June 14, 2016, Mason, NH – The Mason Board of Selectmen has accepted the resignation of the Chairman of the Zoning Board of Adjustment. As stated in the selectmen’s acceptance letter, the resignation is in part the consequence from a health issue, but largely due to the issues surrounding a recently town adopted zoning change.
A citizen zoning petition was not submitted in the manner set out under state RSA’s due to claimed incorrect advice to the applicant by the town offices. The petition was subsequently “adopted” by the selectmen as their own in what appeared to be a hasty attempt to avoid further legal action.
The Selectmen’s Letter:
Office of Board of Selectmen
Town of Mason
16 Darling Hill Road – Mann House
Mason, New Hampshire 03048
(603) 878-2070 (603) 878-4892 Fax
June 14, 2016
Dear Mr. Rendle,
The Board of Selectmen accepts your resignation from the Zoning Board of Adjustment, and thanks you for your service to the Town. We wish you well in recovering from your concussion.
However, we take issue with the opinions you express in your letter of resignation, and with the many inaccurate statements of law and fact that are stated therein. We feel it is important to address these issues. The italicized paragraphs below are taken from your resignation letter verbatim. Our response follows.
A citizen presents a petition for a zoning amendment change pursuant to RSA 675:4 which requires that the petition must be submitted to the Select Board during the period of 90 and 120 days prior to the annual town meeting.
This statement accurately reflects the way a citizen may petition for a zoning change. It is an incomplete statement with respect to the various ways that a zoning ordinance may be amended.
The legislative intent of a citizen’s petition being heard by the deliberative town body at their annual town meeting is to ensure due consideration by citizens of this town before a ballot vote can be heard.
This statement contains a number of incorrect statements. First, a citizens petition for a zoning amendment is never “heard by the deliberative body” at the annual town meeting. A petitioned zoning amendment appears on the ballot portion of town meeting, pursuant to RSA 675:4, III. Zoning amendment proposals, petitioned or otherwise, are not debated on the floor at town meeting. The public has an opportunity for input on a petitioned zoning amendment at the planning board hearing required by RSA 675:4, II.
The zoning ordinance may not be proposed in the first instance by the Select Board or by petition. It cannot be enacted unless the Planning Board has exhausted mandatory suggestions of the master plan as described in RSA 674:2 and RSA 674:18.
Contrary to your assertion above, the board of selectmen can propose an amendment to a zoning ordinance, as authorized by RSA 675, I, which states, in relevant part, “Any proposed zoning ordinance as proposed by a planning board, board of selectmen, or village district commission shall be submitted to the voters of a town or village district in the manner prescribed in this section.” (RSA 657:3, I) (Emphasis added.)
The adoption of a Master Plan is a prerequisite for a New Hampshire town to adopt zoning generally. RSA 674:18. The minimum required sections for a master plan are set forth in RSA 674:2, II. The master plan sets forth general principles to follow in crafting a zoning ordinance. Id. See also Treisman v. Bedford, 132 N.H. 384 (1992). The Town of Mason adopted a master plan years ago, and last updated it in 2007.
Adoption of a zoning ordinance requires a planning board and town meeting vote. A Mason citizen who fails to file a petition within the time prescribed by statute recites allegations being given bad advice by town officials and an economic hardship. This citizen’s petition should be rejected and refiled.
Adoption of a zoning amendment requires a planning board hearing (RSA 675:3, II or 675:4, II) and a town meeting vote. RSA 675:4, III. This procedure was followed with respect to the recent amendment. A ballot vote, warned as a town meeting, is a town meeting under New Hampshire law even though the legislative body does not convene is one room and deliberate before voting. The people being the legislative body, the vote of the people is the legislative act of town meeting.
The balance of your statement regarding the appropriate response to an untimely petition is your personal opinion. The Board of Selectmen responded within its sound discretion and within our authority under the law.
Instead, the Board of Selectmen adopts the citizen’s petition language verbatim and submits petition as its own petition for a zoning ordinance amendment.
It is not correct that the board of selectmen adopted the citizen’s zoning petition verbatim. The citizen’s petition, rejected as untimely, would have amended the zoning ordinance to allow outdoor entertainment as a matter of right, without any requirement to go through the special exception or site plan process. The amendment submitted by the selectmen allows outdoor entertainment by special exception from the Zoning Board of Adjustment, and not as a matter of right. The difference is, that to get a special exception many criteria must be met and the ZBA can impose conditions on the approval. It puts outdoor entertainment in the same category as light industry, gas stations, and other uses that must be regulated to protect the public.
The effect of Board of Selectmen petition avoids deliberation by the Town of Mason at an Annual Town Meeting and causes petition to be forwarded to the Planning Board after a select board hearing only.
As explained above, regardless of how it gets before the voters, a zoning amendment is never deliberated at an annual town meeting. It is voted on at the ballot vote portion of town meeting. For example, recall the two zoning amendments voted on at this year’s town meeting. The Aquifer Protection ordinance and the lighting ordinance were not deliberated on when the legislative body convened on Saturday, they were voted on when the legislative body was called to a ballot vote the prior Tuesday.
The Board of Selectmen did not avoid deliberation on the outdoor entertainment ordinance. The planning board hearing that was held on the proposed amendment is the public deliberation prescribed by state statute.
At the Planning Board Hearing, Board of Selectmen presents their petition to change the zoning ordinance to benefit the private interest and to appease the hardship. A Selectman further creates a timeline as to how quickly the aggrieved citizen could appear before the Zoning Board of Adjustment without informing the public and the citizen of the public’s right to appeal a vote within 30 days.
The benefit of the selectmen proposing this ordinance was to avoid outdoor entertainment being allowed as a matter of right by ensuring that if it even passed a vote, the amendment would require any and every business seeking to have an outdoor entertainment use go through the special exception and site plan review process.
The Board of Selectmen has denied no one due process under the law, nor have we denied equal protection of the law to anyone. Every aspect of proposing and adopting the zoning amendment was undertaken according to statute. We are under no duty to notify the public of a statutory right to appeal a zoning amendment vote. If the legislature felt it necessary for towns to provide such notice, they would have prescribed it in the zoning statutes. They have not.
The Board of Selectmen engaged in a transparent, open, statutorily authorized process culminating in a vote of the town’s people. Turnout for the vote was quite large by local standards. The vote was properly noticed, and the issue certainly received vigorous debate by proponents and opponents, including town wide mailings by both. Although the Board of Selectmen proposed the ordinance, we could not predict, and did not attempt to influence, the outcome of the vote. Your intimation (by your reference to “USC section 1983 (a), (b), and (c)”) that the Board of Selectmen somehow violated the civil rights of the citizens of Mason is erroneous, and deeply offensive to this Board.
Board of Selectmen