I am not going to say that I believe that they passed, that they met those two criteria." In other words, much like the member mentioned above, this member also did not feel that the necessary criteria had been met, yet they then proceeded to make the motion to approve the application and voted for it in the end.

The issue at hand is this: members of our land-use boards are not there to do what they think is in the best interest of the public or the voters. Their duty is to protect the public interest as embodied in the zoning ordinance. This is a very important distinction! The overall integrity of our zoning ordinance is an invisible party to every case and part of their function is to protect its interests! The question that should be asked in every case is, "Could we allow EVERYBODY whose property is in these same circumstances to do the same thing, and still preserve the integrity of the zoning ordinance?" In this particular case, we have two Planning Board members who repeatedly stated that this application did not meet the requirements of our zoning ordinance, but still failed to protect it by voting accordingly! There should have been no consideration given as to the possible consequences of their particular vote, whether in the affirmative or negative, other than would their decision uphold the integrity of the zoning ordinance. It shouldn't have mattered how deep they perceived the applicant's pockets to be, or how impressive the applicant's attorney was in presenting their case, or the perceived threat of a lawsuit if the application was denied, all that should have mattered was whether the applicant met the requirements of the zoning ordinance. In this case these two members felt that the applicant had fallen short but would not or could not do their duty and uphold our zoning ordinance.

At the end of the day, I believe that the conduct of these two Planning Board members dealt a serious blow to the integrity of our zoning ordinance. In doing so, I also believe that damage was done to the credibility of any enforcement attempts in the future regarding our zoning ordinance. It has been stated by some that we as a Board of Selectmen should have challenged the Planning Board's decision in Superior Court. It is my opinion that if these two Planning Board members had done their duty that would not have been necessary, nor would it have addressed the much more serious issue. It is one thing for our land-use board members to faithfully apply our zoning ordinance, make a judgment call on any given application as to whether or not it meets the required criteria and then vote accordingly. In those cases one might still disagree with their decision, but they will have followed the law and applied it to the best of their ability. If however, we have members who will not vote to uphold our zoning ordinance even when they think and publicly state that it would be violated by a particular application, then what is the point of having a zoning ordinance in the first place?

Jonathan W. Tolman

Selectman, Town of Moultonborough