Nugent Waiver Denied
By Rob Maxwell
At a brief and sparsely attended meeting on Tuesday, August 22, the Colebrook Zoning Board of Adjustment unanimously denied John Nugent's application for a zoning variance, effectively ending his effort to construct a new rental location for the town's state liquor store.
Mr. Nugent brought the issue to the ZBA after the planning board refused to issue him a Zoning Certificate of Compliance on July 11, as part of a site plan application for a proposed addition to his North Woods Truck Stop building on Route 3 that would house the liquor store.
At a public hearing on August 8, ZBA members Sam Bird, David Thatcher, Joe Anderson, Brian LaPerle and Chairman Dennis Bailey gathered input from Mr. Nugent, property abutters, attorneys and civil engineers concerning the legal and traffic safety ramifications of the board's choice to grant or deny the variance. Mr. Nugent's plan called for a 97-foot wall that would run parallel to Route 3 and did not meet a 20-foot setback required by a Colebrook zoning ordinance.
In New Hampshire, Zoning Boards of Adjustment are required to base their deliberations concerning variances in accordance with strictly defined statute, under which calls for applicants' requests must meet five criteria: (1) The variance will not be contrary to the public interest; (2) The spirit of the ordinance is observed; (3) Substantial justice is done; (4) The values of surrounding properties are not diminished and; (5) Literal enforcement of the provisions of the ordinance would result in an unnecessary hardship.
Board member David Thatcher opened Tuesday's meeting by reading from a three-page, written opinion crafted with assistance from attorney Bernard Waugh that pointedly referenced Mr. Nugent's failure to meet the required five criteria. "The unnecessary hardship criterion has not been here," said Mr. Thatcher. "Mr. Nugent has not identified any special conditions of the property that distinguishes it from other properties in the area. Mr. Nugent's testimony that it was in the public interest to keep the State Liquor store in Colebrook... is not a factor which relates to the use of this particular property."
Mr. Thatcher went on to read, "Mr. Nugent's claim that the 20-foot setback is unnecessary for safety is in reality a quibble with the ordinance itself--an argument which would be the same with respect to any property in Colebrook--and not one based on the special circumstances of this property."
Mr. Thatcher's opinion furthered the notion that granting a variance would likely set a potentially harmful precedent. "The town must treat all similarly situated landowners impartially and alike, and the argument advanced by Mr. Nugent could just as easily be advanced by most landowners in Colebrook, whereas if variances were granted to all such owners, the cumulative impact would clearly be contrary to the spirit of the ordinance."
Following Mr. Thatcher's statement, Mr. Bailey opened the floor for input from other board members. Brian LaPerle noted, "Use of one's land outweighs all other consideration and people should be allowed to do what they want with their own property, but if we approve the variance, it appears very likely that the variance will be overturned on appeal."
Mr. Bailey told the board, "Attorney Randall Cooper's public testimony and the memorandum he presented to us on August 8 clearly said that the five criteria had not been met, and I agree with this opinion."
Sam Bird added weight to Mr. Bailey's opinion, saying, "Even if Mr. Nugent meets only one or two of the five criteria, it seems that approval of the variance would eventually be overturned in court." Mr. Thatcher told the board that while considering the input from all parties involved, and in view of the five criteria necessary to grant a variance, "It just doesn't seem to me that they were all met." He then moved to deny the variance, and the board unanimously passed his motion with no further discussion.
The Colebrook planning board will meet on Tuesday, September 5, and should Mr. Nugent continue to pursue approval of his site plan application there, it is unlikely he will receive a Zoning Ordinance Certificate of Compliance in view of the ZBA's denial of a variance. Mr. Nugent has 30 days to appeal the ZBA's decision before Coos County Superior Court, and when asked on Tuesday if he had plans to do so, he said he was not yet sure of his plans.