Hancock Inn owner 33 Main Street, LLC. and the Town of Hancock have both filed post-hearing briefs with the Superior Court of New Hampshire following an Oct. 17 hearing in Manchester.

33 Main Street, LLC, represented in court by Todd Enright and attorney Dan Luker, contends that the inn’s proposal for a black aluminum fence around the back patio was not given a “de novo” review by the Hancock Zoning Board of Adjustment, claiming instead that the ZBA’s decision was unduly influenced by the Hancock Historic District Commission. According to the brief, 33 Main Street, LLC is asking the court to either reverse the decision on the fence or remand it to the ZBA for another hearing “for actual de novo consideration.” The brief goes on to state that “the ZBA decision is unreasonable because the ZBA did not find, and could not have found, facts in support of its conclusion… . The ZBA shirked its duties and deprived 33 Main of the de novo appeal granted to it by statute.”

In June, the Hancock Historic District Commission rejected the inn’s proposal to replace an existing wooden picket fence, which is in poor condition and not historic, with a plain, black metal fence. The HHDC rejected four alternative designs proposed by 33 Main in August. 33 Main Street, LLC has repeatedly cited the existence of other metalwork in the Downtown Historic District in support of the proposed aluminum fence, and argues that the proposed fence would be “unobtrusive and compatible with the town’s historical character.” 33 Main Street claims that the ZBA’s decision to deny the fence was “unlawful and unreasonable.”

Furthermore, 33 Main Street, LLC argues that the ZBA was not confident in its ability to decide matters of historical significance, citing comments made at hearings which could indicate that the ZBA relied solely on the advice of the HHDC to make its decision.

The brief filed by attorney Cordell Johnson for the Town of Hancock states that while the HHDC approved most of the improvements proposed by 33 Main Street, LLC, the commission did deny the inn’s request to replace an existing four-foot-tall wooden picket fence with a black painted aluminum fence on grounds that the aluminum fence did not fit in with the character of the Historic District. Hancock’s Historic District code requires that existing features be replaced with the same material, and the HHDC has stated repeatedly that there are no existing metal fences in the Hancock Historic District.

The town argues that the ZBA was able to make a decision on the fence independent of the decisions of the HHDC. The brief claims that “the two boards applied different criteria in their making their decisions” and provides a list of sections considered by the HHDC and the ZBA, satisfying the “de novo” standard. The brief goes on to contend that because the HHDC has the responsibility of enforcing ordinance for the Town of Hancock, the HHDC served as the administrative officer in the ZBA hearings, identical to the role of a building or code inspector; and that advising the ZBA about ordinances is the role of the administrator.

The town also disputes 33 Main Street, LLC’s request that Hancock pay the attorneys’ fees for the proceedings, denying that the town acted in “bad faith or with malice, ” as was stated in the petition filed by 33 Main St, LLC.

At the October hearing, Judge David Anderson stated that regardless of the outcome of the hearing, 33 Main Street will have to abide by the decision of the Hancock Zoning Board in the matter of the fence, as the court cannot overrule the decisions of local ZBAs in cases such as this one.