Sanbornton subdivision fight not over yet

It appears that the wrangling between the Thompson family, which has been trying to get site plan approval for a “cluster” residential subdivision on its land since 2004, and the town Planning Board may not be even close to an end — despite a Belknap County Superior Court ruling in the family’s favor.

Last week the board conducted a site review of the 35-acre property off New Hampton Road/Rte. 127 and, at the conclusion, family members Peter and Christine Thompson, who co-own the land with John and Donna Thompson, told Town Planner Bob Ward they didn’t want to accommodate any more site visits and hoped the board would reach a conclusion quickly.

“They seem to think that they have to start (the whole review process) from scratch,” said Peter Thompson Saturday. “We’ve already introduced all the information they need to make the decision. They approved 13 lots but without any ‘bonus’ lots, which is guaranteed by state statute (because it’s in the town’s cluster zoning ordinance).”

But Board Chair Helmut Busack said his group is not likely to issue any decision at its next meeting, scheduled for Thursday at 7 p.m. in the town office building.

“Nobody is bound to make a decision just because somebody else says so,” he said. “We have to review what’s gone on, and then we have to review all the information before we make any decisions. Then we’re going to have a meeting — what’s actually called a non-meeting — with the town counsel (Christopher Boldt of Exeter) to have him review it. He’d have to advise us as to what to do before taking the next step so we can avoid going to court again. Because the Thompsons like to go to court.”

Busack insisted that Thursday’s meeting would be handled fairly and in a “normal” way. “We’ll look at the aerial views of the back of property. . . There’s lots of questions to be asked yet. We’re not going to be pushed around or yanked around by the opposition’s counsel.”

Busack was apparently referring to a letter written by attorney William Philpot of Laconia, who is representing the Thompsons, to the Planning Board’s then-acting Chair Don Bormes. The July 24 letter indicates that the family expects a relatively quick decision based on the court order issued by Superior Court Judge Larry Smukler on Dec. 27, 2006.

“It became painfully clear at the last public hearing on June 21, 2007, that you, as acting chairman, and certain board members were operating under the assumption that the remand (order) by the court was an opportunity for the board to reopen the hearing process, and receive evidence and make a decision without giving the slightest regard for the scope of his honor’s (Smukler’s) limited remand order,” Philpot wrote.

The attorney wrote that the board must stick to the specific information outlined in Smukler’s order, which had to do with the number of lots the board originally approved. “The board must decide on the merits how many lots will be permitted on an open space (cluster) subdivision plan under Sanbornton’s zoning ordinance,” the judge wrote.” In order to make this determination, the board must decide how many lots would fit on a conventional subdivision plan.”

According to the town’s zoning ordinances a “cluster” development is allowed to have the same number of homes a standard development would be allowed even if the homes are “clustered” together in a way that preserves more open space.

Philpot’s letter says that the board must stick to the issue addressed in the order — and not consider any other information discussed in the past, including wetlands, steep slopes or the suitability of an access road on to the development. “The court’s remand order is clearly limited in scope for review for your board and not therefore open to general review,” the attorney wrote. “Previously your board approved 13 lots. The remand order does not give your board the ability to go back and approve less than 13 lots.”

The Thompsons first submitted their site plan application to the Planning Board in 2004. After several meetings with that board and the Zoning Board of Adjustment (ZBA), the family submitted a “yield plan” which indicated that if the property were subdivided under normal zoning regulation it would be allowed 15 homes — and, under town zoning regulations, the same number should be allowed for the “cluster” development.

But with a significant amount of wetlands and some steep slopes on the land, the board was unable to reach agreement on whether that was an appropriate number. Finally the members “compromised” on 13 lots.

The Thompsons then filed suit against the town, claiming that the number was selected arbitrarily.

Judge Smukler agreed. “While the record indicates that the board was concerned about wetlands and steep slope constraints, it does not support a finding that this was the basis of its decision; rather the board set the number of lots at 13 as a compromise,” he wrote in his ruling. “This compromise may have been a gentlemanly attempt to settle a contested issue but it was nonetheless inappropriate under the law… Instead of determining how many lots Sanbornton’s zoning ordinance would allow the board decided to split the difference between 15 and 10,” both of which were proposals board members had suggested. “A compromise under these circumstances circumvents the board’s responsibility to make a determination on the merits.”

But when the board gathered at the town office building after its site review last week, the members discussed how little of the land was viewable — and its concerns about wetlands and steep slopes.

What could throw an addition curve into the proceedings is information Ward brought to the board’s attention recently. The planner said a letter from a member of the state’s Department of Transportation (DOT) advised that one of the development’s access road as noted on the “yield plan” map was in a place where there could be serious sight problems for drivers entering and exiting Rte. 127. He indicated that the plan would be unlikely to win DOT approval.

At last week’s meeting the board discussed the issue — as well as the fact that the “yield map” would be different than the actual “cluster development” map.

“And if that second entrance can’t go in there,” said Steve Ober, the selectmen’s representative to the Planning Board, “that changes the whole plan.”