Ed. Note: Undeterred by last month's greater than 2/3 vote clarifying that Walpole's zoning ordinance means no new commercial building larger than 40,000 square feet, Berkshire Development is seeking to get around it with a petition to throw out the vote.  See story below.  CCB

4-24-07

 Developers Challenge Walpole Voters’ Zoning Changes

 By Chuck Bingaman, Contributing Writer

             Berkshire-Walpole LLC and Walpole Properties LLC have filed a petition for rehearing with the Walpole Select Board that argues that the town meeting warrant article,  replacing “establishment” with “building” in two zoning ordinance sections, was “illegal and unreasonable.”

             The development companies, represented by Thomas R. Hanna of Keene, are arguing that Article 3, which passed by more than a two-thirds vote, was defective because it lumped two zoning changes into one article, thereby preventing voters from voting for one and not the other.

             As required by New Hampshire law, Walpole selectmen have set a rehearing for 7:00 p.m., Thursday, May 3 and must decide, after hearing arguments by the petitioners and comments by town citizens, whether to take any action. 

             Should the selectmen choose to take no action, the subject will be closed unless the petitioners choose to take the matter up to court to try and force the town to act.

             This is the latest skirmish in a multi-year struggle pitting some developers and their supporters—both in and out of the town—who wish to build large commercial buildings against town voters that wish to limit the possible size of new commercial buildings in Walpole.  In 2006 Berkshire-Walpole LLC proposed erecting a 70,000 square foot structure near North Meadow Plaza that would have housed 3-5 businesses—or, as they called them, “establishments”--none of which by themselves required more than 40,000 square feet.  Last June, Berkshire withdrew its proposal, the Zoning Board stated that it was interpreting the statutory language to mean the limit was on the size of future buildings, not businesses within them, and later the Board put the matter on the 2007 town warrant.

             Until the March 13 town meeting, Article VI Commercial District, Sec. B. Uses Permitted said “A building may be erected, altered or used and a lot may be used or occupied only for the following purposes and in accordance with the following provisions:… 3. Shops, restaurants, and other retails establishments not exceeding 40,000 square feet in gross floor area.”  Also, until the March 13 town meeting, Article VII Rural/Agricultural District, set parameters of development in that district but permitted special exceptions in Sec. C. including “1) Industrial, manufacturing, and commercial operations by Special Exception from the Board of Adjustment when fulfilling the following requirements:…g) No retail commercial establishment shall be permitted which exceeds 40,000 square feet in gross floor area.”

             Article 3 on the town warrant asked Walpole voters whether they wanted to amend the above two ordinance sections “by replacing the word ‘establishments’ with ‘buildings’”.  The point of the proposed amendment was to remove any uncertainty about whether builders might be permitted to build new commercial buildings whose square footage exceeded 40,000 square feet provided that separate businesses or “establishments” within them did not exceed that limit. 

             Before the town meeting, using a statutory provision allowing it, commercial property owners in Walpole collected enough signatures representing commercial landowners to require at least a two-thirds vote to pass the article containing the zoning changes. 

             The proposed Art. 3, changing “establishments” to “buildings”, as recommended by the Zoning Board, passed with more than a two-thirds vote, 764 to 337.

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