Big Brother Meets Grandfathered

It looks like we have a small victory for property rights in Weare, NH.

July 3, I represented a homeowner in front of the Weare ZBA. He had a Cease and Desist Order placed on his property because the Code Enforcement Officer, Chip Meany (not kidding) claimed the property was “abandoned” during the time it was purchased and being remodeled. The owner has been sick to his stomach about this since 2004 when Mr. Meany did it the first time and then backed down before we had to appeal to the ZBA.

In Weare, the zoning ordinance exempts all USES existing on the date of adoption. We call this “grandfathering” for short. The property in question is on a small lot and is a residence—in a residential district. Mr. Meany claimed then in 2004 and again in 2007 that the residence was a pre-existing NONCONFORMING use that had been ABANDONED. This is not true and the Cease and Desist orders were clearly, clearly, wrong. But since the neighbor is a town employee it looks like the case got special treatment.

I printed out for each Weare ZBA member the NH Practice and Procedure description of ABANDONMENT.

I made a little book for each one and even highlighted the relevant portions such as: In NH there is a two part test for abandonment, one being was the abandonment physical, such as, are the taxes paid, lawn mowed place boarded up, etc. The second test is; was the abandonment intentional or willful? For example, was no one using the property because of illness, was it on the market, or was there a probate issue. Remember, Mr. Meany shut down the homeowner from fixing the property back in 2004, just after he bought it, then reversed himself days later (after I visited him) and said go ahead without us going to the ZBA for a variance to work on this residence in a residential district.

Now in the spring of 2007 we get a Cease and Desist sending us to the ZBA for a variance or special exception A DAY AFTER HE ISSUED THE OWNER A SEPTIC APPROVAL FOR THE SAME PROPERTY. The owner is a state certified septic designer.

Back in May we went to the ZBA thinking this would be cleared up. Meany did not attend. There were only four ZBA members on the panel.

We lost in a tie vote and appealed. This set up last week’s June 3 hearing. Meany was again a no show. The neighbor again had an attorney.

The hearing was on live cable access and we had a full ZBA Board as well as an alternate. I told them I would read aloud, and very slowly, from NH Practice, the way NH courts look at abandonment. Then I would read back to them the relevant part of the Weare Ordinance so we could all follow along and not drift into other issues. After I did this the lawyer for the town employee/abutter made some arguments I still do not fathom other than it may have made his client feel better. We then had a vote from the Board. One member mad sure everyone knew what a yes or no vote meant.

We got a unanimous vote to overrule the Cease and Desist from the five voting members, two of whom voted against us last time. Even the alternate who recused himself said he would have voted with us as well. Mr. Meany, after two hearings, never sent a letter or showed up to defend his Cease and Desist.

And I never even had to use my “ace in the hole” argument. During this debacle I went to Cilley Hill Road in Weare and measured the distance from the road to the front porch of the former home of US Supreme Court Justice David Souter, which for all intents and purposes is about as abandoned as you can get. His place is about ten feet from the right of way putting him in the same position as the homeowner we were helping.

Had the Weare ZBA not caved in to reality it would have made a nice Superior Court argument.