By GAIL OBER, LACONIA DAILY SUN
TILTON — Tilton is suing itself over the handling of a variance for a repair shop.
The Board Selectmen filed a petition in the Belknap County Superior Court to overturn a decision made by the Zoning Board of Adjustments to allow by variance an automotive repair shop along Laconia Road.
Selectmen say the ZBA didn't deliberate or make any findings regarding the five separate criteria required by state law to give Jeremy Perkins a variance, according to its minutes of June 21.
Attorney Paul Fitzgerald said there is "nothing in the motion ... that reflects a discussion of public interest, the spirit of the ordinance, substantial justice or impact on values."
Rather, he said the discussion centered on the hardship clause and he claims the minutes reflect that the ZBA "itself struggled to supply a basis for the hardship" rather than have the applicant make his own hardship argument, which is what the selectboard said should have happened.
The suit says that, according to the minutes, one ZBA member stated it was hard to come up with a hardship and if the applicant had been the actual property owner, "There would be no hardship of any kind."
Selectmen contend that a hardship cannot be ownership alone but must be directly related to the "unique attributes" of the property itself.
Fitzgerald said having two automotive repair companies nearby doesn't constitute a hardship for a new applicant.
He notes the two existing shops were "grandfathered," as they were permitted before the town ordinance changed to disallow that activity in that zone.
He said the hardship that the ZBA created on its own was that the location of the building is such that it is not easily visible from the road, not something that could be attributable to the property itself.
Selectmen say there are other allowable commercial business existing in that zone, which indicates the property can be used for other enterprises.
The pleading also notes that at some point the minutes of the June 16 ZBA meeting were altered or amended, as is reflected in the minutes of the Aug. 16 ZBA minutes. Selectmen say the alterations were an "obvious attempt to bolster the record in the matter in support of an unsustainable grant of a variance."
Selectmen contend that even with the alterations, the variance is still not supported by law.
The town's ZBA has not responding to the pleading.
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