Attorneys for the town of Hancock and 33 Main St. LLC, the owner of the Hancock Inn, appeared before Judge David Anderson in Hillsborough Superior Court North on Tuesday to argue their cases regarding the proposed installation of a metal fence at the Inn.

In a complaint against the town, 33 Main St. LLC claims that the Hancock Zoning Board of Adjustment failed to weigh a decision about proposed fencing at the Inn independent of the influence of the Hancock Historic District Commission (HHDC), when the board denied approval for the fence.

Attorney Daniel Luker, representing, 33 Main St., LLC, was accompanied by Todd Enright, the manager of the 33 Main St. project. The town of Hancock was represented by attorney Cordell Johnson. Leonard Dowse, chair of the Hancock ZBA, also was present for the court hearing.

After meeting with the Hancock Historic District Commission several times in 2022 and failing to get approval initially for a brick wall, and then a black aluminum fence around the patio on the west side of the Inn, 33 Main St. LLC, then represented by attorney Mark Fernald, applied directly to the Hancock Zoning Board of Adjustment to get approval for the metal fence. In November of 2022, the ZBA denied approval for the fence on the grounds that it did not fit in the historic district under the historic district ordinances. The ZBA also denied an appeal in February 2023.

Luker clarified that Tuesday’s hearing was solely regarding the issue of the metal fence and presented the judge with photos and a site plan, pointing out the location of the existing fence. Luker stressed that the unpainted wooden picket fence is not historic and is in poor repair. Judge Anderson responded that, given the extent of the renovations, the fence “seemed like small potatoes for this project,” and asked why the fence is so important to the owners. Luker responded that the owners wanted to replace the existing wooden fence with a black aluminum fence to add to the “revitalization” of the property. He said the property “is not a museum; it’s a functioning inn.” Enright noted that the black fence will be covered by arborvitae, which are evergreens, screening the fence from public view.

“The current fence does not match the architecture of the Inn. That’s why it is important to the owners,” Luker said.

Luker noted that the Inn is not a Colonial building, but Greek Revival with Victorian elements; and that the existing picket fence is more appropriate for a farmhouse.

33 Main St. LLC claims the Hancock ZBA did not engage in sufficient fact-finding before making a judgment on the fence, and that the ZBA was “too deferential to the wishes of the HHDC.”

“There were no real findings. In large part, they (the ZBA) just referenced the ordinances without really explaining why the proposed fence doesn’t fit, ” Luker said.

Luker then referred to the testimony of Patricia O’Donnell of Heritage Landscape, LLC, who spoke as an expert witness for 33 Main St. LLC. O’Donnell expressed her opinion that a black metal fence would be appropriate in the Hancock Historic District, citing examples of other historic districts and projects.

“We didn’t think we got a fair shake with the Historic District Commission, and we were hoping for a better chance with the ZBA. We don’t think we should have to be here today,” Luker said.

Judge Anderson said he could not comment on whether or not the proposed metal fence is complementary to the Inn, and that the decision is up to the Hancock ZBA. The judge then asked attorney Cordell Johnson, who is representing the town of Hancock, what evidence there was to suggest that the ZBA had made an independent determination based on its own fact finding. Johnson, the attorney representing the town, responded that the ZBA had taken a different approach to its discussion, including citing different sections of the zoning ordinances from the historic code.

“It’s very clear from the minutes of the ZBA why they feel this fence does not belong. They did discuss this at some length … the fact that there are no metal fences in the historic district. They discussed that there had been a wooden fence there for a long time. They discussed the balcony railing, and our expert said the proposed fence does not complement the wrought iron on the Inn,” Johnson said. “They did not just duplicate what the HDC did. There was overlap, but they made their own determination.”

Johnson summarized the HHDC’s attempts to guide 33 Main St., LLC in the choice of an appropriate fence which would receive approval. The HHDC suggested replacing the wooden fence with a new wooden picket fence, or alternatively, using a more decorative metalwork fence that would match the existing metalwork on the building and other fences on the block. Johnson cited the Hancock Historic District ordinance stating that if features need to be replaced, they should be replaced with the same materials.

After hearing both statements, Judge Anderson summarized what he had heard.

“So this is a wooden fence, and there are no other metal fences in the Historic District area,” he said. “One might disagree with that, but I don’t see how you can say it’s unreasonable.”

The judge clarified that the purpose of the hearing was not to make a decision on the fence, but to determine whether or not the ZBA had weighed the matter anew when it came to the board. Both attorneys were instructed to complete filings by Nov. 7.