Letter – Zoning and Selectmen

Recent letters to the Grapevine critical of zoning enforcement do not square with basic civics. John Adams, a Founding Father and our second President observed that we are nation of laws, and not of men. That is, whether or not one agrees with the law one is bound by it, no matter who they are or think they are. The New Hampshire Constitution says that “When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.” NH Const. Part. I, Art. 3.

One of the ‘surrenders of natural rights’ that we, the people of the Town of Mason, have made, willingly and through the political process, is the adoption of zoning laws in 1967, a building code in 1957, subdivision regulations in 1974, and site plan review regulations in 1986. The constitutional “equivalent” we enjoy is the orderly development of Mason, and freedom from having noxious property uses next door to quiet residential uses.

All our zoing ordinances and planning regulations are available for review at the Mann House, and online at www.mason-nh.org. You can purchase an up to date copy of the zoning ordinance and building code at the Selectmen’s office. There are very few places in our state without land use ordinances and regulations, and no one should be surprised that such laws exist and apply to their land.

The recent letters, one regarding radio towers and the other regarding fire debris, both relate to matters that are, at least on their face, clearly addressed by the zoning ordinance.

Article IXX of the zoning ordinance, adopted in 2005, governs telecommunications facilities. Amateur radio towers are exempt under Federal law, as noted in Item 5 of the ordinance. Application for commercial telecommunication towers must be made to the planning board. Under some circumstances a special exception and/or site plan may also be required for commercial use of the property. Article IV, Section B, of the zoning ordinance states that “No owner or occupant of land shall permit fire or other ruins to be left, but shall remove the same within one year.” In deference to the letter writers, there may be valid reasons these laws do not apply to their situation, such as misinterpretation of the law or the facts, which brings up another fundamental civic concept, due process of law. Due process is your right to a legal process by which you can contest the action of the government against your person or your property. Due process is guaranteed by the First and Fourteenth amendments of the United States Constitution and Article 14 of the New Hampshire Constitution. If you receive a cease and desist order for a zoning violation, and you believe that it was wrongfully issued, or was based on an unconstitutional or improperly enacted law, you have a right to
be heard. In most cases, there is a clear process from the local level to the State courts that must be followed. Anyone aggrieved by a decision of our Board of Selectmen has the right to contest the decision through the legal process, all the way up to the Supreme Court if necessary.

In Mason, the Board of Selectmen is responsible for enforcement of the zoning ordinances. We are fortunate to have a hard working and diligent board. On behalf of various clients, I have fought, won, lost, and settled various zoning disputes with the Mason Selectmen. Throughout those sometimes vigorously debated contests, I have never found the Selectmen, or Town Counsel, Silas Little, to be in any way unprofessional, vindictive or arbitrary in their efforts. I do not feel that Mason’s Selectmen deserve the excoriation delivered in last month’s letters. Those complainants appear to be, and may actually be, in violation of the zoning law. By enforcing the zoning laws, the Selectmen are not only doing their jobs, they are doing the will of the people as expressed in the zoning laws. We should all be glad of that.

Sincerely,
Charles V. Moser

8 comments for “Letter – Zoning and Selectmen

  1. Sherri
    January 4, 2011 at 3:55 pm

    Hi — I have just found this thread and thought I would comment. I do not have any issues with the zoning ordinances or enforcing them. I have to agree with Matt — I don’t think either of us have issues with the laws that are in place. What is concerning is that, in a small town like Mason where I am NOT a stranger, the first step is to send an attorney’s letter. I think John Lewicke said it perfectly — that is a hostile act. How could it be perceived otherwise? People came to my land and inspected it! Without talking to me and simply asking me what is going on. This is all about enforcement and not at all about the laws. Many of us are here because we don’t want to be abused by a faceless bureaucracy. Having Peg Gilmour say to “let it go” like I am sitting and feeling depressed is rediculous to say the least. There are two of us publicly objecting to how our elected officials have decided to conduct the business of the town. Yes — we were ignorant violators and we both rectified the violation. But we are also saying that we want to be treated with respect and dignity. A simple phone call or email would have taken a lot less time and money. Very simple really.

  2. Matt
    December 11, 2010 at 12:02 pm

    Charles Moser,

    In my first letter to the Grapevine, I started of by saying that I was not in compliance with the bylaw and
    It was my mistake to not look into it.

    I also never said that the town Attorney wasn’t doing his job or that he was unprofessional.
    I simply stated that it was ridiculous for him to be there in the first place. It was a huge waste of money!

    The point that I’m trying to make is that we have people in town that lie to your face
    and that the bully type behavior and scare tactics are wrong.

    When bylaws are enforced, don’t you think that they should be enforced for everyone?
    I never saw or heard back from anyone how this whole Wagoner tower deal went down and in plain English:
    Somebody is hiding something!

    Did you ever even read what I said?

    -Matt Strelow

  3. Bazil
    December 3, 2010 at 9:29 am

    I think the point of the article was the tone of how the law was enforced rather than the law itself. However some of us may disagree with some of the specifics of the laws like having to remove fire debris that is not visible from the street.

  4. Charlie Moser
    November 22, 2010 at 2:35 pm

    Hi Jacob,

    I am happy to hear you are doing your fomenting as resident of town. Regarding your perspective, please introduce yourself to me at church again, and we can arrange lunch to discuss perspectives. (I may still read the article you cited.)

    -Charlie

  5. Jacob
    November 22, 2010 at 12:46 pm

    Hi Charlie,

    I guess I have been “outed” 🙂

    Yes, I wrote those words a long time ago. I consider myself a Christian anarchist and pacifist in the tradition of Leo Tolstoy. At the time I had written those words you quoted, I considered myself an anarchist but had yet to discover Jesus.

    However, I am not an out-of-towner. I live in Mason, and in fact we have met at church.

    If you want to understand my perspective, this Harper’s magazine article on Tolstoy is a good place to start:

    http://www.harpers.org/archive/2010/02/hbc-90006460

    Jacob

  6. Charlie Moser
    November 22, 2010 at 10:49 am

    Jacob,
    One more thing. You don’t live here or own property in Mason, do you? Are you an out-of-towner fomenting anarchy in Mason? A person with your name is credited with writing “I call myself a libertarian, and sometimes I am an anarchist, depending on who I am talking to. … In fact, I consider myself an anarchist only as an extension of being a libertarian. … Show me the government that does not infringe upon anyone’s rights, and I will no longer call myself an anarchist.” Did you write those words?
    Personally, I regard anarchy as a threat to liberty.
    –Charlie Moser

  7. Charlie Moser
    November 20, 2010 at 3:39 pm

    Hi Jacob,

    Very nice response to my letter. I agree with you that conscience may trump the law. We owe a debt to Thoreau, Gandhi, Martin Luther King and others who have fought unconscionable laws through the legal process and through civil disobedience. I had no idea a letter regarding zoning would take us to the brink of revolution so quickly!

    I also very much agree with you regarding the importance of community. That is why I try to participate in public life. It is why I know all my neighbors and have never had a problem with them that was not resolved with a phone call. But not all folks are like you and me. I don’t think being asked by the enforcing authorities to cease violating the law, even with the threat of a fine, is harsh. It seems like a logical first step, giving someone a chance to stop the behavior before more serious consequences ensue. Then you have the choice, as you mention in your letter, of whether you want to assume the great personal risk in not following the law.

    I also agree with you (this is agree #3) that “zoning laws are not the will of the people.” You are right, I should have said that zoning laws are the will of the majority of people. All our laws are the will of the majority of the people, and there are folks who dislike most any law. Are we not fortunate to have democracy? Majority rule. I thought that the ability of the majority of the people to makes laws binding on all of us, was a basic principal of American society. And if you don’t like the law you have all kinds of freedom to try change it–you can lobby, support candidates who agree with you, sue for change in the courts, write letters to the Grapevine, get elected to office. Don’t we really agree that we will be bound by the laws of the land, even while we work to change those laws?
    Sincerely,
    Charlie Moser

  8. Jacob
    November 19, 2010 at 1:34 pm

    Hi Charles,

    I disagree with your premise: “That is, whether or not one agrees with the law one is bound by it, no matter who they are or think they are.”

    I think we can all think of laws, current or past, that so conflict with our moral sense that we would support those who break them; even in some cases consider them heroes!

    I believe one is bound not by the laws of the government but by one’s conscience and the moral law written in one’s heart. Of course there is great personal risk in not following the government’s laws, and as a result we often subject ourselves to it for practical reasons.

    Yes, perhaps these statements are a bit grandiose when we are considering the petty zoning ordinances of a small town. I suspect the motivation for the letters had more to do with the manner in which the ordinances were enforced.

    I agree that one person’s actions have effects on neighbors, and in community we should seek to resolve disputes caused by those actions. But I stand by my words from an earlier comment: it is in community that we resolve differences through communication and compassion, not through police and lawyers.

    The zoning laws are not the will of the people. They are the will of some of the people, who have selected particular means to enforce them that I object to.

    Sincerely,
    Jacob Halbrooks

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