Permit to build in Grafton?

[president]

I just hope they give a final summary after they are done.

To answer your original question....

Grafton has building notification. It was passed by popular vote in 1979, as article 14, and amended in 1988 with article 24.
A Notification of Constuction is reviewed and approved by the selectmen prior to commencment of such construction. Does not apply to non-inhabited outbuildings, however the selectmen request that a notification in writing of such construction be submitted to them.

[president]

You are talking about the PLANNING BOARD.  They have the authority to refuse to allow anyone to SubDivide land into lots smaller than 2 acres.
THAT IS NOT ZONING.

No I am not. I am talking about article 12, 1976 town meeting.

Please re-read Mary Gere's letter.

You re-read it. It proves my point.

 

That "Ordinance" you saw... was that, in actuality, a Warrant Article establishing the Planning Board?

No. The Ordinance was Article 12, 1976 town meeting. The planning board was already established at that time.

And then, since the Planning Board limits Lot sizes when land is SubDivided (http://www.gencourt.state.nh.us/rsa/html/LXIV/674/674-35.htm), you erroneously conclude that that is Zoning.

No, I didn't conclude it. The lawyers that looked into the effects of abolishing the planning board concluded it is a zoning ordinance. Both sides seem to agree with this. You are the only one I am aware of that is disputing it.

You claim to have seen a "Zoning Ordinance" that was passed in Grafton in the 1970's.  It is important for us to see that please.

If it is important to you to see it, do some fucking research. Stop making shit up. You are guessing.

Does it, as you claim, prodice for the establishment of a Zoning Board of Adjustment?  I bet you $100 it does not and is therefore NOT a Zoning Ordinance.  Wanna bet?  Huh?  Bet me?

I never made that claim. How about we make a bet on something I claimed, or one that the things that you claim. But you seem to be chaning your claim. The law you site that requires the provision for the establishment of the ZBA was made after the Grafton ordinance was passed.
http://www.gencourt.state.nh.us/rsa/html/LXIV/673/673-1.htm

673:1 Establishment of Local Land Use Boards. ?
IV. Every zoning ordinance adopted by a local legislative body shall include provisions for the establishment of a zoning board of adjustment
Source. 1983, 447:1. 1992, 64:5, eff. June 19, 1992.

So why don't you look into what the law was in 1976, and stop quoting today's law about adopting a zoning ordinance?

We agree that Grafton never established a Zoning Board.  Therefore if they thought they passed a Zoning Ordinance in the 1970's, it has no legal effect.

Sure it does. The legal effect is that the ordinance would not go away as soon as the planning board is abolished.

again
http://www.gencourt.state.nh.us/rsa/html/LXIV/673/673-19.htm   

673:19 Effect of Abolishing Planning Boards. ? Upon the effective date of the abolition of a planning board, all land use control activities in the municipality formerly performed by the planning board shall cease. Existing zoning ordinances shall remain in effect following the abolition date for a period not to exceed 2 years from the date of such action, but no amendment to a zoning ordinance requiring action by the former planning board shall be permitted.

Are you saying the 2 acre min would go away as soon as the planning board is abolished?

[president]

You want every i dotted, okay, the Voters of Grafton never passed a Zoning Ordinance because they never passed an Ordinance that included provisions for the establishment of a zoning board of adjustment.

I just want the truth.

(#2 is written down for you in New Hampshire Law -
http://www.gencourt.state.nh.us/rsa/html/LXIV/673/673-1.htm)

But that was written after the Grafton ordinance was passed in 1976. Do you know what the law was in 1976?

[zackbass]

But that was written after the Grafton ordinance was passed in 1976. Do you know what the law was in 1976?

No, I don't.  But I do know that several such Laws have been deemed to be invalid and utterly without legal force or effect because of that new Law, so if Grafton did pass a deficient Zoning Law in 1976 that would not be uncommon - several Towns have done that.

[zackbass]

Are you saying the 2 acre min would go away as soon as the planning board is abolished?

Yes, it definitely would, since no one would be legally required to pay the slightest mind to it.  If you have a different meaning of "go away", such as "it is still in effect in some ineffable sense", then yes by the wording of the RSA it would still be "in effect" - but utterly ineffective and ineffectual and without legal effect of any kind.

[zackbass]

If it is important to you to see it, do some fucking research. Stop making shit up. You are guessing.

Sorry, I don't have access to the text of any 1976 Warrant Articles.  Do you?  If you do, then please spill the beans, we need to know.  If you don't, then you are guessing as much as I am, and/or relying on your possible faulty memory.
You do sound like you are right, but how can we know YOU aren't making this shit up or in honest error?  I provide Web links whenever possible, or quote from whatever documentation I have here.  Please reciprocate.

[zackbass]

But how can they if they disagree?

Oh, we will agree on something in the end, since your President is an honorable opponent (one I cherish far more than many who were my "friends").  Part of it is semantic, part of it may be faulty recollection, whatever, but it will be hammered out, although like making sausage it may not be pleasant to watch.

[president]

But that was written after the Grafton ordinance was passed in 1976. Do you know what the law was in 1976?

No, I don't.  But I do know that several such Laws have been deemed to be invalid and utterly without legal force or effect because of that new Law, so if Grafton did pass a deficient Zoning Law in 1976 that would not be uncommon - several Towns have done that.

Do you have any links to the court cases?

[president]

Are you saying the 2 acre min would go away as soon as the planning board is abolished?

Yes, it definitely would, since no one would be legally required to pay the slightest mind to it.  If you have a different meaning of "go away", such as "it is still in effect in some ineffable sense", then yes by the wording of the RSA it would still be "in effect" - but utterly ineffective and ineffectual and without legal effect of any kind.

As I understand it, whoever does the plat recording for the state would still enforce the 2 acre lot size min ordinance for 2 years after the planning board went away. It would be hard to subdivide without the plat of subdivision.

[president]

If it is important to you to see it, do some fucking research. Stop making shit up. You are guessing.

Sorry, I don't have access to the text of any 1976 Warrant Articles.  Do you? 

You have just as much access as me. But I need to check on Tim's purchase anyway....

All I have is my faulty memory and bad notes.

The ordinance reads:
Henceforth, lot size for dwellings shall be a minimum of two acres.

Article 12, 1976 reads something like this:
To see if the town will vote for an ordinance for the minimum lot size of two acres....and I think it had the wording of the ordinance

Take note that the ordinace only applies to lots for dwellings....sound like land use to me.

If it is just an ordinance, and not a zoning ordinance, it does not go away if the planning board is abolished.

If it is a "deficient" zoning ordinance, it is still a zoning ordinance, and would go away within two years of the abolishment of the planning board.

[zackbass]

Do you have any links to the court cases?

http://www.deeringconnection.com/BackIssues/October-2002-insert.pdf
"Without a ZBA, a zoning ordinance would be invalid and could not be enforced.
As was said by Associate Justice Sherman Horton of the New Hampshire Supreme Court, dissenting in the
case of Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 246, 614 A.2d 1048, 1052 (1992) the
ZBA is the 'safety valve' of land use law, which allows 'waiver of the strict letter of the zoning
ordinance [in individual cases] without sacrifice to its spirit and purpose.'"

You can't petition for a Variance without a ZBA, and so you can't appeal the (non-existent) decision denying your request... NH considers that UnConstitutional:

http://www.courts.state.nh.us/supreme/opinions/2004/bacon005.htm
"This test, crafted with an eye towards Justice Horton?s dissent in Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 245-49 (1992) (Horton, J., dissenting), was designed to loosen the strictures which 'have made it essentially impossible for a [ZBA], honoring the letter of the law . . . to afford the relief appropriate to avoid an unconstitutional application of an otherwise valid general regulation.'"

[zackbass]

If it is just an ordinance, and not a zoning ordinance, it does not go away if the planning board is abolished.

I suspect it is NOT a Zoning Ordinance.  Yes, Zoning covers both "Area" and "Use" restrictions, but as I have said, a Planning Board also has authority to restrict lot sizes AT THE TIME OF SUBDIVIDING.
But when the Planning Board is abolished, so is its authority to restrict lot sizes!  Therefore any restriction created by that "Ordinance" would go away immediately.

If it is a "deficient" zoning ordinance, it is still a zoning ordinance, and would go away within two years of the abolishment of the planning board.

Such a "zoning ordinance would be invalid and and could not be enforced" (see Horton, above).  Therefore it has "gone away" long ago; it was never enforceable.

[zackbass]

Note that Grafton has no Capital Improvement Plan:
http://www.nhes.state.nh.us/elmi/htmlprofiles/pdfs/grafton.pdf

Now read http://www.strafford.org/legalupdate_2005.pdf:
"MDR is the developer of a fourteen lot subdivision and was originally issued five
building permits, but was later informed that under the growth control ordinance no
more permits could be issued for quite some time. MDR also sued the town, arguing
that the growth control ordinance was invalid because the town had never legally
adopted a capital improvement program (CIP), which is a prerequisite to the adoption of
a growth control ordinance under RSA 674:22. The trial court agreed that the town had
never validly adopted the growth control ordinance, and the supreme court had upheld
that ruling in an earlier case."

Note that, since in the case of Grafton a Zoning Ordinance is probably also UnConstitutional because of the lack of a Zoning Board of Adjustment (see Horton), you can probably even recover Damages in Court, since it then constitutues a Taking:
http://www.strafford.org/legalupdate_2005.pdf
"The court clarified some language in an earlier case by ruling that money
damages are only available to a plaintiff where the ordinance at issue is found to be
unconstitutional and constitutes a taking (temporary or permanent) of the plaintiff's
property. If the ordinance is merely invalid for some reason other than unconstitutionality,
and thus unenforceable, as was Fremont's growth control ordinance, the only
remedy the successful landowner is entitled to is an order forcing the town to issue the
building permits that were erroneously denied."

[zackbass]

Grafton has building notification. It was passed by popular vote in 1979, as article 14, and amended in 1988 with article 24.
A Notification of Constuction is reviewed and approved by the selectmen prior to commencment of such construction.

Big deal.  Like Parental Notification.  Tell them you're doing it and do it.
Does Article 14, or Article 24, say what happens if the SelectPersons decline to Approve the Notification?  That sounds weird... Approve a Notification... what bull.  You comply with the Notification requirement, you build, what can they do?  There is no place to Petition for a Variance or to Appeal!

The State of New Hampshire does now have a State-Wide Building Code, and it is within the power of the Town to create a Building Inspector and then require Building Permits... but they have not done so.
Note that, although there is a State-Wide Building Code, ALL administration and enforcement is LOCAL (BY STATUTE!), so if the local Town Government is unwilling or unable to properly administer or enforce the Code, you need not comply; the State cannot (BY STATUTE!) step in against you:

http://www.gencourt.state.nh.us/rsa/html/XII/155-A/155-A-2.htm

155-A:2 State Building Code. ?
  ....
    IV. To the extent that it does not conflict with any other provision of law, the issuance of permits and the collection of fees pursuant to the state building code is expressly reserved for counties, towns, cities, and village districts.
  ....
    X. Nothing in this chapter shall be construed to permit or encourage the state to initiate or assume an independent role in the administration and enforcement of the New Hampshire building code for a building or structure that is not owned or operated by the state unless otherwise authorized by law.

[president]

Do you have any links to the court cases?

http://www.deeringconnection.com/BackIssues/October-2002-insert.pdf
"Without a ZBA, a zoning ordinance would be invalid and could not be enforced.
As was said by Associate Justice Sherman Horton of the New Hampshire Supreme Court, dissenting in the
case of Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 246, 614 A.2d 1048, 1052 (1992) the
ZBA is the 'safety valve' of land use law, which allows 'waiver of the strict letter of the zoning
ordinance [in individual cases] without sacrifice to its spirit and purpose.'"

You can't petition for a Variance without a ZBA, and so you can't appeal the (non-existent) decision denying your request... NH considers that UnConstitutional:

http://www.courts.state.nh.us/supreme/opinions/2004/bacon005.htm
"This test, crafted with an eye towards Justice Horton?s dissent in Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 245-49 (1992) (Horton, J., dissenting), was designed to loosen the strictures which 'have made it essentially impossible for a [ZBA], honoring the letter of the law . . . to afford the relief appropriate to avoid an unconstitutional application of an otherwise valid general regulation.'"

How about a case that deals with a town that has a zoning ordinace but no ZBA. And a link to the decision please.