Gilmanton Zoning Board of Adjustment members (from left) Nathaniel Abbott, Elizabeth Hackett and Perry Onion review a variance request from Gilmanton Winery to operate a restaurant. Marshall and Carol Bishop, owners of the Gilmanton Winery, received their variance for an associated restaurant, but the board added conditions, including compliance with site plan regulations, a topic enmeshed in litigation and controversy. (David Carkhuff/Laconia Daily Sun)
A condition for site plan approval runs up against lawsuit between Bishops, Planning Board
By DAVID CARKHUFF, LACONIA DAILY SUN
GILMANTON — Marshall Bishop, newly re-elected as a town selectman, received more good news Thursday, March 16, when the Zoning Board of Adjustment granted him a variance to run a restaurant at his winery.
With last week's vote, Marshall and Carol Bishop, owners of the Gilmanton Winery, have acquired all of the pertinent permissions — a special exception and a variance — provided by the town's land use authority, the Zoning Board of Adjustment.
"A variance is permission granted to use a specific piece of property in a more flexible manner than allowed by the ordinance; a special exception is a specific, permitted land use that is allowed when clearly defined criteria and conditions contained in the ordinance are met," according to the New Hampshire Office of Energy and Planning.
There's a rub, however. The latest approval of a variance came with a condition that Marshall Bishop "fulfill site plan review requirements," a condition that clashes with an ongoing legal standoff. Bishop is not scheduled to appear at the Planning Board for a site plan update and actually is in the midst of litigation with the town challenging that requirement.
Planning Administrator Diane Marden confirmed that nothing is on the agenda before the Gilmanton Planning Board involving the Bishops and their winery.
Based on the ongoing litigation, town staff are not commenting on the Gilmanton Winery regulatory process, according to Town Administrator Heidi Duval. But it's clear that something has to give.
The legal battle started months ago.
On Jan. 20, the Planning Board, through attorney Paul Fitzgerald of Wescott Law of Laconia, submitted a "respondent's answer and request for declaratory relief" at the Belknap County Superior Court. In this document, the Planning Board asserted that the Gilmanton Winery has been operating "a full service restaurant with onsite food preparation without appropriate approvals from the Planning Board."
The Planning Board asserted that a special exception granted to Gilmanton Winery by the Zoning Board "provides that the 'site will be overseen by the Planning Board' and the Petitioners have refused to return to the Planning Board for such oversight and review."
The Planning Board asked the court to find that the Bishops are not in compliance with "laws, ordinances and Planning Board approval conditions" and that the Bishops must submit a new site plan application to the Planning Board to "bring the winery into compliance."
In an emergency petition for a temporary restraining order, the Bishops argued that the Planning Board, in a letter from Oct. 27, 2016, "threatened a cease and desist order if Mr. Bishop did not submit a new site plan application by October 26, 2016, for review at the Planning Board's November 10, 2016 meeting. Notably, the letter did not cite any specific violations within the Planning Board's authority or any justification for requiring a new site plan application."
The Bishops, through their legal counsel, Bianco Professional Association of Concord, asked the Planning Board to "specify the particular regulations or laws it alleges the Winery has violated and the supporting allegations that would justify forcing the Bishops to begin site plan approval anew."
This legal dispute remains before the Belknap County Superior Court.
Elizabeth Hackett, chairman of the ZBA, said the board scheduled the March 16 hearing to give time for the litigation to be resolved.
On Thursday, Brenda Currier asked the ZBA why the variance request had been rescheduled while the litigation remained unresolved.
Hackett said she called the New Hampshire Municipal Association to seek legal counsel.
"The lawyer was very familiar with what is going on because of the things in the paper and all the rest, and said that absolutely this variance, whether we give it or not, has no bearing on what would happen with the Planning Board, so we decided to go forward," Hackett said.
"I was given carte blanche to go ahead and do this," she said.
In further questioning, Currier reviewed meeting minutes to point out references to the site plan review, wondering why Bishop had not returned to the Planning Board.
"You granted a special exception, and you led us all to believe that once that was done, Mr. Bishop would then go up to the Planning Board and meet with them, and they could do what they needed to do," Currier said.
"There is not anything to do with the winery on the Planning Board's agenda. I just feel that you're putting the cart before the horse here," she said.
Hackett explained that the Planning Board would review details of operation while the Zoning Board would consider land use law.
"The Planning Board approves the whole plan, we do not. We are concerned with the use of the property alone," Hackett said.
Currier objected, saying, ""Even though you have no jurisdiction over the other board, it just feels like that's being forgotten," referring to the Planning Board's role.
Currier then challenged Zoning Board member Nathaniel Abbott, asking why he had not recused himself. Abbott said the question was whether the Bishops could use the property for what they want to do.
When Currier began to respond, he said, "I'm not asking to debate with you."
Abbott said, "I have a right as a citizen to my opinion and to develop it in any way I choose," and declined to recuse himself.
"I have nothing to personally gain from my vote tonight," Abbott said.
Abbott then launched into an overview of town planning and changing attitudes. He described a shift toward a business-friendly tilt on boards. The Gilmanton Winery, he said, "is on a property that actually has a really significant historical importance in the standpoint of this town, which puts it in a unique and difficult position."
The Gilmanton Winery, in the former home of Grace Metalious, who wrote the famous and controversial novel, "Peyton Place," should be given consideration as a landmark, Abbott said.
"I think the town should frankly be shaking Marshall Bishop's hand and thanking him for bringing a business into this town that's bringing notoriety, it's bringing fame. Do I think he gets to snub his nose at the laws and ordinances of the town? Absolutely not."
Abbott argued that a "regulatory snafu" caused the current situation involving the Gilmanton Winery.
Numerous cases before the ZBA involve properties that are out of compliance with zoning, many predating the zoning code, he said.
"But I did want to state my belief about what the town's attitude should be toward businesses that bring a lot of value and good notoriety and operate well and distinguish themselves."
Currier said, "Personally, as a taxpayer, I feel the snubbing is happening, and that's why the town is in court, and it's costing me money because of the snubbing."
Bishop said he could not speak freely because of the litigation, but he said, "I feel like I have not done anything wrong."
Bishop said he was granted a dining facility with the authority to have five dinners a week and to have bus tours and functions.
"I want to set this right," Bishop said.
Bishop described the directions he received, which he said he followed.
Under a septic plan, Bishop said the New Hampshire Department of Environmental Services requested he install a 2,000-gallon tank and take the old tank and use it as a grease trap.
Bishop said he uses portable toilets for events.
"It's preposterous that we would even have 500 to 800 people a week in there," Bishop told the ZBA. "The most we've had was about three years ago, 175, but that was with a tent outside," he said.
Zoning board member Perry Onion urged a condition that Bishop go before the Planning Board for site plan review.
The timing, Onion said, would be up to the Planning Board.
Abbott said, "I just feel as though we're reaching in where we don't really have a place to reach in."
Onion disagreed, so Abbott suggested a "compromise." The applicant must fulfill Planning Board site plan review requirements, he said. Onion said this condition would give Bishop room to avoid returning to the Planning Board.
"Then you go back to what happens if he thinks he has?" Onion said.
Hackett said, "Then, it's a Planning Board issue, not ours."
Abbott made a motion that the variance be granted allowing the Bishops to use new construction for a restaurant in the rural zone, with other conditions to include limits on daily service until a state-approved water system is installed; and limits on food service until state-approved septic systems are installed.