Cog Railroad building new platform at the base station

[peakbagger]

Cog Railroad building new platform at the Waumbek station

The Coos County Zoning Board has a meeting on August 30th to review an application for a zoning variance for the Cog to build a new 28' long by 110 feet platform with a portion of it within the setback (presumably with the abutting WMNF)
https://www.cooscountynh.us/sites/g/files/vyhlif4291/f/agendas/aug_30_agenda.pdf Prior to a several years ago this never would have come up, but Coos county has been enforcing planning and zoning rules of late. The application or any details are not posted on the Coos County planning site. it is difficult to determine if it would meet the variance guidelines that the state has issued in the past. The ZBA only meets when there is business before them (which is rarely). They would have to rule for a similar variance if the Lizzies Station project is applied for so this would be an opportunity to see how the board handles the application for this variance.

When I was involved in zoning for a NH town, the guidance for a variance is that most variances should be denied as their intent is misunderstood by the general public. A variance is setting aside the published intent of zoning ordinances. Economic hardship/opportunity was not a valid reason for a variance. Generally, what would be accepted was a defect with the land that could not be foreseen by the owner. An example would be a landowner of a property that is impacted by a flood event during their ownership making part of the property unbuildable, the owner then can go for a variance of other zoning requirements to be able to build a structure within other setbacks to compensate for the loss of usable property. What generally would not fly is a person picks up a property with an obvious defect and files for a variance to build within setbacks.

The WMNF rarely gets involved with zoning disputes so I expect that there will be no abutter comments, in this case the zoning board is supposed to uphold state guidelines but in many boards the temptation is to rule for the applicant.

 

[peakbagger]

I was wrong on the original title and have corrected it, the hearing tomorrow evening is for a variance at the so called Waumbek station roughly half way up the mountain (below treeline). https://www.concordmonitor.com/Cog-Railway-seeks-to-expand-Waumbek-station-47794975

The referenced three sheds were permitted after they were built a few years ago when the county realized they were built without a permit. As the article describes the proposed project, the definition of what the allowed criteria for a variance http://www.gencourt.state.nh.us/rsa/html/LXIV/674/674-33.htm has changed since I last sat on a NH zoning board. As this lecture describes, the criteria has changed over the years https://www.nh.gov/osi/resource-lib...ive-variance-criteria-in-the-21st-century.pdf

Ultimately it comes down to what the board and ultimately the supreme court defines as unnecessary hardship?. As the lecture notes, that is a point of contention over the years. IMO this ruling will factor in someway on the Lizzies Station project if and when it appears before the zoning board as it also, as currently described, will request a variance from setbacks.

 

[peakbagger]

The variance was approved by two members of the board Tuesday evening. only the vice chairman and two members showed up at the meeting. I do not know how many members a full board has. Under typical ZBA rules the chairman does not vote except for ties so it came down to two members voting yes with the vice chair (acting as chairman) stating after the vote that he would have voted against it, but he did not have to vote as the members present had voted unanimously. Prior to the vote during the hearing the cog submitted quite a few documents (not available on the website) and there was definitely confusion on exactly what was being proposed. The cogs lawyer represented that the USFS supervisor and other staff could be represented as not having objections to the variance. IIt is quite a large structure, the planning bord had previously approved a narrower platform within setbacks which is reportedly nearly complete, the variance was to make it wider but that would require encroaching into the setbacks from the sidelines of the 99 foot strip. The stated goal for the platform is to make their visitor experience safer especially in winter as with the usage, there is mud and ice and they have had several injuries of guests as there was not suitably platform space available. There was a fairly large public turnout for a ZBA hearing. There were public questions/comments, mostly opposed and none in support of the variance. There were some cog supporters present but my guess is most were opposed although some did not speak. It is tough for the public to ask meaningful questions without having access to the extensive application which is not posted on the website. It appeared that the members of the board were also unfamiliar with the documents until the hearing.

During the voting portion of the meeting, one member wanted to table the vote until a site visit could be done as he was confused on the request for variance and the impact on the abutter. There were no clear plans presented at any point rather, there were google maps shots and an artist's rendering. It required a second and there was not one as the other member stated it was just ten feet and trees so he was ready to vote, so they proceeded with the vote.

Lots of interesting history was brought up by the cog that really was not relevant to the case but interesting. The cogs original state charter gaves the cog the rights and methods to take additional land outside the 99 foot strip up the mountain to support cog operations. Unfortunately, the Cogs lawyer commented, the cog cannot use this right as the WMNF is setup that it cannot be seized under eminent domain so its a moot right since the cog in that area is surrounded by the WMNF Reference was made to the Cog originally owning the land at the summit and then selling the majority of the land at the summit to Dartmouth College while retaining some land for the Cog operations and many rights. No doubt another interesting story if the rational and the background for the sale could be established but I guess we get to wait until the next hearing for that opportunity.

Given the short roster of the board, it probably worked to the advantage of the cog. Given the chairman was not present, it's at least four and most likely a minimum of five members and usually there are alternates that can step in. Thus, with a five-member board with two not present, a unanimous vote of the board came down to 2 people. These are volunteer positions, and my prior experience on a board was it was tough to get a full board during the summer, especially on a holiday week. Like many local positions, filling these volunteer positions is tough and effectively anyone who wants to be on the board can usually get appointed. The problem is this is a fairly complex position interpreting legal precedents typically without access to counsel by the board. They can get access to counsel but typically the budget for these boards are minimal. The temptation is avoid bringing in counsel as it delays the process to a future meeting. The planning board relies on a paid "expert" to guide them on the planning approval process but the ZBA does not have that resource. Therefore, applicants can bring a lawyer like the Cogs owner did (the cogs owner is also a lawyer),and present a case with legal complications to a board that are not lawyers and may or may not be experienced or educated enough to know what they are ruling on beyond what is represented by the lawyer presenting the case.

The same variance process will most likely be required for the proposed Lizzie's station, when a formal application is applied for. IMO unless there is organized opposition, with counsel involved and someone to formally research the application prior to the meeting its likely that the outcome will be the same for Lizzie's station and it will fall to the planning board to ultimately approve or not approve the project.

 

[skiguy]

The variance was approved by two members of the board Tuesday evening. only the vice chairman and two members showed up at the meeting. I do not know how many members a full board has. Under typical ZBA rules the chairman does not vote except for ties so it came down to two members voting yes with the vice chair (acting as chairman) stating after the vote that he would have voted against it, but he did not have to vote as the members present had voted unanimously. Prior to the vote during the hearing the cog submitted quite a few documents (not available on the website) and there was definitely confusion on exactly what was being proposed. The cogs lawyer represented that the USFS supervisor and other staff could be represented as not having objections to the variance. IIt is quite a large structure, the planning bord had previously approved a narrower platform within setbacks which is reportedly nearly complete, the variance was to make it wider but that would require encroaching into the setbacks from the sidelines of the 99 foot strip. The stated goal for the platform is to make their visitor experience safer especially in winter as with the usage, there is mud and ice and they have had several injuries of guests as there was not suitably platform space available. There was a fairly large public turnout for a ZBA hearing. There were public questions/comments, mostly opposed and none in support of the variance. There were some cog supporters present but my guess is most were opposed although some did not speak. It is tough for the public to ask meaningful questions without having access to the extensive application which is not posted on the website. It appeared that the members of the board were also unfamiliar with the documents until the hearing.

During the voting portion of the meeting, one member wanted to table the vote until a site visit could be done as he was confused on the request for variance and the impact on the abutter. There were no clear plans presented at any point rather, there were google maps shots and an artist's rendering. It required a second and there was not one as the other member stated it was just ten feet and trees so he was ready to vote, so they proceeded with the vote.

Lots of interesting history was brought up by the cog that really was not relevant to the case but interesting. The cogs original state charter gaves the cog the rights and methods to take additional land outside the 99 foot strip up the mountain to support cog operations. Unfortunately, the Cogs lawyer commented, the cog cannot use this right as the WMNF is setup that it cannot be seized under eminent domain so its a moot right since the cog in that area is surrounded by the WMNF Reference was made to the Cog originally owning the land at the summit and then selling the majority of the land at the summit to Dartmouth College while retaining some land for the Cog operations and many rights. No doubt another interesting story if the rational and the background for the sale could be established but I guess we get to wait until the next hearing for that opportunity.

Given the short roster of the board, it probably worked to the advantage of the cog. Given the chairman was not present, it's at least four and most likely a minimum of five members and usually there are alternates that can step in. Thus, with a five-member board with two not present, a unanimous vote of the board came down to 2 people. These are volunteer positions, and my prior experience on a board was it was tough to get a full board during the summer, especially on a holiday week. Like many local positions, filling these volunteer positions is tough and effectively anyone who wants to be on the board can usually get appointed. The problem is this is a fairly complex position interpreting legal precedents typically without access to counsel by the board. They can get access to counsel but typically the budget for these boards are minimal. The temptation is avoid bringing in counsel as it delays the process to a future meeting. The planning board relies on a paid "expert" to guide them on the planning approval process but the ZBA does not have that resource. Therefore, applicants can bring a lawyer like the Cogs owner did (the cogs owner is also a lawyer),and present a case with legal complications to a board that are not lawyers and may or may not be experienced or educated enough to know what they are ruling on beyond what is represented by the lawyer presenting the case.

The same variance process will most likely be required for the proposed Lizzie's station, when a formal application is applied for. IMO unless there is organized opposition, with counsel involved and someone to formally research the application prior to the meeting its likely that the outcome will be the same for Lizzie's station and it will fall to the planning board to ultimately approve or not approve the project.

Thanks for posting this. After multiple decades of living in New Hampshire this is a prime example of the dysfunctional town government we seem to be stuck with at times. Believe me I would not personally want some of the voluntary positions and for that matter elected positions that many serve in this State. But I do appreciate the service that they provide when they show up. My biggest gripe is that important votes occur without full representation by volunteer and elected members of a given board. When important decisions like this are made without full representation it really IMHO taints the process. Also, the reference to the legal rhetoric being reviewed by people who are not acquainted with the verbiage and without proper Council is majorly discerning.

 

[peakbagger]

The state is trying to rectify the long term training issues with planning and zoning boards by offering voluntary training and certification to those who are interested and willing to take it. It is not mandatory. When I first went on a zoning board as a member there were some pretty good publications that were available for those interested. In my non legal opinion there was some flaws in what was represented to the ZBA as the rational for the setback variance, but I was not the applicant or a member of the board. I suspect that if the board had access to counsel, they would have realized that there are other opinions by lawyers different than what was represented. Hard to keep that in mind on a hot night in Lancaster when a good lawyer is representing otherwise. As I commented in my prior post, I hope this is not the case with Lizzie's station and that there is some other counsel in the room that has had a chance to review what no doubt will be complex application in advance.

I suspect you would get a kick and also some concern out of the story of the Town in Grafton and what happened when it became a target for the Free State movement. The book is a "A Libertarian walks into a Bear." Here is an interview with the author https://www.vox.com/policy-and-poli...mpshire-libertarians-matthew-hongoltz-hetling
The book is mostly in observational style with enough historical context to make it interesting. Ultimately it did not work out so well for the bears although for a-while it looked like they were winning

 

[Salty]

I do not know how many members a full board has.

4 members, a vice-chair and a chair.

https://www.cooscountynh.us/planning-board

 

[ChrisB]

It seems more than ironic that we have over 400 state legislators!

 

[skiguy]

It seems more than ironic that we have over 400 state legislators!

I was thinking the same exact thing when I was typing my last post. It doesn’t add up or it adds up too much.

 

[skiguy]

I suspect you would get a kick and also some concern out of the story of the Town in Grafton and what happened when it became a target for the Free State movement. The book is a "A Libertarian walks into a Bear." Here is an interview with the author https://www.vox.com/policy-and-poli...mpshire-libertarians-matthew-hongoltz-hetling
The book is mostly in observational style with enough historical context to make it interesting. Ultimately it did not work out so well for the bears although for a-while it looked like they were winning

This does look like a good read. “A disconnection to reality” says a lot. Here in Conway I have seen more than once board members voting on emotion rather than on fact. I guess everyone does not go to Law School. But some good ‘ole common sense would be nice and know how to use it.

 

[dug]

This does look like a good read. “A disconnection to reality” says a lot. Here in Conway I have seen more than once board members voting on emotion rather than on fact. I guess everyone does not go to Law School. But some good ‘ole common sense would be nice and know how to use it.

Common sense to one may be uncommon nonsense to another

[No I have no idea what that means, just sounded deep and thought it was funny]

Hope everyone enjoys the weekend in whatever endeavors they partake on.

 

[maineguy]

It seems more than ironic that we have over 400 state legislators!

It is the 4th largest lower House in the English speaking world

 

[CaptCaper]

It is the 4th largest lower House in the English speaking world

If the Cog meeting was that important they would of showed up. They were okay with all what was going to go down so why show up that night.

I know that it doesn't bother me about the Cog's agenda that night and I might of not of showed up if my grandson was up visiting.