Peterborough has filed a civil suit alleging a contested zoning amendment is invalid, as it addresses multiple zoning issues in a single article.
Zoning amendment 15, which failed at the polls in May, would have repealed the town’s Traditional Neighborhood Overlay Zone II, and altered the Traditional Neighborhood Zone I to require larger lot sizes, setbacks and frontages.
The amendment was placed on the ballot by petition and was backed by a group of 15 Peterborough residents.
A counter group filed a protest petition with the town, signed by landowners in Traditional Neighborhood district I. By law, if owners of 20 percent of land impacted by a proposed zoning change protest, it raises the bar to pass the ordinance from a majority vote to a two-thirds majority. At the polls, the ordinance gained a narrow majority vote, but didn’t pass due to the heightened requirements.
The backers of Amendment 15 have taken 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.
Now, in a new suit naming two of the backers of Amendment 15, Loretta Laurenitis and David Bonacci, the town is alleging even if it had passed, Article 15 isn’t valid, because it addresses multiple zoning rules in a single article.
The suit, filed with the Hillsborough Superior Court on Aug. 21, alleges because it would have made changes to two separate districts – Traditional Neighborhood Overlay Zones I and II – Zoning Amendment 15 violates the “single subject” rule.
The rule is that multiple zoning issues cannot be compacted into a single article. The town is arguing Amendment 15 does just that.
When an article encompasses multiple districts, it limits the residents of one of those district’s right to submit protest – which is allowed under the law – the town argued in its filing.
The town has asked the court to make a declaratory judgment that violating the single-subject rule makes it invalid.
Libby Reinhardt, one of the group that crafted Amendment 15, said she was “blindsided” by this argument, which she said should have been addressed when the group first submitted the amendment to the town. If there was a legal issue with the way the amendment was worded, she said, the group could have re-written the articles and re-gathered signatures. But it wasn’t brought up at the time, she said.
In an interview Friday, Laurenitis said the same argument could be made within the town’s response to the suit filed challenging the validity of the protest petition, and doesn’t need to be addressed in a separate suit.
MacStay, in an email to the Ledger-Transcript Friday, said there have been legal questions raised in the original lawsuit that the town would like to have answered.
“The Town believes that both groups of citizens had the right to file their respective petitions, and has a right to request that the Court review their questions, the evidence, and make a judgment on the merits of their argument,” MacStay wrote. “If the Town had filed a Motion to Dismiss the suit on the grounds that the original petition amendment violated the single purpose rule, and had such a motion been granted, neither the Town’s question, nor the questions raised by the citizens who have filed suit against the Town, would have been answered. By filing a separate motion we have ensured that the court will address all points and questions raised.”
Amendment 15 was defeated at the polls, and thus, its validity is currently moot. But because the vote is currently being contested in the courts, MacStay said it is important the town also establish the validity of the article itself, if the court rules that the protest petition is invalid – which would mean Article 15 passed with a simple majority.
“If that is the case, we would need to know if the Zoning Amendment 15 was a legal warrant article, and so we would still need the Court to make a determination with regards to the single-purpose rule,” MacStay wrote.
Laurenitis said it is inappropriate for the town to single out individual signers of the petition for a civil suit, and that the town should have extended the courtesy of notifying her and Bonacci or their attorney before filing the lawsuit.
MacStay said the town intends to request the court consolidate both suits, and consider them at the same time.
“Mr. Bonacci and Ms. Laurenitis were the first petitioners listed on the complaint filed against the Town, and also were signers on the Petition Zoning Amendment; it made sense to address the suit to them,” MacStay wrote. “It was not necessary to name every petitioner who is party to the complaint.”
Ashley Saari can be reached at 924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.