Panel mulling if former rule better
NASHUA – From one point of view, a former zoning board of adjustment procedure gave developers too much power to get their projects passed.
From another, the current procedure puts too steep a hurdle in developers’ paths.
Those conflicting views lay at the heart of a debate by an aldermanic committee last week as it considered legislation that would allow the zoning board to revert to its prior practice.
“Basically, the applicant would cherry-pick his board,” Alderman-at-Large Fred Teeboom said of the old procedure, which was changed in 2007.
The change, however, created “a significant hurdle to go over” for developers, countered Gerry Reppucci, an alternate member of the zoning board.
Both spoke Thursday at a meeting of the aldermen’s personnel/administrative affairs committee.
State law holds that at least three of five zoning board members must vote in favor of a developer’s application for it to be approved. By law, zoning boards consist of five regular members and five alternates.
However, many cities and towns – including Nashua – have had trouble filling all the slots. Currently, the city has five regular board members, but only two alternates. In past years, there were even fewer positions filled.
Before 2007, city procedures gave the option for developers to request a postponement if fewer than five members attended a zoning board meeting.
If three members showed up, developers could simply ask that their item be postponed until a later meeting when five members were present. If four members were present, developers could make the same request but would have to pay a new application fee.
Teeboom argued those regulations allowed developers to keep delaying their projects as they waited to appear before a board consisting of members they felt would be favorable to them.
For some controversial projects, a hundred residents would pack the City Hall auditorium, only to have the developer request a postponement because fewer than five board members were there, Teeboom said.
In 2007, the new procedure prevented the zoning board from making any rule that would allow the applicant to require more than a quorum of three members to vote on an application.
A developer could still withdraw and later refile his application, but he’d have to pay a refiling fee set by the board.
Currently, legislation sponsored by Alderman-at-Large Steven Bolton would undo the 2007 change.
Bolton didn’t attend the committee meeting, but Reppucci said he thought the legislation might have been spurred by concerns he had raised.
If three members were needed to approve an application and only three members attended a meeting, that would put an unfair burden on developers to have to win over a unanimous vote, Reppucci said.
Sean Duffy, the zoning board chairman, said his panel could work with whatever the Board of Aldermen ultimately decides. However, Duffy said he favored returning to the pre-2007 procedure.
“It is an applicant’s forum, as is any court case,” Duffy noted.
By state law, the Zoning Board of Adjustment is a quasijudicial board, meaning it has the authority to rule on applications, or cases, brought before it. A developer unhappy with a board ruling could appeal to superior court if he felt there were procedural, constitutional or other grounds for such an appeal.
While he has been the chairman, the zoning board heard many cases with fewer than five members present, Duffy said.
The legislation is being held in committee for further discussion before it goes to the full Board of Aldermen.