The state’s Housing Appeals Board reversed the Francestown Planning Board’s January decision to deny Ron and Melissa Shattuck’s proposal for a four-lot subdivision at the corner of Stevens Road and the 2nd New Hampshire Turnpike. It was the HAB’s first decision since being established in 2020.
The Planning Board denied the application to merge two existing lots and create four additional lots after determining it didn’t conform to the town’s subdivision regulations, and was inconsistent with the intent and spirit of the town’s zoning ordinance, which is meant to protect the view shed and maintain the character of the neighborhood.
The board specified that the proposal didn’t provide for a sufficient vegetative buffer to maintain the view from Stevens Road, the schematic didn’t include building envelopes the Board had requested, and the plan didn’t sufficiently address erosion and sediment control mechanisms.
In their appeal for a reversal of the Planning Board’s ruling, the Shattuck’s representatives argued that the application was, in fact, compliant with the town’s subdivision and zoning ordinances, as well as its Master Plan, and that much of the ordinance the Planning Board cited in their denial should have never factored into their decision. As for the contentious issue of a buffer, the Shattucks argued that subdivision regulations only require buffers to preserve site views from the time the subdivision application was filed. Since the Shattucks had lawfully cleared their land in late 2019, prior to filing their subdivision application in Sept. 2020, they argued they didn’t have to plant a buffer to hide the cleared land.
The HAB ruled in favor of the Shattucks in a May 7 order. They determined that the Planning Board hadn’t cited any objective zoning violations in their denial, and thus made an “unreasonable” decision.
Specifically, the HAB wrote that, although Planning Board conversations reflected a notion that the tree cutting in late 2019 was somehow illegal, the harvest did not preempt a subdivision in any way. Furthermore, the HAB determined that the “Purpose” section of the subdivision regulations and the “Preamble” section of the Zoning ordinance, both cited by the Planning Board in their denial, are “not specific regulatory provisions but are designed to provide guidance to the Planning Board… in preparing land use requests.”
“To suggest that single family residential construction on four (4) conforming lots realistically impacts “viewshed and character” of the neighborhood is not supported by any objective facts,” the HAB wrote in their decision. “Instead of clearly “designating building envelopes,” specifically stating what ‘public benefits” they felt important in conjunction with a… subdivision in this location, defining specific zoning and subdivision violations, clearly outlining how the subdivision is problematic or unfit “for current and future development and the community’s future needs,” the Planning Board relied on opinions and concerns which were subjective, legally undefined, or unreasonable in denying this subdivision.”
Francestown’s Planning Board and Select Board have 30 days from the announcement to appeal the decision, Select Board Chair Henry Kunhardt said. So far, there hasn’t been public discussion or a decision on how the town will proceed, although the Select Board discussed the hearing in nonpublic session, he said.
Francestown’s legal representative appeared to have less of an opportunity to speak during the appeal hearing than the Shattuck’s lawyer, Kunhardt said. “I felt like he didn’t get to make his side of the case very well,” he said.
According to the legal standards section of the HAB’s opinion, the HAB “must treat the Planning Board’s factual findings as “prima facie,” lawful and reasonable. Further, it cannot reverse the Planning Board decision unless it is unreasonable or there are identified errors of law…Thus the Planning Board decision will be upheld unless it is unsupported by the record or is legally erroneous as viewed by a reasonable person based on the same evidence.”
Although it’s too soon to identify any trends in the HAB, this process has been a lesson in the new state appeals board’s potential, Kunhardt said. “Previous to this, if someone wanted to appeal, they’d have to go through Superior Court,” he said, a potentially much harder and longer process. Now that there’s an easier appeals process, planning boards must make sure they have solid reasons to reject a plan, Kunhardt said, and it might lead Francestown to consider ways to improve zoning and subdivision regulations to be even clearer and more straightforward.
Planning Board Chair Karen Fitzgerald did not respond to a request for comment.