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Kearsarge Lighting Precinct attorney Peter Malia (far left)  is shown at the Jan. 21 public hearing of the Kearsarge Lighting Precinct on proposed warrant amendments concerning short-term rentals. Next to him are (from left) precinct secretary Meredith Wrobleski, Commissioners Rick Jenkinson and Lynn Lyman and precinct treasurer Peter Donohoe. (TOM EASTMAN PHOTO)

CONWAY — After numerous delays due to the coronavirus pandemic, the Kearsarge Lighting Precinct has rescheduled its annual meeting again — this time due to hazardous weather forecast for Tuesday night by the U.S. Weather Service.

The meeting is now set for tonight at 6:30 p.m. on the lawn off the deck at Zip’s Pub at Cranmore Mountain Resort in North Conway.

Precinct commissioners say they currently cannot issue absentee ballots because KLP holds a traditional town meeting without an official ballot system.

Commissioner M. Lynn Lyman said the forecast led Moderator Jim Umberger to confer with commissioners Monday morning and that his call was to postpone it until Wednesday.

“We want to thank General Manager and President Ben Wilcox and events manager Megan Nelson of Cranmore for letting us use the facility free of charge,” said Lyman.

At tonight's meeting, voters will act on Article 1, election of officers, with all of the seats held by incumbents and uncontested. But Lyman noted that "you never know if someone is going to launch a last-minute write-in campaign."

Precinct attorney Peter Malia of Malia Hastings Law Office of Fryeburg, Maine, said it will be Umberger’s call as moderator to pass over the zoning amendments proposed under Articles 2-7 and move directly to Article 8, the proposed $82,229 operating budget.

That’s because legal counsel has ruled those proposed zoning amendments are invalid since the KLP does not have a planning board, said Malia, adding that commissioners are scheduled to meet July 21 to discuss forming a planning board.

Voters can't create a planning board tonight, Malia said, because the warrant was set before the legal ruling came out.

Rick Jenkinson, commissioners' chair, confirmed that creation of a planning board issue will be on the July 21 agenda.

“Then we would have to either hold a special meeting to create the planning board or wait until annual meeting in March 2021 because the voters have to enact the creation of the planning board, after which members would be appointed,” he said Monday.

Once a planning board is created and members appointed, the planning board would have to hold a hearing on the zoning proposals and take them to commissioners, Jenkinson said.

“It’s possible that voters would not act on the proposed amendments until the annual 2021 meeting,” he said.

That ruling on the illegality of the zoning amendments adds yet another layer of complexity to KLP’s internal battle over the governance of short-term rentals, with two articles concerning short-term rentals on this year’s warrant now made moot.

The commissioners had backed Article No. 3, banning non-owner-occupied short-term rentals but allowing non-owner-occupied rental of more than 60 days.

Article 4, led by resident/Realtor Josh Brustin, would allow non-owner-occupied short-term rentals of under 30 days by conditional-use permit only. Rentals of 30 or more consecutive days would be allowed in the KLP.

But at a Jan. 21 public hearing, Malia said that with no planning board, there is no legal mechanism for KLP issuing conditional-use permits.

Therefore, he said, the effect of the petitioned article would be to ban all short-term rentals since the permits under the proposed ordinance are required in order to run a short-term rentals.

That prompted a letter to commissioners in March from Brustin, owner/broker of Pinkham Real Estate, requesting further research.

Malia dove into that research, along with conferring with the N.H. Municipal Association. They found that enabling legislation passed by the Legislature in 1957 authorized the KLP to enact a zoning ordinance. Then in 1983, the Legislature passed a law that required planning boards to hold public hearings prior to zoning ordinance amendments being put on a warrant for a vote.

In the KLP, those hearings were held by the commissioners, and for this reason, legal counsel determined that the amendments currently on the warrant were null and void because they did not undergo a planning board public hearing.”

Another law passed in 1988 said that any claim that municipal legislation is invalid for failure to follow a statutory enactment procedure must be presented within five years.

“We’ve concluded, based on this law, that any amendments passed by the KLP during the past five years are null and void," the commissioners wrote in their letter posted on the KLP website.

"The zoning amendments made in the previous five years were approved by voters in 2017, which included a requirement that all dumpsters must meet setback requirements and be fenced in, as well as two other technical amendments. These will have to be reconsidered."

Also on tap for the precinct is the court date in Carroll County Superior Court in the for the Gleason-Andrews lawsuit against the precinct regarding the ZBA's enforcement of short-term rental bans.

The trial will begin in October, "so we expect a decision to come out after that," Jenkinson said.

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