The Francestown Zoning Board of Adjustment has denied a request from the Francestown Select Board for a re-hearing of their July 17 decision regarding the former Tory Pines timeshare complex on Tory Pines Road now owned by TAK Real Estate.

The July 17th motion passed by the ZBA removed language from a 2004 notice of decision which prevented residents of the units from becoming permanent residents of Francestown.

Both town counsel and an attorney representing TAK Real Estate had advised the town that the language from 2004 restricting residency was unlawful and unenforceable.

Since the July 17 decision, TAK has moved forward with renting out the Tory Pines units on a long-term basis. The apartment complex on the Crotched Mountain Golf Course has 24 units of one and two-bedroom apartments.

The units were previously owned by Wyndham Resorts and were rented out as hotel rooms and timeshares. Zach Markie of TAK Real Estate has stated that “the units have been very well maintained.”

On Aug. 12, the Francestown Select Board sent a letter to the ZBA requesting the zoning board consider adding additional conditions to the July 17 decision which would require TAK to come before the town’s Planning Board for a minor site plan review.

The ZBA held a special meeting to consider the Select Board’s request for an appeal on Saturday morning, Aug. 23. The ZBA denied the request for a re-hearing by a vote of 4-1, with ZBA member Sue Jonas voting against the motion.

Cindy St. Jean, chair of the ZBA, said that the board found that the Select Board’s request for an appeal “lacks specific grounds for a rehearing as required by RSA 677:3.”

“According to the law, they must provide grounds where the decision was unreasonable or unlawful, and I am not seeing that,” St. Jean said. “The legal grounds for a rehearing would have to be specified by the Select Board.”

The ZBA discussed the Select Board’s request in its entirety, which included the conditions the Select Board suggested should be added to the July 17 decision.

“These appear to be suggestions the Select Board would like to make, but they do not appear to be grounds for the decision being unlawful or unreasonable,” St. Jean said.

St. Jean said she had researched the law regarding the appeal process.

“Case law is pretty clear that when there are no grounds that are specifically provided which outline why the decision was unreasonable or unlawful, there are no grounds to grant a request for a rehearing,” she said.

Because the units are now being marketed as long-term rentals, the Francestown Select Board has repeatedly stated the opinion that the project constitutes a change of use and should require a minor site plan review with the Planning Board.

“One the advice of town counsel, we need to clarify the number of units, we need a site plan review, we need to look at life safety code,” said Select Board Chair Charles Pyle. “We just want to be sure there aren’t any changes in requirements when it is going from short term to long term use.”

At the Aug. 25 meeting of the Francestown Select Board, Town Administrator Jamie Pike confirmed that the town had sent a letter to TAK Real Estate requesting the developer apply to the Planning Board for a minor site plan review, but that TAK had not yet responded to the request.

Select Board member Scott Heath said that the situation “has a lot of gray area as far as who is supposed to be enforcing what.”

“As far as I am concerned, they still need to do site plan review, as it was one of the previous conditions approval, so it still applies,” he said.

Select Board member Karen Fitzgerald agreed, noting that “anytime there is a change of use, there needs to be an inspection”

Pyle said if the board does not hear back from TAK by Sept. 15, they will “move ahead with considering their next steps. “