TOWN OF SUTTON

Pillsbury Memorial Hall

93 Main Street

Sutton Mills, NH 03221

ZONING BOARD OF ADJUSTMENT

Approved Meeting Minutes

Wednesday, September 20, 2023, at 7:00 p.m.

 

Call to Order: Chair Lick called the meeting to order at 7:00pm and noted that there was a quorum. He then took roll.

Roll Call: Derek Lick (Chair), Melissa Ballinger (Alternate), Betsy Forsham, Donna Catanzaro, Zachary Brock

Absent: Sam Gordon, Marc Beauchemin

Melissa Ballinger was asked to sit in for Sam Gordon, who was absent.

Also Present: Dane Headley (Selectman), Glenn Pogust (Planning Board), Roger Wells (Planning Board), Mike McManus, S. Sutton, Sean Frost, N. Sutton.

 

Public Hearings:

1. Case ZBA 2023-10: Sean Frost, Map/Lot 07-794-090 Appeal from an Administrative Decision from the Sutton Board of Selectmen, June 5, 2023.

Mr. Frost said the Town of Sutton and its employees are not coming close to acting in accordance with state statutes and codes. He said the Town holds no rights or interest in his property, which is private; it is non-commercial. He said he has asked what duty he has to fill out a building permit and was only given a copy of the zoning regulations. All of these things only pertain to commercial applicants. Mr. Frost said he understands that the Town has a fiduciary duty to uphold the constitution. Chair Lick agreed that this was so. Mr. Frost said if everyone is taking an oath to uphold the constitution, they should all know and understand the constitution. He didn’t think the people who work on behalf of the Town understand any of the statutes of the Constitution and felt they were violating statutes and codes, and even felt that some were criminal in nature.

 

In June, Mr. Frost said he communicated about trespassers on his property, which is not constitutional.

Chair Lick asked what was on the property being discussed. Mr. Frost said it is where he lives, raises his family and keeps his things. He felt that the term “residence” was a commercial term.

 

Chair Lick asked Mr. Frost if it was true that the Town feels that their ordinance pertains to his property. Mr. Frost answered in the affirmative. He began to read through the NH building code. Chair Lick said the information he was reading had been included in the information Mr. Frost had submitted, which had been reviewed by the members of the Board. If he had any new information, it would be valuable to hear.

 

Mr. Frost read that “no bylaw or ordinance shall be contrary to the constitution or the state.” He offered that the Town can’t contradict the constitution. Mr. Frost referenced the NH annotated statute 47:17, 15: powers of City Councils. Chair Lick asked Mr. Frost if he felt the Town’s ordinances go against the State or US constitution. Mr. Frost said both. Chair Lick asked if there was a specific provision of the US constitution being violated. Mr. Frost said that it isn’t that the Town can’t have zoning ordinances, but they are misapplying it to the private sector. It was his belief that zoning ordinances are to be used for Town-owned property, state-owned property and commercial use. The Town’s ordinance is derived from statutes and the NH building code.

 

Chair Lick asked if Mr. Frost’s position was that his use of his property was not commercial and therefore the Town’s building and zoning ordinances are unconstitutionally being applied to his property. Mr. Frost said that they have to be careful of the word “use” as he felt that was a commercial term. His property is where he sleeps and eats. He didn’t think the Town of Sutton should even be talking to him and sending him threatening notices. The Town can’t regulate and control someone’s property.

 

Mr. Frost wondered if the Zoning Board was a board that hears both sides of an argument. He knew there were facts and laws to hear. He said he is one of the people of NH, who are sovereign. He added that there is no causation or injured party here and so the Town of Sutton has no jurisdiction or ownership over him. The Town has no business in telling him what he has to do with his property.

 

Mr. Frost asked Chair Lick if the State legislature owns his property? Mr. Lick answered that they did not. Mr. Frost asked if the Town of Sutton or the County owned his property? Chair Lick said that they did not. Mr. Frost asked if the State legislature had an interest in his property. Chair Lick said he would need to ask the State Legislature. Mr. Frost asked if the Town of Sutton had an interest in his property. Chair Lick said he wasn’t aware and the Town would need to be consulted. He was rebutting the presumption of commercial use. Mr. Frost said it is his right to have a place to live. He wondered why Sutton wants he and his wife to surrender his rights to allow for people to trespass on his property. The Town has not offered any of this information to him.

 

Mr. Frost said that the NH constitution allows for people to seek and maintain happiness.

 

Zachary Brock said the Zoning Board is not there to interpret the constitution. Mr. Frost may be right but it is not the decision of the Zoning Board to make these calls. They are there to interpret the zoning ordinance. Chair Lick agreed but said the reason they are there that evening is because Mr. Frost wants to ask if the Board of Selectmen’s decision applies to his property. Mr. Brock asked if they are determining if this is a place that requires a building permit. Chair Lick said it was.

 

Betsy Forsham said people are not allowed to trespass on someone’s property. Mr. Frost said that the building permit forces him to give permission for others to trespass. He said he does not own residential real estate as defined by NH statute. This was in his letter.

 

He read through several definitions found in the NH building code, which were also in his letter.

 

Mr. Frost said that he is not defined as a person in the NH building code. The code does not include the sovereign. He said there are a lot of definitions of “person” in NH statutes. He gave several examples. Mr. Frost noted that statutory definition supersedes the common law. The Towns have to be in compliance with the statutes.

 

Mr. Frost said he and his wife are not defined as taxpayers as it applies to real estate in NH. It is a God-given right to have a place to live. He felt the businesses in Town would be able to raise needed revenue to run the town through taxes.

Chair Lick asked Mr. Frost to focus on the reason he was there, as it did not have to do with taxes. He asked if there was anything Mr. Frost wanted to say that was not in his letters. Chair Lick thanked Mr. Frost for presenting his issue and added that if there was anything outside what he has provided to the Town, now was his chance to speak. He didn’t think there was any benefit of going through the provided materials that the Board had already reviewed.

 

Mr. Frost asked that the ZBA ask the Sutton officers and agents to cease and desist all legal actions against him and his family. He feels there is a misapplication of the statutes and that the Town is violating a number of codes, even criminally.

 

Chair Lick said that it is the Zoning Board’s job that night is to determine whether or not the Selectmen properly interpreted the Zoning Ordinance. It is not the Zoning Board’s determination on whether the ordinance, itself, is legal or not. Chair Lick offered that Mr. Frost had made his case well. They have to determine if the Sutton Building and Zoning Ordinance pertains to his particular parcel and use. That is where the Zoning Board is coming from.

 

Mr. Frost said in filing a building permit application provided by the Town, it would require him and his wife to surrender their property rights and deny their right to peace of their possession and allow trespassing anytime the Town wants. He asked Chair Lick if he’s read the building permit lately. Chair Lick said it had been a while since he had done so. Mr. Frost said that they have a lot of terms in the application that do not apply to him. He is not a commercial entity and they are not selling anything on his property. Residential is considered commercial in the eyes of the Town. He offered that he wasn’t even able to answer the first question without committing perjury.

Chair Lick thanked Mr. Frost for his presentation and asked if he had anything further to add. Mr. Frost said he did not. Chair Lick asked if there were any comments from the audience. There were none. Chair Lick said that it was time for the Board to deliberate.

 

Chair Lick closed the public portion of the meeting.

 

Chair Lick said that the goal is for the Zoning Board to review the Board of Selectmen’s decision to determine that Mr. Frost’s property is subject to the building and zoning ordinance, and based on construction going on at the property. They are down to the issue of definitions. There is a place he goes home to and stores his things and enjoys his life; the question is whether the use is residential in the town as determined by the ordinance and statute. Do the building and zoning regulations apply? In his opinion, the use Mr. Frost describes is a residential use. If there is construction of a structure, the Town needs to know about it. He felt the ordinance did apply to the property. Even a flag pole or shed requires review by the Town. Chair Lick shared that he put a shed up in his back yard and had to contact the Town, provide a sketch, and have the building inspector come by and sign off on it. If a structure is governed by the ordinance, certainly a residence or a place where one “goes home” should also be governed in that way.

 

Betsy said she read Article 2 section A and nowhere does it say that construction of any building; accessory, change of use, etc. is just for “commercial” use. She had to get a building permit for a deck to make sure she met the setbacks on her property. She added that the RA district Mr. Frost noted he lived in doesn’t mean they grow vegetables; that means the district he lives in has regulations on road frontage and acreage requirements. It has nothing to do with growing anything. The requirements for acreage are larger in this zone than that in the Residential zone, where the lots are more compact.

 

Zachary Brock said he had nothing to add.

 

Donna Catanzaro said she had nothing to add.

 

Melissa Ballinger said having read the building code, the definition of “residential” seems to fit. She felt that what Mr. Frost was describing was, in fact, a residence.

 

Chair Lick said if there are constitutional issues that are to be pursued beyond the Town level, it would be done before the courts. He doubted that there was any constitutional infirmary. He noted that if Mr. Frost wished, he could ask the Town to reconsider the decision again. If the Town does not change their decision, the Frosts can file with the Superior court. If the Town was in err, Mr. Frost does have an avenue to challenge the Town’s decision.

 

It was moved by Betsy Forsham and seconded by Zachary Brock to deny the appeal of an administrative decision and find that the Board of Selectmen properly interpreted the building and zoning ordinance to Sean Frost with regards to his use of the property at Map/Lot 07-794-090.

The motion was approved unanimously.

 

The vote was 5-0 to deny appeal of the administrative decision.

 

Chair Lick reiterated that Mr. Frost can request a rehearing on the part of the Zoning Board. At such a hearing, the Board will decide whether or not they will rehear the request for an appeal. If the Board decides to rehear, they will deliberate. Afterwards, if the Frosts are still unhappy with the result, they have 30 days to appeal to the Superior Court on their decision. Peter Stanley noted that no abutter’s notices are needed for a re-hearing.

 

Mr. Frost asked for all the names of those on the Board. They obliged and gave him their names.

 

Mr. Frost asked the Board if they were going to look up any statutes or codes. Chair Lick said if Mr. Frost wished to refile the Board will review whatever he submits to them. He is unable to provide legal advice. He suggested that Mr. Frost seek out an attorney so he can understand his rights. The Zoning Board will review any new material that he submits to them if a rehearing is requested.

 

Mr. Frost asked the Board if they all took oaths to uphold the constitution. The answer from the board members was yes, and that they also took an oath to uphold the laws of the town.

 

2. Review of Minutes

It was moved by Zachary Brock and seconded by Betsy Forsham to approve the minutes of August 16, 2023 as circulated. The motion was approved unanimously.

3. Planning Board Update: Village District Regulation Proposal

Glenn Pogust and Roger Wells were present to provide a slide show of suggested updates to the zoning ordinance as it pertains to the village districts. The goal is to maintain the character of the villages while promoting growth both in business and housing opportunities. The presentation would be given at a meeting to interested citizens on September 26, 2023.

 

It was moved by Melissa Ballinger and seconded by Donna Catanzaro to adjourn the meeting. The motion was approved unanimously.

 

The meeting adjourned at 8:43pm.

 

Respectfully submitted,

 

Kristy Heath, Recording Secretary Town of Sutton