Attorney Challenges Planning Board Decision Against Reconsideration

An area attorney is challenging the Planning Board’s decision not to reconsider the residential site plan application of her client. Patricia Panciocco, representing Lenox Avenue LLC, submitted her letter June 4 for consideration during the June 5 Planning Board meeting.

The parcel is PID 32040. The hearing was continued from April 3 to May 15 in order for the board to complete a site walk on the property. In the May 15 meeting, Panciocco and surveyor Tim Winings of TJW Survey represented the applicant. Winings said he had made several changes to the plan, including changes to the driveway and site distance, and also changing the title on the plan to clarify it is for condominiums.

While the board accepted jurisdiction of the Residential Condominium Site Plan and also accepted a waiver from the requirement for underground utilities, Town Administrator John Anderson restated a previous objection to the plan, noting that it cost more than $14,000 per year to educate a child in Derry. Anderson said the duplex could add five or six children to the schools, with tax revenue of only $10,000.
The board reconsidered the waiver, with a vote of 3-6.

The dissenting votes were largely due to a perception that having the applicant place the utilities underground was not a hardship. Member Darrell Park said at the time that the proposal would detract from the “history, character and integrity of the neighborhood.” Member Randall Chase said although the developer had made several changes, he had reservations and would vote no. The approval of the completed application failed 3-6.

Panciocco asked the board to reconsider the issue, and Chairman David Granese asked the board if that was its wish. When the members did not respond, Granese told Panciocco there is a 30-day appeal process.

In her appeal, Panciocco charged that “bias and prejudgment” were replete in the minutes of the meetings, and criticized board members Anderson and Granese for voting against the plan. She wrote in her letter, “Planning board members have a statutory obligation to call upon fellow board members to recuse themselves when they are unable to review an application objectively. RSA 673:14 (II).”

Panciocco also claims that an “administrative gloss” has been cast on Sect. 165-8 of the Derry Zoning Ordinance as to how it is applied in the MHDR (Medium High Density Residential) zone.

She wrote, “An “administrative gloss” is a historical interpretation and application of an otherwise ambiguous regulation, or conflicting regulations, to similarly situated applicants. Ambiguity arises when regulations cannot be strictly reconciled. She cited examples such as “numerous multi-family projects where more than one structure is located on a single lot, such as Peabody Row, Sundown Drive, Misty Morning Drive, East Broadway, Perley Road, Stonegate Lane, North High Street, Covey Run and the Fairways.”

Panciocco also contends that New Hampshire planning boards “have no authority to interpret, regulate or enforce zoning, except as expressly authorized by statute or delegated by others within the municipality. The use of land within the Town of Derry is governed exclusively by the Ordinance. Likewise, density is also controlled by the Ordinance and the density proposed by this Application is less intense than the area within which it is proposed.”

Panciocco concluded, “(a) my client relied on several town official decisions, in good faith; (b) that reliance was wholly reasonable and similar to that given to others in the past; (c) those town officials have a long history with the Town; and (c) to its detriment, my client substantially invested in the survey, engineering and plans to submit a completed Application.”

Panciocco urged the board to reconsider the application, noting, “Although RSA 677:15 is silent regarding reconsideration, this request is made to avoid wasting public funds to defend an illegal and unreasonable decision that is not supported by the record, or the law.”

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