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Mason: Courts weigh in on driving range concert series

  • Marty’s Driving Range co-owner Nicole Ruggiero campaigns outside the Town Hall during a special Town Meeting vote on Tuesday, June 7, 2016, asking for a zoning amendment that allows outdoor entertainment. Staff photo by Ashley Saari



Monadnock Ledger-Transcript
Wednesday, June 14, 2017

The courts have decided in favor of the town of Mason in an appeal against the legality of last year’s special election on an outdoor entertainment ordinance.

The zoning law was passed by town voters, and allows a summer concert series at Marty’s Driving Range. Owners of adjacent properties challenged the decision on the grounds that the amendment was inconsistent with existing law, unreasonably vague, and that the election had possible voter confusion. The appeal also argues that the public hearing after the election was not conducted justly. The state of New Hampshire Hillsborough Superior Court decided that it was none of those things and backed up the vote.

The saga is now nearly a year and a half long, beginning when Martin Ruggiero sought a zoning amendment proposal before town meeting 2016. The court hearing took place on April 13, 2017, and the order was released on June 12.

“The court concludes,” the decision said, “that (1) The amendment is not inconsistent with the zoning ordinances or with state law; (2) The amendment is not unconstitutionally vague; (3) The plaintiffs have not established the presence of voter confusion in the Town Meeting on the amendment sufficient to render the vote invalid; (4) The Town Meeting vote resulted in a valid passing of the amendment; and (5) The Board of Selectmen’s rehearing process was not procedurally defective.”

It cites prior caselaw from incidents in Derry, Henniker, Hollis and North Hampton, New Hampshire.

Last June, the town of Mason held a special town meeting election on a proposed zoning amendment to allow the zoning board to grant special exemptions for outdoor entertainment, such as concerts at Marty’s, between Memorial Day weekend and Columbus Day weekend, ending by 10 p.m. on weeknights and 11 p.m. on holidays and weekends.

It passed with a vote of 240 to 165, passing with a simple majority. For contrast, that turnout resulted in nearly four and a half times as many votes cast as for the highway department garage bond at town meeting this March.

The court ruled that it is not unconstitutionally vague because, while it allows for the possibility to a range of entertainments, it does not grant them as a right, stating only the the board may review to grant exemptions.

The plaintiffs addressed concerns of “‘adult’ entertainment, fireworks, carnivals, circuses, outdoor motorized vehicle entertainment events” and others. It will be up to the zoning board to decide on these.

The court ruled that it was not in conflict with standards in the existing ordinance for similar reasons, saying, “as long as the Board of Adjustment abides by these standards when considering a request,” the plaintiffs’ concerns are “premature.” Also, the court notes, these individual exemptions would be subject to appeal.

The assertion of voter confusion related to fliers handed out at the meeting. The US Supreme Court, the order says, declared that the “mere possibility of voter confusion” is not enough to nullify a vote, and the plaintiffs did not prove actual cases of voter confusion.

They also stated that in a rehearing on June 28, the board of selectmen did not accept public input despite it being a public hearing. According to the decision, both parties’ attorneys spoke and there is no record of anyone being denied permission to speak.

The appeal, made by Michael Davineau, an abutter and former Mason zoning board chair, lists Davieau, Cheryl Davieau, Charles Countryman, Karen Coutryman, Christian Gauthier, Michelle Gauthier, Derek Mathieu and Emily Sumner as plaintiffs. The town of Mason and the board of selectmen comprised of Louise Lavoie, Charles Moser and Bernard O’Grady were defendants.

The Davieaus could not be reached for comment.

The next step, should the plaintiffs choose to take it, would be an appeal to the New Hampshire Supreme Court.