The state’s Housing Appeals Board returned two decisions relating to a tea party business in New Ipswich on Monday, upholding the town’s decision to issue a driveway permit, but overturning the approval of a variance to allow the business to operate in the Village District.
A group of neighbors who have opposed the business, Silver Scone Teas, filed the appeals in mid-February. Silver Scones and owner Jane Elwell had been operating the business out of Elwell’s historic home on River Road, but without the proper permitting from the town. After a cease-and-desist was issued, in part because of neighbor complaints about parking clogging the public roadways, Elwell filed applications with the town’s zoning and planning boards, which included turning an existing dirt area on her property into a parking lot to move traffic off the street.
The Zoning Board approved a variance allowing Elwell to operate her business in the Village District, but with a list of conditions, including limiting the amount of events to four days per month, and no more than 50 guests. Neighbors, including the attorney representing them, Nancy Clark, filed a motion for rehearing concerning the approved variance in January, and the board voted to uphold its initial decision, although it did agree to issue a new decision letter with the findings of facts incorporated, a requirement they had failed to include in its initial decision.
While Clark and her clients filed an appeal with the state’s Housing Appeals Board with multiple allegations where the ZBA had erred, the appeals board rendered its decisions based on two particular counts. The first issue is the first allegation, that the ZBA violated RSA 676:3 by failing to include specific findings of fact when it issued its decision in the case. The town has admitted to failing to issue the findings of fact initially, but did render a new notice, with the findings, on Feb. 20, which the town argued cured the defective notice of the decision given on Dec. 19.
The appeals board noted that the town’s original decision was issued 18 days after the vote, despite it being required to be issued within five days, by law.
“…[W]hile the the enabling statute requires written decisions to be available within five days from the date of the vote, here, the written decision was effectively issued more than 2.5 months after the initial vote; approximately one month after the ZBA considered the Appellants’ rehearing request; and four days after the Appellants filed their appeal with this Board,” the decision reads.
The appeals board also found that the board had several “significant inconsistencies” between its decision-making process and the requirements of RSA 676:3. The motion for rehearing was styled, at the town level, as an “appeal and motion for rehearing,” and submitted on the town’s form for an appeal of an administrative decision, and the rehearing was at times referred to as an appeal.
“From the record, it appears that both the ZBA and the Appellants drew a distinction between the Appellants’ rehearing request and a separate appeal of the variance to the ZBA. The Board is unaware of what legal support would allow such a bifurcated process,” the appeals board wrote.
The appeals board also found that the ZBA failed to provide reasons for denying the rehearing request until March 2.
“In light of the above, the Board concludes that remand is appropriate given the confusing and particularly unique procedural history of this case,” the appeals board wrote.
The board also found there was merit in an allegation of a board member conflict of interest. Clark and her clients alleged that ZBA member Danielle Sikkila showed bias when she “liked” a Facebook post related to the property involved in the case, which was discussing the properties historic and current uses. The original post regarded former owner Patty Hoffman’s vision of conservation for the property, and criticized Elwell’s style of “rebranding” the house as “Millbrick House.”
The comment Sikkila “liked” was in response to this post, where the responder noted that Hoffman wasn’t the first person to own the home, that it had been originally been built by the Barrett family and that not every historic home is styled after the original inhabitants. Sikkila contended that she was not required to recuse herself, because she was responding to the sentiment that a person can call their house whatever they want, and it had nothing to do with the merits of the business.
“That may very well be true at a subjective level,” wrote the appeals board. “However, the Facebook ‘like’ at issue must be considered in context.”
The appeals board found that Sikkila’s “like” was in support of a response to a comment opposed to efforts to use the property for commercial purposes. The Silver Scones page also “liked” the same comment, affirmatively linking Silver Scones and Sikkila, and the appeals board found Sikkila should have recused herself.
The board found these two issues enough to remand the decision by the ZBA to issue the variance and vacate the original decision.
In a separate, but related appeal, the same group, with Clark, also filed an appeal of a driveway permit for the parking lot. In September, Elwell filed an application to widen the existing entrance to the lot, which was approved. Clark’s appeal sought to both rescind the driveway permit and have Elwell restore the stone wall that created the driveway opening.
Clark and her clients argued that Elwell did not meet certain provisions of the town’s driveway regulations and state statutes, namely that she did not include evidence that the driveway wouldn’t impact wetlands, that the town never determined that it is warranted or could be safely accommodated, that the removal of stones from the stone wall violated the state’s law on removing or altering boundary markers, that the Select Board engaged in ex parte communications and that Elwell misrepresented the purpose of the driveway, which was ultimately to support a commercial venture.
Clark appealed the decision to the Select Board, which upheld the granting of the permit, and then appealed that decision to the ZBA, which also upheld it.
The appeals board did not discuss the merits of the allegations, finding that Clark and her clients failed to file a request for a rehearing with the ZBA first, which would be a requirement before appealing to the Housing Appeals Board.
“The rehearing requirement as a prerequisite to appeal is not flexible,” the appeals board wrote.
Based on that, the appeals board affirmed the ZBA’s original decision to deny the administrative appeal, and dismissed the case.
Ashley Saari can be reached at 603-924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.