Webster weighs options after Board of Adjustment setback

Opponents' appeal prevails regarding definition of 'special exception', 4 to 1

Story, photos by Jack Driscoll

Webster's major setback boiled down to an interpretation of Rye's special exception ordinance.  It allows a nursing home or home for the elderly in a residential area.  But can a Continuing Care Retirement Community be defined as either?

The audience, made up of opponents and supporters of the proposal, was treated to an hour-long, fine-tuned legal debate between Atty. Timothy Phoenix, representing the Barbara A. Henson Trust and "more than a hundred others" opposed to the proposal, and Atty. Leo Loughlin, representing the Webster entity.

Zoning Board of Adjustment members ponder the attorneys' "battle of easels".

Perhaps members of the Zoning Board had their minds made up, but they were given a lot to think about by the range and thoroughness of both presentations.

Phoenix was up first, because he had entered an appeal of the Rye Building Inspector's recommendation to Webster that it go the special-exception route. With a rapid-fire delivery, Phoenix pounded away at the size and scope of the project.

"This proposal is for 40 detached, single or duplex housing units.  Those 40 are comprised of 44 separate homes plus 18 standalone homes.  That’s a total of 62 living units.  In addition…there’s going to be a large building that covers together with those homes approximately 344,000 square feet (it’s actually closer to 400,000 square feet if you include their parking garage)…The main building is going to be on three stories but the total area is 344,000 square feet."
"In addition…there are going to be 120 apartment-style units, 40 assisted-living units and only 20—I think that's important, too—only 20 out of 260 residents are going to be nursing-care units."

Phoenix then compared the proposed CCRC with the present Webster at Rye which was given the very special exception that Phoenix was arguing against for the new complex.

"That’s on a 50-acre site, essentially one building…covering 58,000 square feet and there’s a total of 60 units.  Those are comprised of 31 nursing care units or 51 beds…51 out of 86 residents are nursing beds and the rest are apartments. Seventeen are one-bedroom apartments without kitchens…and the rest are four one-bedroom apartments, one one-bedroom apartment for handicapped with kitchen and six two-bedroom apartments with kitchens.  The majority are not kitchens…the majority are what we would commonly call housing for the elderly or a nursing home."

Phoenix raised the issue of population, using statistics from the yet-approved 2006 Master Plan which, he said, reflects a population of 5,241, of which 986 are age 65 or older.  He maintained that the CCRC would add 26% to the senior population and 10% to the overall population.

Turning his attention to the history of the Rye "special exception" ordinance, Phoenix ticked off the progression:  Rye permitted a convalescent or nursing home in 1966: then in 1977 it granted Webster permission to build a "home for the aged", informing Webster in 1979 that it had erred in granting that designation; then in 1982 the Rye ordinance was amended to allow for "home for the elderly".

As of 2007, Phoenix said, Webster has spots for 51 nursing-home residents and 35 independent-living residents.

Summarizing, Phoenix (pictured at right)ticked off two reasons why Webster doesn't meet the ordinance's special-exception definition:

"1.  Webster at Rye's history and the Rye zoning ordinance demonstrate the conceptual 260-resident CCRC far exceeds the reasonable scope a project intended as a convalescent home for the elderly. We believe the definition is gleaned from Webster's history.

"2.  In 1966, when the ordinance was passed, and in 1972, when the ordinance was changed, I believe that no one in town and no one on any of the boards had heard of a CCRC, so the concept of a large, multi-unit facility...could not have been in anyone's mind."

Phoenix admitted that the CCRC "does contain components of a nursing home or home for the elderly, but it contains more than that."
"It's like comparing a house cat to a tiger; we can live with a house cat in our neighborhood, but at some point the cat gets too big to have around, and we think this is the case here."

Phoenix  also referred to a 1999 letter to the ZBA from Town Counsel Michael Donovan who raised a warning to proceed carefully in regard to assisted-living proposals to be sure they do not "transcend the original intent of the zoning ordinance."

ZBA member Benjamin T. King interrupted to ask whether Phoenix would agree that in the ordinance "home for the elderly is not defined."

Phoenix said yes, but added, "one thing you look at is the plain and ordinary meaning of the term, along with history as a consideration.."

"Aren't you asking us to graft onto the ordinance?" King pressed.

Phoenix disagreed, citing, as an example, the plan for duplexes, not allowed in Rye except in an RCD (Retirement Community Development).  He said the CCRC proposal "opens the floodgate to anyone who wants to put any type of residence anywhere in Rye that's targeted to people of a certain age, 62 or 65, whichever it is."

In his summation, Phoenix said, "...the history of Webster, the history of the zoning ordinance, Webster's admission as to the differences between the current model and the old model, the size and scope of this project...the common meaning of home for the elderly and nursing home, the statutory distinction and the vast, essentially commercial services all combine to make this project--although we agree in theory that it's a good project, we understand why it's being done, it's good for seniors, we have no problem with the concept of the CCRC,but it doesn't belong here, and it doesn't follow this ordinance."

Loughlin responded in more of a professorial tone, starting off with a story about a case in Kingston in which he  represented the town and Michael Donovan represented abutters to a property on which Hannaford's wished to build a store.  Loughlin said he liked an analogy Donovan used regarding the need for the person appealing to have the burden of proof.  The analogy had to do with a referee in a football game when there is a play challenged on the field.  "The play stands unless there is a piece of evidence the referee was wrong," Loughlin quoted Donovan as saying.

Loughlin went on, "there needs to be 'conclusive evidence'."

He too pointed to the evolution of the Rye ordinance, saying it was amended in 1978 to allow for independent-living apartments.

The difference between a home for the elderly and a retirement center?  Loughlin said, "That's a distinction without a difference."

"Webster is a retirement center, and that is essentially what a home for the elderely is," said Loughlin.

"What does nursing home or home for the elderly mean in 2007?  Are we stuck in some time warp that that was was meant by home for the elderly in 1981? I hope not."

Loughlin (pictured at right) stressed that the zoning ordinance, "like the Constitution, is a living document," pointing out that the concept of a single-family home in the 1950s differs markedly from what is being built today, as evidenced by the homes in the Wentworth area. "What is permitted today in Rye differs a heck of a lot," he said.

"So it's not what some people envisioned in some narrow sense when the ordinance was drafted; it's what the term reasonably means today," said Loughlin.  "I would put the stress on:  It's a home.  It's a home for the elderly."
He too cited Donovan's May 11, 1999 letter to the ZBA, stating that the letter supported Webster's position.  Loughlin then read a portion of the letter:

"Trends in the medical care field have changed dramatically in recent years. Types of facilities referred to as residential-care facilities in New Hampshire regulatory law have evolved as alternatives to the type of medical care provided by what were once called nursing homes.  Such residential-care facilities offer various types of independent living arrangements mixed with varying levels of medical care."

Loughlin said Donovan went on to refer to the Rye ordinance when he wrote: "Under the rationale used by the Board of Adjustment in 1982, facilties which in land-use language are closer to apartment development than nursing homes could be built in Rye by special exception as homes for the elderly."

Louglin added:  "Right on point."

In the face of Donovan's input, the ZBA took no action, Loughlin said. "Apparently they were satisfied with the legal wording of the ordinance as it was."

Turning to the issue of size, Loughlin politely took exception to Phoenix's comparisons with the size of Wal-Mart..  "They got a little down the road," Loughlin said, pointing out that the store has 25 acres of pavement.  He offered a different comparison for the board to consider:  "The best example is RiverWoods," he said. (RiverWoods located in Exeter consists of two CCRCs, one with 261 units and the other with 133 units; and in mid-April RiverWoods applied to build a third complex of 147 units just off Route 111.)

"CCRC is not a sea change; it is national evolution of land use," Loughlin argued.  He pointed to the differences in hospitals today as compared with 50 years ago.

"I don't think anyone here questions that Webster at Rye is a home for the elderly. If they added a pool, it would still be a home for elderly."

Taking one last exception to his opponent, Loughlin decried the reference to a "massive stucture" and a "minicity", saying:  "Size isn't what controls."

But, after hearing from a dozen members of the audience, three ZBA board members seemed to take the position that size is in fact what controls.

Shawn Crapo said he had googled "home for elderly" on his computer and came up with 40 links.  "All referred to 40 units or less."  

Jay Nadeau summed up by saying, "This is not for Rye.  The proposal is out of keeping with Rye."

Ray Jarvis was even more size-explicit:  The proposal "flies in the face of everything small towns try to control.  Size does matter."

The fourth vote against was cast by chairman Frank Drake, who seemed to leave the door open for a different approach.  "I don't think it should come in through the special exception," he said.  "We are not here to redefine things." He emphasied that the board needs only to react to the ordinance to decide what to do.  "We aren't supposed to create zoning.  There are other avenues. This is not the right one, coming in this way."

The lone vote for granting the special exception came from King, who summed up his feelings by saying, "You need to look at the plain and ordinary meaning of the words."

It turned out to be a bittersweet week for Bill Henson, a leader of the opposition and a West Road abutter to the property proposed for the CCRC. Henson is chairman  of the board for the Mark Wentworth Home in Portsmouth, which announced in mid-April that it was forced to close its senior-care facility due to the discovery of mold in the walls.  

Until January of next year, the 38 patients of the Pleasant Street home for the elderly will have to be moved to comparable locations, Henson told the Portsmouth Herald, and the 50 employees will have to seek employment elsewhere.

Two years ago the Wentworth announced that it was shifting its focus from nursing care to assisted living.  At the time a Wentworth official was quoted as saying, "People don’t want the medical model anymore. They want more of a social model."

May, 2007