Peterborough zoning repeal protest challenged

  • Peterborough's zoning amendment No. 15 is a hot topic this spring. Staff photo by Ben Conant—

Monadnock Ledger-Transcript
Published: 5/13/2019 9:46:54 PM

Through their attorney Mark Fernald, some Peterborough residents who signed the petition to place zoning Amendment 15 on the ballot are asking the town to have the town attorney re-evaluate the protest petition that is requiring a two-thirds majority of Tuesday’s vote in order for the zoning petition to pass.

“I have reviewed the two protest petitions that have been filed against that zoning amendment. I understand that the Town and its Counsel have concluded that both petitions are valid. I believe those conclusions are incorrect,” Fernald wrote in a letter to town administrator Rodney Bartlett on Friday.

Amendment 15, submitted by a group of citizens, would repeal the Traditional Neighborhood Overlay Zone II, and amend 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.

Last week, the Select Board received two petitions requesting the proposed amendment require a super-majority, two-thirds of the vote, to pass. Planning Board Chairwoman Ivy Vann and Kate Coon gathered the signatures of landowners in the impacted district.

The protest petitions follow the guidelines laid out by RSA 675:5, which says that if owners of 20 percent of the landmass which will be impacted by a zoning repeal or regulation change request protest, the requirement to pass that amendment increases from a simple majority to a two-thirds majority. The super-majority can also be triggered by owners of 20 percent of the area within 100 feet adjacent to the impacted district.

The two petitions cover both requirements, one for owners of 20 percent of land within the Traditional Neighborhood Overlay Zone I, and one for a single landowner who owns 20 percent of the property adjacent to it.

Fernald argued in his letter to the town Friday that the protest petitions only have the right amount of signatures that would apply to TNOZ I and Amendment 15 pertains TNOZ I and TNOZ II.

Vann said Friday, while she and Coon did not gather signatures of 20 percent of the residents of TNOZ II that doesn’t matter because Amendment 15 wraps the two districts into the one petition article so both would be shot down if it does not pass by a two-thirds majority.

“He’s the person who attached those two things to each other in a petition article,” Vann said of Fernald. “You cannot bifurcate that warrant article. It’s all or nothing.”

Vann said she agrees with what Coon said last week that Amendment 15 is a “radical overreach,” by attempting to subvert the Planning Board’s process of crafting zoning changes over years of research, work and a public input process.

“I would never file a protest petition against any piece of zoning ordinance that had come through the public hearing process no matter what it said,” Vann said. “We knew it was going to make people really angry.”

Vann said the two-thirds majority now required in order for the vote to pass will ensure the “radical a change” is truly supported by voters.

In his letter, Fernald also contests the eligibility of some of the petitioner signatures, the eligibility of some of the properties and erroneously overestimated a large property east of downtown, owned by Lavina Clay, which was used for the protest petition that hinges on having an area that is 20 percent of the area just outside of TNOZ I.

Last week, Bartlett and Deputy Town Administrator Nicole MacStay said town staff and the town’s attorney vetted both protest petitions in order to determine that they met the arceage and signature requirements before presenting them to the Select Board.

Bartlett said in an email Monday morning that Fernald’s letter has been sent to the town’s attorney for review.

Friday, Fernald said he will wait to see if the town thwarts a majority vote on amendment 15 or let it pass without the two-thirds majority the protest petition requires. If Amendment 15 passes by a simple majority and not a two-thirds majority and is not recognized as passing by the town, Fernald said legal action may ensue depending on what his clients decide.

“I have to see what my clients want to do,” Fernald said.

Fernald ended his letter by saying the town appears to have acted on behalf of the people behind the filing of the protest petition.

“Finally, it has come to the attention of my clients that several weeks ago, town officials directed town employees to calculate the land area within TNOZ I, and to analyze what 20 percent of that area is, all in preparation for the protest petitions. It is highly improper for a town to attempt to affect the outcome of a vote. We believe this taints the protest petitions and renders them invalid,” Fernald wrote.

Vann vehemently denied the accusation on Friday.

“No that is not true. I asked for a list of the people,” Vann said.

Vann said she and Coon used the list of property owners to gather the signatures for the protest petitions.

Selectwoman Barbara Miller said Monday that the GIS mapping system at the planning office is paid for by taxpayers and therefore accessible to residents looking for information.

“I think that the staff works for the residents of the town and if somebody comes in and asks for information we try to help them with that. I don’t think there is anything wrong with that,” Miller said. “I don’t think town employees would be in support or against anything. I think they would just provide information.”

Amendment 15 is being voted on by residents at the Peterborough Community Center Tuesday, May 14, from 7 a.m. to 7 p.m.


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