Superior Court rules Meredith ZBA was in error on Foundry Ave. case

MEREDITH — The decision of the Zoning Board of Adjustment to grant a variance to allow a variety of commercial uses on the portion of the lot at 22 Foundry Avenue — within a residential district — was set aside last week in Belknap County Superior Court.

Justice James O'Neill III upheld the appeal of the decision lodged by the Board of Selectmen at the urging of residents Paula Wanzer, Duncan McNeish and Chuck Braxton, who stressed that the ZBA overlooked the threat to the water quality of nearby Lake Waukewan, the source of the town's drinking water, posed by permitting industrial uses within the watershed overlay district.

The property at 22 Foundry Avenue, owned by Foundry Avenue Realty Trust, originally consisted of two lots that were merged in 2009. The first, a one-acre parcel fronting on Foundry Avenue in the business and industry district, houses Lakeside Plumbing & Heating and is flanked on the west by Stewart's Ambulance Service and on the east by Comstock Industries. The second, abutting the first to the north, is a four-acre wooded lot, crossed by a wetland on the east, which lies entirely in the residential district.

The only access to the residential portion of the property is through the business and industry district.

The owner sought the variance to construct a building on land in the residential district that would serve as a warehouse or house light manufacturing, building trades or equipment and truck repairs. The board, with one dissenting vote, granted the variance on March 10. The majority of the ZBA found that because of its proximity to commercial enterprises and lack of appropriate access, the land is not suited to residential development, despite its zoning.

At the urging of shorefront property owners on Lake Waukewan, the selectmen, by unanimous vote, asked the ZBA to rehear the matter and reconsider its decision. At a hearing in May, town counsel Laura Spector, representing the selectmen, argued that the owner failed to satisfy the five criteria required for a variance. In particular, she claimed that "without knowing exactly what the proposed use is, there is no way the ZBA can meaningfully evaluate the criteria for a variance." Nevertheless, with one dissenting vote, the ZBA reaffirmed its decision granting the variance, prompting the selectmen to appeal to Superior Court.

Echoing Spector's argument, O'Neill held "by a balance of the probabilities that the ZBA's decision was unreasonable because it did not know the precise use sought by Foundry (Avenue Realty Trust). The ZBA granted a variance," the justice continued, "to allow 'warehousing, light manufacturing, building trade or repair shop and/or equipment and truck repair facility in (a) residential district.'" Without knowing the precise use, he wrote, the ZBA could not determine whether the requirements for the variance were met. Setting aside the variance, O'Neill remanded the case to the ZBA.

The ZBA has 10 days to ask the court to reconsider its order and 30 days to appeal the decision.