Peterborough zoning lawsuit settled with zoning ordinance passed in 2017 invalidated by court

  • Supporters of Peterborough’s zoning Amendment 15 got part of what they wanted with the Superior Court ruling to invalidate TNOZ II last week. Staff photo by Ben Conant

Monadnock Ledger-Transcript
Published: 1/6/2020 5:45:05 PM

The Superior Court dismissed two lawsuits regarding the Peterborough town zoning ordinance last week and invalidated one provision of it, the town’s Traditional Neighborhood Overlay Zone II, which voters had approved at the 2017 Town Meeting.

According to the town, both parties agreed the 2017 zoning amendment had not been properly noticed.

“The Court ... has issued an order invalidating the TNOZ II provisions of the Peterborough zoning ordinance, effective as of the date of the Court’s approval of the consent decree December 27, 2019.,” the Peterborough Board of Selectmen said in a press release Monday afternoon.

The lawsuits were filed in Hillsborough Superior Court North after May Town Meeting when a petition amendment that would have amended TNOZ I and fully repealed TNOZ II won the simple majority, which was all that was initially required, but failed to pass because of a last minute protest petition filed by supporters of the TNOZs that required a two-thirds majority to pass.

For the past several years town planners have been proposing zoning amendments, which voters approved at the ballot, that were aimed at making infill building for more housing in the center of town possible. Planners said the new zoning would encourage more affordable housing and discourage sprawl in the rural areas. A group opposing the new zoning, saying it would change the character of certain neighborhoods, placed a petition zoning amendment, Amendment 15, on the 2019 May Town Meeting zoning ballot to repeal that would have repealed the Traditional Neighborhood Overlay Zone II in whole and then would have amended the Traditional Neighborhood Overlay Zone I to require larger lot sizes and longer road frontage than currently required in the general residence portion of the zone.

Shortly before May Town Meeting, another group in town, who supported the new zoning and wanted it to stay in place, submitted a protest petition that required the Amendment 15 zoning repeals to garner a two-thirds vote at Town Meeting and not a simple majority. Planning Board Chairwoman Ivy Vann and resident Kate Coon had gathered the signatures of landowners in the impacted district.

That’s when the backers of the zoning repeals called in their attorney Mark Fernald, who asked the town to have the town attorney re-evaluate the protest petition. The town stood by its decision that the protest petition was valid. And at May Town Meeting Amendment 15 and its zoning repeals garnered a majority but not two-thirds of the vote and so failed with 778 yes votes and 719 no votes.

The backers of Amendment 15 took the issue to court, challenging the validity of the protest petition, on several grounds, including that it only included landowners in one district, despite the article addressing two districts. In return the town of Peterborough filed a civil suit against two specific Amendment 15 petition signers – Loretta Laurenitis and David Bonacci – alleging that even if it had passed, Article 15 would not have been valid, because it addressed multiple zoning rules in a single article.

All parties involved filed the consent decree with the Hillsborough County Superior Court in Manchester last month requesting “settlement and voluntary dismissal of these two lawsuits by the parties,” Selectmen said in their Monday press release.

And so, David Bonacci et al. v. Peterborough and Town of Peterborough v. David Bonacci and Loretta Laurenitis were dismissed by the court. However, part of the request to dismiss was that the court invalidate TNOZ II.

“The parties discovered during the litigation that the Traditional Neighborhood Overlay Zone II (TNOZ II) zoning amendment public hearing notice that was posted to give to the public constructive notice of essence and scope of the TNOZ II zoning amendment under consideration did not contain all of the required essential information necessary to comply with the statutory notice requirements of RSA 675:7,” Selectmen said Monday. “Accordingly, the parties presented the facts of this deficiency of notice to the Court in the consent decree.”

Selectmen went on to say that the court’s invalidation of the zoning ordinance will not effect any prior Planning Board approval. “This invalidation of the TNOZ II ordinance will not apply to subdivision or site plan applications related to the TNOZ II provisions of the zoning ordinance that were approved by the Peterborough Planning Board prior to the date of the Court’s order.”

Despite having a provision of the town zoning ordinance invalidated by the court the Selectmen said they are pleased by the outcome.

“The Selectmen are pleased that the Planning Board and the parties to this litigation have expressed their commitment to work constructively towards a community-based process for gathering input from a majority of residents and stakeholders of Peterborough about their concerns, hopes, needs and wants for short and long term housing policy. It is expected that this input will ultimately be used to inform the process of updating the town’s Master Plan chapter on housing which will ultimately provide guidance to the town’s Planning Board, as it works to revise the town’s zoning ordinances to meet future needs,” Selectmen wrote Monday.

Monadnock Ledger-Transcript

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