New Ipswich ZBA upholds Silver Scone decisions

  • Town of New Ipswich.  STAFF FILE PHOTO BY BEN CONANT

Monadnock Ledger-Transcript
Published: 1/23/2023 1:19:50 PM

The New Ipswich Zoning Board upheld two decisions in favor of Silver Scone Teas Thursday, although the board did admit to not following proper procedure in issuing its notice of decision when granting a variance to the business.

The business, owned by Jane Elwell, operates out of Elwell’s historic home on River Road. The business had been in operation without receiving a variance or a site plan review until neighbors began to issue complaints regarding its operation, including cars parking along the roadway.

The town issued a cease-and-desist to Elwell in June 2022, and she began the process of receiving the needed permits in the fall.

The town has issued two decisions in favor of Elwell, one a driveway permit issued by Public Works Director Peter Goewey to allow the widening of an entrance to a parking area, and the other a variance to the town’s zoning code to allow a tea party business in the primarily residential area. Village District I, where River Road is located, allows some businesses by special exception, including inns, day cares and nursing homes, but not Elwell’s specific tea party event business.

A coalition of neighbors and abutters to the property appealed both decisions. The Select Board, which first heard the appeal of the decision to grant a driveway permit, has already upheld that decision, which prompted an appeal to the Zoning Board. At the same time, the same group has also appealed the decision of the board to grant a variance to Silver Scone.

On Thursday, the board voted 3-0 to uphold both original decisions. The board reviewed each allegation put forth by neighbors through their attorney, Nancy Clark, and while they did admit in at least one case that the board had erred, they agreed to correct the error without opening a rehearing in the case.

On the matter of the driveway permit, Clark alleged that the town had failed to comply with its own driveway regulations by not requiring documents demonstrating the wetlands buffer and allowing a driveway to serve an “illegal purpose” – in that it was for an event business that had not been granted town approval yet. She also alleged the removal of a portion of a stone wall on a scenic road was against state law.

Zoning Board member David Lage countered those arguments, noting that the board had done a site walk to survey the conditions of the area, and that the driveway was already in existence. He also noted that the business was under a cease-and-desist order at the time the permit was issued, and was complying with that order at the time. Regarding the scenic road, Lage said that while there is a law that protects the removal of stone walls on scenic roads, it does not apply to private landowners.

The appeal of the variance included a total of 14 points where Clark alleged the board had erred, including not correctly considering any of the five variance criteria.

On the first and second counts, Clark argued that the board did not issue its decision correctly because it failed to make specific findings of fact in support of its decision, which would have allowed neighbors a chance for a meaningful review for appeal purposes. Chair Walker Farrey admitted the board had erred, and would be reissuing the decision with the findings of fact.

“We agree we needed to apply findings of fact,” Farrey said.

Lage said this change of procedure was a recent change in the law, and while the board should have been aware of it, it was an oversight that would be addressed.

The board also found that it had incorrectly cited the exact zoning code it had granted the variance for, which the board collectively agreed to also correct.

However, despite those findings, which the board said it would correct, they upheld the original decision to grant the variance.

Clark alleged that the board had disregarded her client’s extensive testimony on how the business disrupted the neighborhood and changed its character.

“The board ignored every one of the 14 impact statements,” Clark said.

Board members disagreed, noting they had attached a list of conditions to the business, including limiting the amount of days the business could operate to four a month, limiting the number of guests per event to 50 and limiting the business operation hours, in response to the concerns they heard from neighbors.

“We developed conditions of operations to prevent nuisance, based on those comments,” Farrey said. “Close to 15 conditions were placed on the applicant, in conjunction with abutters’ statements.”

Clark also alleged the board had erred when making its judgment based upon encouraging small business, as outlined in the master plan, which she argued did not have that provision. Clark said in a word search of the master plan on the town’s website, the words “small business” didn’t appear.

Lage told Clark she was incorrect, and that in the town’s master plan there were provisions to broaden the tax base while keeping the town’s rural character through small businesses.

Clark also objected to public access in two areas, one regarding a site walk on Aug. 25, when neighbors were not allowed inside Elwell’s home despite it being part of a public meeting, and that the board had made attempts to limit comment from her clients during the hearing process.

Again, the board admitted to irregularity in the site walk, but noted that a quorum of the board was not present for the walk, and that after the irregularity had been brought up, an offer had been made to allow Clark through the property as a proxy to her clients, which she refused. Clark denied her clients had been offered a redo, noting, “David [Lage], if there was an offer to go back to the site, we would have been there.”

The board at one point asked that Clark deliver her clients’ comments, or that her clients keep comments to three minutes, though neither of those requests were ultimately enforced.

Clark also alleged board member Danielle Sikkila failed to be impartial by “liking” a Facebook post on a thread related to Elwell’s River Road home. Sikkila said the post was regarding being able to call your home by whatever name you liked, not regarding the business specifically, and said she had no financial or personal interest in the case.

Ashley Saari can be reached at 603-924-7172 ext. 244 or She’s on Twitter @AshleySaariMLT.


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