Plenty of heat as Saunders development proposal loses, 4-1

After approving 8-house plan, Zoning Board reconsiders and rejects 6-house concept

Jack Driscoll


In morning light the view of Saunders Restaurant and, to its left, homes at the end of Harbor Road up to breakwater, as seen from commercial wharf at Rye Harbor. (Jack Driscoll photo)


Never again is Rye likely to experience a night like August 19.

About 250 residents — the biggest meeting turnout of any kind in years — swarmed out of the 93-degree night into the Junior High auditorium where the temperature was even higher.

The heat was too much for many who started leaving within the first hour, with others drifting out during a midway break. But in the end — 5 1/2 hours later — there were still about 100 hanging in for the verdict: a 4-1 rejection of a bid to build six free-standing homes on two lots totaling nearly three acres now occupied by Saunders Restaurant and its overflow parking lot. (To see the application for the revised plan, click here.).

The decision could be appealed within 30 days, but it was unclear what next steps might be taken by any of the parties as the Labor Day break approached. A court appeal is also an option.

When Frank Drake, chairman of the Zoning Board of Adjustment (ZBA), brought the meeting to order at 7:12 p.m., he and the other four board members faced an audience that clearly was 90 percent opposed to the development proposal offered by Rye Harbor Realty LLC, headed by Jim Nadeau of York, Maine, who arrived carrying a fan that did little good given the hot, muggy night that was made worse by body heat.

Many attendees were supporters of a newly-formed citizen group, the Save Rye Harbor Coalition, organized by Saunders neighbor Atty. Mae Bradshaw. Coalition placards dotted front yards throughout the town for two weeks before the hearing.

The board also faced an impatient audience, sometimes stamping their feet in protest of the lengthy presentation by the applicant's attorney, Peter Loughlin, whom some charged with deliberately dragging out his case. Occasional outbursts tested the patience of Chairman Drake whose board seldom meets for less than four hours on even a normal meeting night due to the nature of the applications it hears.

One interruption came halfway through the proceedings from Planning Board member and longtime Rye political figure Mel Low, who complained about the slow progress. "If we vote at 11:30, the elderly people will either be at home or in Portsmouth Hospital," Low said.

WATER BY THE CASE

The fact that no one succumbed to the heat was due in part to the actions of Nick Toumpas, the state Commissioner of Health and Human Services and a Rye resident, as well as a crew from the Rye Fire Department.

Toumpas ran out and bought four cases of bottled water to pass among the crowd.

"I became very alarmed when about 30 minutes into the presentation, a man came out with his — I can only surmise — mother who was clearly overheating. As it was clear that the meeting was going to go on for some time and many of the people in the audience were senior citizens, something needed to be done."

Lt. Chuck Gallant of the Fire Department quickly followed suit, bringing in eight cases of bottled water from the nearby fire station.

"I had the duty crew go to the gym to check for exits, etc.," said Fire Chief William Sullivan, "and I am glad that they did … they had the good sense to stay there and watch over the crowd," said Chief Sullivan. "I understand that the fans were undergoing some summer time-type maintenance and couldn't be used properly."

The auditorium/gym has large ceiling fans, but it is unclear how helpful they would have been. Lt. Gallant said consideration was given to bringing in large fans the Fire Departments uses, mostly for smoke clearance at a fire, but they are so loud the proceedings would have been drowned out.

Attorney Burnham
Atty. Sheila Burnham of Jaffrey, who opposed the development on behalf of abutters, spoke at length, seeming to lose her place on numerous occasions. At one point she turned to the board to explain her dilemma: "My paperwork is getting soggy over here," she said.

While mostly combative, she did supply a moment of levity as the crowd got restless. "If you don't mind," she said with a smile, "I'll just drone on."

Smiling in return, Drake said, "Drone on."

But at least one person, sitting toward the back in the audience, took Drake's remark as being serious and insulting. "I didn't like the way you spoke to that lady," he said later.

The reaction of some of the principal players a couple of days after the marathon meeting suggested the dust may not be settled.

"The last syllable has probably not yet been written," said coalition leader Bradshaw.

"'Save Rye Harbor' is receiving e-mails and communications from Rye residents at the moment with prospects for a community resource," she added. "There will be more meetings of the Coalition, and proposals may evolve … Of course, there would need to be a willing and able seller.  I cannot  presume what the Saunders Trust will do next."  

R. Timothy Phoenix, attorney for the Saunders Trust, wasn't ready to answer the "What's next?" question but didn't mince words as to his position:

"Obviously, we were quite disappointed by the decision. Respectfully, we believe that the ZBA’s denial is in error," Phoenix said. "As to our response, we are still considering, along with Rye Harbor Realty, all available options. Decisions will be made within the 30 days permitted for a rehearing request."

Said Attorney Loughlin, "I think I now have a better appreciation for what it must feel like to be a Yankee playing at Fenway."

Getting down to specifics, Loughlin also didn't mince words:  "I think (in large part), the board granted the rehearing because of allegations of environmental 'concerns' raised by Mae (Bradshaw).  The evidence was pretty overwhelming that there are no environmental issues with this proposal, yet the drumbeat continues about how dangerous this proposal is for the environment."

Several board members had mentioned the number of bedrooms as being a factor in their decision. The original application, which actually was approved in April, called for eight homes under a condominium form of ownership, but after a rehearing was approved, Rye Harbor Realty renegotiated the sales agreement with Saunders and reduced the number of single-family dwellings. One board member also cited the fact that one home was on a corner and the driveway should lead onto the less traveled Mill Lane rather than Harbor Road, a point raised by Bradshaw.

"As for the bedrooms," Loughlin said, "we had 26 in April and 24 in August — we did not go from 2 bedroom units to 4 bedroom units as was alleged by Mae. We went from 6 three bedrooms and 4 four bedrooms to 6 four bedrooms.   As to the corner lot — I do not think that is a real legal issue in this case; however, Mae apparently feels that it is safer for the traffic generated by 3 homes (less than 15 cars entering and 15 exiting over each 24-hour period, according to national studies) to drive an extra 250 feet on Harbor Road and then drive a couple hundred feet on Mill land. Go figure."

Numerous issues were raised throughout the proceedings, such that — in between occasional outbursts of frustration — the audience seemed riveted to the details. Perhaps it took their minds off the heat.


Click on drawing for larger version of Rye Harbor Realty site plan as drawn up by Altus Engineering.



THE PROCEEDINGS

What follows is a summary of testimony:

ATTORNEY PETER LOUGHLIN, presenting on behalf of Rye Harbor Realty, Inc. — Loughlin contended "there is an incredible amount of misinformation circulating about the proposal," especially regarding environmental issues. He said the development would: reduce traffic, reduce pavement, reduce "the intensity of use of the land," increase environmental setbacks, increase open space, increase water treatment, and increase the town's tax base. He said the proposed six new houses would be on lots almost twice the size of nine existing properties on Harbor Road (12,000 feet vs. 20,375 feet on average). He added that those nine houses are on 2.5 acres versus the proposed six houses that would be on 2.8 acres. And later he said those nine properties had obtained 30 variances. He pointed out that the process began two days short of seven months earlier and that there were only about a half dozen speakers at two hearings. He said one of the issues was density, and "we have reduced density by 25 percent." He also stressed that the impervious surfaces would by reduced by 66 percent, "a significant impact on the environment," along with a "state-of-the-art septic system." (It was not mentioned at this hearing, but in previous sessions it was made clear the state would allow only one septic system for the two lots and that it had to be located on the overflow parking lot rather than where the restaurant is located due to proximity to the ocean.) Responding to what he referred to as "scare tactics", Loughin said,"I didn't find any sections that are inconsistent with the Master Plan." Pointing out that the ZBA heard six hours of testimony and voted in favor of the earlier proposal, he said: "The board's actions were consistent with the Master Plan." He answered the charge that public access would be lost by saying,"There is no public access at the Saunders property...there is an irreversible public access to Rye Harbor." He also read a letter from real estate appraiser Peter Stanhope to rebut the charge that there would be a lowering in values of surrounding properties. As in earlier hearings regarding the earlier proposal for eight houses on the two lots, Loughlin cited several court cases, particularly in regard to the legal concept of hardship. "This property can demonstrate there is financial hardship … an element that can and should be considered."

ERIC WEINRIEP, principal engineer and president of Altus Engineering on behalf of Rye Harbor Realty — "This property is degraded," he stated right off the bat. "The storm water now goes mostly into the tidal marsh. The storm water runoff is high in contaminant." He said the construction of an open culvert system "will be of benefit to the neighbors," and the septic tank, "while improved", would be handling 3600 gallons a day versus 4000 now.

JIM GOVE, Exeter soil and wetland scientist — Gove said the tidal marsh is currently being degraded, and that leads to "stress on fish", but, he said, the proposed development "has very tangible environmental benefits."

JED SHEPARD of NH Soil Consultants — Shepard said the plan has "several real environment pluses … It's state-of-the-art and extremely environmentally friendly."

ATTORNEY R. TIMOTHY PHOENIX, representing the Saunders Trust made up of members of the Zechel family — "This is affecting them greatly … having a very significant impact on the Zechel family. I have yet to hear anything that is problematic about this project. Another restaurant would bring a greater intensity of use to the property. They have a constitutional right to use …their property as they see fit." Phoenix was especially critical of the Save Rye Harbor mass mailing flyer, calling the comparison with the Onassis plan to build a Rye oil refinery "ludicrous". He also took issue with the emphasis on barring public access. "Public access is different than public use."

ATTORNEY SHEILA BURNHAM, representing abutters — Burnham said she would be agreeable to one house on each lot, but "you cannot allow three on one lot … There is a huge public interest here. The public interest is that it has the right to benefit from the zoning ordinances."  She said that what was being sought was a use variance, not an area variance, a distinction that should be made, according to the state Supreme Court as described in Boccia v. the City of Portsmouth in 2004. Turning to Atty. Loughlin, she said: "Maybe you need to read your own book." (This prompted ZBA member Jay Nadeau, clearly opposed to the proposal, to chastise Burnham for her comments and defend Loughlin's professionalism.) Burnham apologized for "droning on" but added,"We have to make these points." She concluded, "None of the variances apply. They are all moot."

(At this point the about 150 remained in the audience.)

HERB DRAKE, longtime resident, speaking on behalf of the Coalition — Drake, who had testified at an earlier ZBA hearing on this matter, spoke at length as to "what Rye Harbor means to Rye," tracing the history of various dredgings since the harbor was first dug out in 1792 when 50 gallons of rum were found. He recalled the Goss family donation of land from Harbor Road to Ragged Neck that enabled Route 1A to circle the harbor, the 1935 dredging and building of two breakwaters when Rye appropriated $10,000 along with state and federal money, the only local government in NH to ever expend funds for harbor improvements, adding another $20,000 in 1962 to develop the wharf. "The only purpose was for commercial fishermen," he emphasized. "Many harbors have been ruined by condo development," he said. "Make sure this doesn't happen to Rye."

AARON BROWN, a broker/developer from Exeter — Brown countered the opinion of Stanhope, saying a development would have "neutral" impact on home values in the area, using as an example the effect of neighboring homes of the recent development of the Pilot House Restaurant property just south of Harbor Road on Route 1A.

ATTORNEY MAE BRADSHAW, leader of the Coalition and a resident of Harbor Road — Bradshaw made an issue of the lack of reference to the fact that one house would be on a corner lot, namely Harbor Road and Mill Lane, and that "You enter and exit under the less traveled road, but the Rye Harbor Realty LLC plan shows the corner-house driveway on the Harbor Road side. Raising another issue, she said "Now you have four-bedroom houses rather than 3 or 2 … and four cars for each house."I don't think they care about those safety issues. I do." She also argued that Rye Harbor failed to apply for all new permits, because this is a new application, not a re-application, and she said abutters were not given proper notice regarding permit applications. She also raised the question of condo regulations. "Do you have the condominium document in front of you?" she asked the board. "Can you (owner of a new house) rent for one month, three months, six months? … "This is not Hampton Beach. This is a different type of quality that we are trying to preserve in this community."

THE PUBLIC HAS SAY

The hearing was then opened to public comment with Mel Low making an impassioned plea to reject the proposal. Citing the Master Plan, he said, "We wanted to preserve the character of Rye. This development goes against this — It's going to change a working harbor to an expensive, million-dollar homes area. These people (fishermen) are going to be pushed out. The majority of people in this town are against this development."

Others speaking in opposition were Peter Collier, Richie Femia, David Doskocil, Ann O'Sullivan, Bill Laverty, Jane Holway, Connie Olson, Alex Herlihy, Phil Winslow, Ian Grant, Tom King, Burt Dibble. Mike Carroll favored the proposal.

Lucy Neiman spoke on behalf of some members of the Rye Energy Committee favoring fewer rather than more houses on Route 1A and for retaining commercial services in Rye in general.

Straight-from-the-shoulder testimony came from Doug Zechel, owner-operator of Saunders Restaurant 37 years. "I am the root of all evil," Zechel said. My feelings were hurt. The signs didn't say 'Save Saunders.'"

Zechel offered some philosophy. "I have a feeling this isn't all about zoning or the Master Plan; It's fear of change.

"People in Rye tend to feel an ownership of the Saunders site as it is, even if they don't frequent the restaurant. They can't picture it not being there."

Zechel said that when he bought the restaurant in 1972 there was another purchase proposal. "They were going to build condos."

"I don't think this is the perfect answer," Zechel said. It's not the perfect ending by any means. But I think this is the best ending at this point in time."

THE DECISION

Except for member Ben King, the board didn't agree. King began the deliberation commentary, adhering to his earlier positions. "It's a benefit to the community," he said, adding, "Opposing arguments don't have any merit … I don't see that the public interest will be diminished. This project will bring the area into greater conformance … than what is now there. The fears of Save Harbor are misplaced."

Member Ray Jarvis had been the swing vote twice before, voting in favor in April but then casting the deciding vote that led to the August 19 rehearing. At that time, on May 13, he said he favored a rehearing to deal with questions of environmental damage. "I didn't hear any conservation testimony," he said.

But on August 19 Jarvis said he was basing his decision on the density issue, specifically the fact that all the six homes were designed for four bedrooms where before there was a mix of two and three bedroom houses (actually the original plan called for 3 and 4 bedroom units.). "The lack of a corner lot and need for revised permits and notice … they do  concern me," Jarvis said, responding to points made by Bradshaw.

Member Jay Nadeau conceded that the new proposal was an environmental upgrade, but said, "I am not satisfied that the applicant has satisfied hardship. Further he said, "What the applicant seeks is non-conforming standards. Basically they have (in their plan) two lots re-zoned. I'm totally against this application at this time."

Member Shawn Crapo, who like Nadeau had consistently opposed the proposals, said the amount of variances "transcends the spirit of the zoning ordinance. We'd be overstepping our authority. It looks more like a small-village concept. It looks nothing like the homes in the area. As a gateway to the Harbor Road community, this is completely different." He added that the proposal violated "the spirit and intent of the zoning." (King interjected that "residential use is permitted in this area.") But Crapo said single-residence is what is allowed. "Multi-residence use is not the same."

Chairman Frank Drake admitted that the new proposal is "slightly less dense." Then he veered off into a general description of the ZBA's role. "There is a heavy, heavy implication that we cannot grant any variances...People could never get a variance if that were the case. That is our role: to grant relief" when deemed appropriate. He also said he didn't believe the project was contrary to the public interest, because "the environmental improvement is very much in its favor. But, he said, "the size of the units (compared with the original plan) and the look of the units are not the same." Drake had voted in favor of the first proposal and against a rehearing, but on this night his vote punctuated the application rejection by a 4-1 vote as clock ticked past 12:30.

Prior to the formal vote on a motion offered by Nadeau the board members agreed to apply two legal precedents, Simplex and Boccia, rather than putting all their eggs in one basket. Meticulously they went through the five tests suggested by the two cases, a total of 10 tests and 50 votes.b It was a formality. It was clear there were four votes against the Rye Harbor Realty development proposal out of five.

The crowd didn't linger. Despite the conditions and despite the impatience the audience had absorbed a tremendous amount of information from both sides when all was said and done. How much? It took more than 60 hours to record the official minutes.





Other relevant court cases referenced during ZBA hearings:

Bacon v. Enfield

Vigeant v. Hudson

Malachy Glen v. Chichester




(PHOTO CREDIT: Attorney Burnham, NH Bar Association)



September, 2009


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