Housing Appeals Board hears Silver Scone Teas case


Monadnock Ledger-Transcript

Published: 05-17-2023 2:28 PM

The state’s Housing Appeals Board heard arguments from both sides Tuesday in Concord over the granting of a variance and a driveway permit to the Silver Scone Teas tea party event business on River Road in New Ipswich.

The Housing Appeals Board has jurisdiction over appeals from decisions of multiple town boards, including planning boards, zoning boards of adjustment, historic district commissions, heritage commissions and conservation commissions.

The Housing Appeals Board has 60 days to consider the merits of the case and render a decision, which can be appealed to Superior Court.

Neighbors of Silver Scone Teas, an event business owned by Jane Elwell and run out of her historic home on River Road in New Ipswich, took the appeal of two town decisions related to the case to the state board, arguing that they were made unlawfully.

One of the two issues was the granting of a variance to allow the business to operate in Village District I. The district allows specific businesses in the district by special exception, such as inns, day cares, care facilities and kindergartens. Elwell’s business did not fit into any of those categories, but the Zoning Board awarded a variance allowing it to operate on the grounds that many of the uses allowed by special exception would have equivalent or more impact. 

Neighbors also appealed an administrative decision to issue a driveway permit for a parking lot off of Currier Road. The lot was a previously cleared area used for logging Elwell’s property. Elwell’s permit included a request to widen the entrance by removing a portion of the stone wall.

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Bob Fasanella, representing Elwell, argued that in several  areas, Elwell had gone above and beyond legal requirements. Fasanella argued that a driveway permit wasn’t required at all, because the parking area and driveway was pre-existing. Elwell moved two large rocks from the sides of the entrance to widen it, which Fasanella argued wasn’t a substantive change. Nonetheless, Fasanella said Elwell applied for and received the permit.

Represented by attorney Nancy Clark, who also lives in the neighborhood, neighbors presented the same arguments made to the Zoning Board upon their initial appeals.

Clark argued that the written decision issued by the town regarding the granted variance didn’t include findings of fact, as required by law, which didn’t allow for the neighbors to make a full judicial review when readying their appeal.

The town admitted this error, and reissued a decision with findings of fact that were compiled from discussions during the deliberation on the variance.

Clark also argued that the decision wasn’t valid because the board made a correction to the section of the zoning ordinance the variance granted relief for. The town has argued that the ordinance referenced in the decision was a mistake that was corrected, but was correct in all other instances, including the noticing for the hearings, and the correct section was used when considering the merits of the case.

Clark also argued that her clients had not been given fair treatment throughout the proceedings, including not being allowed into the interior of the home during a site visit, and that two of her clients were cut off from making complete comments during the hearing.

Clark also alleged that ZBA member Danielle Sikkila “liked” a Facebook post that was discussing the Silver Scones business, showing bias. Sikkila has said at public meetings that the comment she liked was not specifically for or against the business, and denied that she had any bias in the case.

Clark has also argued that none of the criteria required  for granting a variance were properly met, saying the board was meant to take into account a “substantive look” at the zoning ordinance.

“They simply failed to do this,” Clark said.

Regarding the driveway, Clark argued that the town did not adhere to its own regulations, including allowing the driveway when residential lots are only allowed a single driveway and issuing the permit despite not having required documentation, including wetlands delineation.

Fasanella responded that the wetlands on the property are more than 50 feet from the driveway. He again said the driveway was previously in existence, and had been for decades, and that the lot has been used for logging and to park vehicles, including tractors, since Elwell purchased it in 2014.

The State Housing Appeals Board, made up of three members, said little while hearing arguments, only asking occasional clarifying questions. Each party was allowed 30 minutes to present their arguments, after which the hearing concluded.

Ashley Saari can be reached at 603-924-7172 ext. 244 o r asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.