10 of 'missing' sections found elsewhere in Sanbornton Zoning Ordinance

Mistakes that lead to more 25 years of zoning ordinance changes never being officially recorded in the town’s zoning regulations could results in some costly lawsuits in the years ahead, according to town leaders. But the initial signs point against such actions, they said.

Some of the “omitted” zoning regulations have already been discovered in other parts of the zoning regulations and others may be of little consequence.

Yesterday, Steve Ober, the Selectboard’s representative to the Planning Board, said Town Planner Bob Ward told the panel at its regular meeting night Thursday night that things were probably not as bleak as some people might have imagined. Of the 33 ordinances Ward and his assistant, Carole Chase, had initially identified as “missing,” 10 have been looked into recently and seven were found to be elsewhere in the zoning regulations.

“They were just not where they thought they’d be,” Ober explained. “That’s pretty good, seven out of 10. Hopefully more of them will be like that.”

In addition, Planning Board Chairman Helmut Busack said yesterday that at the meeting the Planning Board decided to move forward with incorporating the “omitted” zoning regulations into the official town records as quickly as possible. “We’re talking about within two weeks,” he said.

Ober said Busack had favored an expedited approach when the planners were first informed of the issue at an earlier meeting but the other members outvoted him, saying the problem should be considered “important but not an extreme priority project” for Planner Ward, according to meeting minutes.

Former Planning Board Chairman Bill Whalen, who is now a member of the Zoning Board of Adjustments (ZBA), said the board’s change of heart — made after the selectmen expressed their concerns about the issue at their regular meting Wednesday night — was the right decision.

Whalen said he found out about the problem by reading the Planning Board minutes of Sept. 6 and immediately encouraged other town officials to take swift action to remedy the situation.

“Apparently Bob (Ward) found out and came and told them (Planning Board members), and made an announcement that things have been omitted and said they (he and assistant Carol Chase) were looking for direction,” he said.

“I don’t know what kind of priority you could put on the matter at that meeting since there’s no indication about what kind of things had been omitted,” he said. “What could be the legal ramifications? I don’t know. And I don’t know how you can set up a priority (on updating the ordinances) at any level if you don’t know what’s missing.”

Whalen said he immediately sent an e-mail message to Ward suggesting the omitted ordinances be “documented and distributed to the Planning Board, the ZBA, the Board of Selectmen, and be available to the public” as soon as possible.

“I think it’s really bizarre,” he added. “That information was omitted and it has to be documented, it has to be shared with the various boards who have responsibilities for making those kinds of decisions — and to the public.”

Busack agreed the omission of the ordinances approved by at past town meetings by voters could result in legal challenges for the town. “But nobody has come up with that yet,” he said.

Andrew Livernois, the chairman of the Selectboard and an attorney, concurred that someone could mount a legal challenge if one of Sanbornton’s land use boards had made a ruling against that person based on an zoning ordinance that wasn't really in the book.

“Absolutely someone could try to come forward now and say, you should have granted this (permit), or you should have denied it because it (your decision) was based on the wrong ordinance,” said Livernois. “But I don’t think it’s likely. Someone would have to figure that out and then bring that claim to us.

“Maybe I’m just an optimist but I guess it’s partly because a lot of these (ordinances) are small, technical changes,” he added. “In the last (Town Meeting) round, we (selectmen) and the Planning Board changed little grammatical things, tightened things up and re-numbered things — things that wouldn’t make a substantive difference (in a ruling.)

“And the big changes — like when we eliminated the elderly housing exemption — the Planning Board would know that happened so they’re not going to miss that,” he added.

CORRECTION: The story that first appeared in yesterday’s Daily Sun entitled “Changes to Sanbornton zoning ordinances haven’t been officially recorded in many years”, contained an error. Selectman Steve Ober did not tell the other members of the Selectboard that town officials were aware of the ordinance omissions previously to their recent discovery.