SANBORNTON — Nearly a year after a local couple applied for permission to hold agritourism events at their Upper Bay/Davis Road property, the Sanbornton Planning Board approved their site plan, but not without some confusion.

After three hours of discussion on Monday, there were two votes in favor of approval, with two abstentions. That sent officials scurrying to determine whether two votes were sufficient for passage of the motion.

The town relies on Robert’s Rules of Order for the conduct of meetings, but Planning Board Assistant Stephen Laurin wanted to be sure that there was nothing in the town’s regulations, or changes in state law, that would legally affect the outcome.

“We wanted assurance that we were safe and it was a valid vote,” he said in a followup telephone conversation.

According to Robert’s Rules, abstentions do not count as votes, either affirmative or negative, and a majority vote is determined based on the number of votes cast. In this case, there were only two votes, both to approve the site plan.

It was an article by the New Hampshire Municipal Association that settled the matter. The NHMA reported that a similar case went to the New Hampshire Supreme Court, which ruled that even a single vote could determine the outcome if that was the only vote cast by a board, as long as the board had a quorum at the start of the meeting.

Sanbornton has a five-member board, with two alternates. Three members comprise a quorum, and there were four sitting on the board for Monday’s rehearing.

Distrust hangs over session

For the applicants, Tara Stewart and James Westlake-Toms, the Planning Board’s decision to rehear the case after having approved their site plan in October was a reason for concern in light of what had transpired to that point.

The site plan, submitted on Nov. 28, 2018, was accepted as complete by the Planning Board on Jan. 17, but the board denied their application, determining that holding events was not an accessory use of the property.

The couple raises alpacas and keeps chickens, and they have a recently rehabilitated barn that has been updated to include a bar area. They held their wedding on the property and decided it would be a great place to hold farm-to-table events, as allowed under the state’s agritourism law.

In hearing their application, the Planning Board determined that their farming operation was too small to qualify for agritourism, but the couple appealed the decision to the Zoning Board of Adjustment, which found it could be an accessory use. The site plan went back to the Planning Board which, on Oct. 17, approved it on a 3-0-2 vote, according to Laurin.

That Oct. 17 meeting was conducted by Vice-Chair Don Bormes, in the absence of Chair Debra Schneckloth. Prior to the hearing, the Planning Board attorney, Christine Fillmore, suggested that Bormes should step down because of a perceived bias in favor of the farm, but he declined to do so.

After Schneckloth learned of the vote, she approached the selectmen and dug into regulations to determine whether it had been a good decision. Meeting minutes and audio recordings obtained by the applicants showed that there were several discussions about the agritourism vote, at which Schneckloth, selectmen’s representative John Olmstead, Planning Board member William Ellis, and alternate Andy Sanborn expressed concerns about the business. Ellis, who had voted in favor of the application on Oct. 17, said he regretted his vote and would vote no if he could do it again. Sanborn stated his opposition to the plan.

As a result of their research, Schneckloth asked the board to rehear the site plan and it voted to do so on Nov. 7. Schneckloth persuaded Bormes to step down and asked Sanborn to sit in his place on the board.

To the applicants, it gave the appearance of stacking the deck against them.

At the start of Monday’s rehearing, Stewart asked Schneckloth, Olmstead, Ellis, and Sanborn to recuse themselves from the deliberations because of their prior comments. After Schneckloth read the reasons for recusal proscribed in state law, Sanborn admitted that he had expressed an opinion on the case and agreed to step down. Schneckloth, Olmstead, and Ellis said they felt no need to recuse themselves, but the chair gave the applicants a chance to postpone the meeting if they wanted a full board (five members) to hear the case. Stewart agreed to let the hearing proceed.

Rationale

Schneckloth assured the applicants that the rehearing was intended to make sure that the matter could be settled locally. She said Bormes’ refusal to recuse himself on Oct. 17 put the town at risk for litigation.

“There is no case law regarding conditions,” Schneckloth said. “We came to the conclusion it is in the best interest of the applicants and the town to pursue this avenue … for everyone involved.”

She said that, as a result of her research, there was “new information” that the board should consider before rendering its decision. That included requirements to comply with state building and electrical codes. She wanted that language to be included as a condition for approval.

Fire Chief Paul Dexter said he already is responsible for keeping up with state regulations as well as those of the town, and for referring issues to the state as necessary for compliance.

Ellis said he still thought they should place a requirement for a gravel parking lot to ensure the safety of those attending events, as well as allowing fire/ambulance access to the site.

The applicants objected because the area is part of the alpacas’ grazing grounds. They said the soil is well-compacted and poses no problem for vehicles.

Dexter also said it is not a problem, pointing out that gravel parking lots can have problems with dust and do not necessarily drain well. He also pointed out that the town is exempt from liability. Although “anyone can sue anyone for any reason,” towns carry immunity, he said.

Abutters Richard and Clare Mills wanted to limit the hours of operation and asked for an opaque fence to screen any porta-potties from their view.

The planning board clarified the language stipulating that events would occur only between June and September and would be limited to six events per year, occurring between 9 a.m. and 10 p.m., with no more than eight hours of music per day.

Although Stewart pointed out that there is a 75-foot buffer of trees on the Mills property and more than 100 feet of vegetation on their own property that would screen the porta-potties from the neighbors' view during summer foliage, she agreed to erect a fence on the north side of the toilets.

The board also discussed lighting in the parking lot, as well as concerns about a tree buffer from the driveway to the start of the Class VI road. Those were included as part of the conditions for approval, which also addressed on-site parking only. Schneckloth insisted on redundant language to specify that there will be inspections, including third-party inspections if required by the fire chief or health officer.

With those conditions in place, both Schneckloth and Olmstead voted to approve the site plan. Ellis and Jody Slack abstained from the final vote.

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