Only by Holly

Dear friends of Mt. Monadock, Below is a 500-word summary of the 35-page brief filed with the NH Supreme Court ...
Friday (January 22, 2010) by the opponents (Society for the Protection of NH Forests and 22 Jaffrey property owners) of the 28-unit development proposed by Robert Van Dyke at the base of Mt Monadnock.
Attorneys James Bassett, James Laboe and Peter Loughlin summarized their argument as follows:
“The 25-unit OSDP for which Mr. Van Dyke received approval from the ZBA and Planning Board is an unprecedented and overly intense residential development in an area of Jaffrey which the citizens have explicitly recognized as one deserving of special protection.
       
“There is no dispute that Mr. Van Dyke can develop a residential subdivision of approximately 10 single-family homes on the Property that would be in full compliance with the LUP [Land Use Plan], subdivision regulations and both overlay zoning districts.  Such a development would also be eligible for consideration as an OSDP.  Nonetheless, Mr. Van Dyke sought and received relief from the Town so that he could construct a 28-unit OSDP which would more than double the number of structures that he could otherwise build on the Property.

“The decisions of the ZBA and Planning Board, as well as the affirmance by the trial court, are unlawful and unreasonable for three reasons: First, the Town and the trial court misinterpreted the requirement for a yield plan under the LUIP, and unlawfully permitted Mr. Van Dyke to utilize a “virtual” variance from the frontage requirement of the Wetlands Ordinance in order to establish the base line density of development. Not only is the Town’s interpretation of Section VII inconsistent with the clear language of the LUP, but the 23-unit yield plan improperly includes substantial areas of the Property that cannot be platted because they are undevelopable.  In fact, in 2005, the Town argued in court that at least 22 acres of the Property are undevelopable because of wetlands.

“Second, the 28-unit OASDP violates Section 5.1 of the LUP, which permits only one principal structure per lot.  The trial court erred when it concluded that the frontage and lot size flexibility granted to a developer utilizing an OSDP has the effect of eliminating the ‘one lot/one structure’ requirement of Section 5.1.

“Third, the trial court and the ZBA erred in regard to the two variances from the wetlands frontage requirement of Section X.  Because the purpose and effect of the frontage requirement of Section X is to regulate the density of development in areas immediately adjacent to ponds and wetlands, the ZBA and the trial court erred when they concluded that the requested variances from Section X are area rather than use variances.  Further, the court erred when, for the purposes of applying Boccia, it considered the 28-unit OSDP to be an ‘otherwise permitted use’ under the LUP. In applying the Boccia standard, the court erred in two respects: when it failed to conclude that the variances would be contrary to the public interest, and when it affirmed the ZBA finding that Mr. Van Dyke had established unnecessary hardship.  It was error for the court to conclude that Mr. Van Dyke had proven unnecessary hardship when it is undisputed that Mr. Van Dyke can build approximately 10 units on the Property in full compliance of the LUP, rather than the 28-unit OSDP for which he received Town approval. Moreover, the mere fact that Mr. Van Dyke would receive less profit from the Development if the number of units were reduced in accordance with the LUP does not establish unnecessary hardship under Boccia.

“These errors require that the decision of the trial court be reversed.”

The attorneys also discussed "the illogic of the approach adopted by the ZBA and the trial court" regarding variances. 

The potential impact of the illogic is such that "developers could–and no doubt would–always propose a development with density far in excess of ... that allowed by a town zoning ordinance, and a variance would inevitably be granted."

This NH Supreme Court brief is signed by Attorney James Basset, who has headed the SPNHF-Citizens legal team for five years, and James Laboe, both of Orr & Reno. Joining them for the first time is Attorney Peter Loughlin of Portsmouth, the author of New Hampshire’s leading treatise on land use law, and an attorney whose opinions on zoning have been cited frequently in decisions by the NH Supreme Court.
Ask me by email If you would like a copy of the full brief in PDF form.
Ken Campbell
Citizens for the Protection of Mt. Monadnock
ken.campbell@mac.com