Ed. Note: A crowd of over forty sat in on the Selectmen's meeting last night in Town Hall to hear about Berkshire Development's petition for a rehearing on March's town meeting vote changing the language of the zoning ordinance from "establishment" to "building".  Here is my story that ran this morning in the Eagle Times.  CCB

5-3-07

 
Challenge to Walpole Town Vote Rejected

 _____________________________
Possible Appeal to Superior Court Looms

 
By Chuck Bingaman, Contributing Writer

 
            WALPOLE – Walpole Selectmen Thursday evening unanimously rejected a petition by Berkshire Development LLC to throw out results of a March warrant article vote clarifying town zoning ordinances in commercial and agricultural zones.

 
            Berkshire now has 30 days to file in Superior Court should it wish to appeal the Selectmen’s decision.

 
            The March vote asked whether voters wanted to make it clear that the town’s zoning prohibited new buildings of more than 40,000 square feet rather than, as some argued, that it merely barred “establishments” of over 40,000 square feet in new buildings that could be any size.  Berkshire, which owns parts of North Meadow Plaza and land south of it, and possibly other developers, would like to be able to build one or more buildings larger than 40,000.  Many in the town feel that such “big boxes” are inappropriate to the size of Walpole and contrary to its Master Plan.

 
    The problem with the March vote, as last night’s petitioners argued, was that the warrant article asked whether voters wanted to change the “establishment” term to “building” in different two sections of the zoning ordinance, commercial zones and rural/agricultural zones.  That, according to Keene attorney Thomas Hanna, was “unreasonable, illegal and unfair to voters” because it prevented them from choosing to change the ordinance in one zone and not the other.

 
    In support of his claim Hanna pointed to the very different characters of commercial zones and agricultural zones and their needs for different treatments in zoning codes.  Hanna also argued that New Hampshire case law suggests that lumping of more than one zoning change in one warrant article is only permitted where “the defeat of one would defeat the usefulness of the others”.  And he argued that was not the case here.

 
    Previous to the March vote, owners of commercial property in the town used a statutory provision to require at least a 2/3 vote to change the language to prevent buildings over 40,000 feet.  But, despite that added hurdle, they failed to stop the article which drew more than a two-thirds majority of those voting.  Neither they nor Berkshire Development LLC raised their argument about two changes in one article at that time.

 
    While a hearing on such petitions does not allow public discussion, the selectmen allowed some public discussion during the regular selectmen’s meeting that followed Hanna’s presentation.

 
    Selectman Sheldon Sawyer noted that “no voter complained to me about the language of the warrant article. Berkshire ’s petition was the first that I heard of a problem. The town itself didn’t seem to mean to separate the two provisions.”  Sawyer also added that the selectmen had consulted town counsel on the issue.

 
    Selectman Whitney Aldrich moved that the Select Board “stand with the town vote approving the ordinance language changes” and Mr. Sawyer seconded.  The vote was unanimous in favor of the motion.

 
    One speaker from the audience claimed that he did not understand the warrant article at the time he voted in March. But local attorney Rob Kasper, saying he was speaking for himself only, pointed out that the warrant article was not necessarily unfair as it changed two sections in a single ordinance, and not two totally different, unrelated provisions.

 
    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 Planning 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 Planning 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, setting parameters of development in that district, 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.”

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