Judge: ZBA erred in Elm Street retaining wall decision; sends matter back to board

LACONIA — A superior court judge has ruled that the city's Zoning Board of Adjustment did not abide by the city’s zoning ordinance when it ratified a ruling by the planning director regarding an element of the Paugus Elm project on Elm Street.

Peter Brunette, who lives at 15 Park Street, and is an abutter of the major redevelopment project, took the ZBA to court for failing to do its part to adequately determine if Planning Director Dean Trefethen’s decision regarding a retaining wall was in accordance with the zoning ordinance.

At issue was Trefethen’s determination that a corrugated metal retaining wall being installed 2 feet from Brunette’s property line was a not a structure, but rather a construction technique, and so could be installed within the 5-foot setback.

But Judge James D. O’Neill III ruled that finding was wrong.

Specifically, in a ruling issued on Feb. 17, he concluded the retaining wall was a structure because the city zoning ordinance clearly states that a structure is anything that has a “fixed presence in the ground.”

The retaining wall was installed to prevent soil in the embankment from sliding down to where the foundation of a parking structure was to be built. Because, Trefethen and the ZBA reasoned, the retaining wall would no longer provide structural support once the foundation was in place it, therefore, was not a structure.

“Such analysis is superfluous and presents a red herring,” O’Neill wrote.

O’Neill ordered the ZBA to take up the issue in Brunette’s appeal again.

The board’s next meeting is scheduled for March 21, but whether the board will reconsider Brunette’s appeal at that time is unclear.

Trefethen was unavailable for comment Friday.

At a court hearing in December, the city’s attorney Joseph Driscoll said ZBA had handled the issue appropriately.

“They (the ZBA) made a lawful decision based on credible information provided to them at the time.” Driscoll told the judge, referring to the July meeting when the board affirmed Trefethen’s decision.

But at that same hearing Brunette said that since the term “construction technique” is not mentioned or defined in the city’s Zoning Ordinance, the ZBA should have shown greater independent thinking to determine whether Trefethen’s finding was, in fact, in accordance with the ordinance.