Update on Zoning Appeals

The Valley News is out this AM with an article about the appeals on the Church Zoning Case. There was a hearing held earlier this week in the Grafton County Superior Court regarding all of the various zoning appeals pending in this case. To recap: there are 3 separate appeals pending before the Grafton County Superior Court, and the court consolidated all of them into one large case and scheduled a 3 hour hearing to consider all the issues.

The 3 issues are: 1) The Ackers have appealed the granting of the Wetlands Special Exception permit. 2) The Ackers have appealed the granting of the Special Exception allowing the Church use in the single family residential zone. 3) CRC has appealed the conditions that were imposed on the use permit by the Zoning Board.

https://www.vnews.com/Town-church-officials-meet-in-court-36676605

The article focuses almost exclusively on the CRC vs Town aspect of the dispute, and just mentions in passing, almost as an afterthought in the final paragraph, that the Court also considered the Acker’s appeal of the Wetlands permit.

I understand that newspapers have limits and reporters have editors, but this is a pretty big mischaracterization of the actual hearing. The article is generally accurate in describing the events it describes, but the reporter only barely scratches the surface of the entirety of the 3 hour hearing. Not blaming the Valley News, because to tell the whole story would be more like a novella, not an article for a daily paper.

Nate Stearns, attorney for the Ackers, made detailed presentations to the court about both issues on appeal from the neighbor’s point of view. Because this is an appeal, not a trial, there are no witnesses and no new evidence presented. The bulk of the work was actually done in advance by the attorneys – they file various motions and pleadings and briefs that lay out the evidence in the record and the points of law that support the decision they are asking the judge to make. At the actual hearing, the attorneys basically make brief oral arguments where they hit the highlights of the briefs they have already submitted, and answer a few questions from the judge.

We don’t know what to expect in terms of a decision, or when we might receive it. And, of course, any decision can be appealed to higher courts by any party. Bottom line, the story is far from over, and the struggle to preserve the character of our single family neighborhood will probably continue for some time.

So what happened?

Polluted water flowing into Mink Brook from the development at 34 Greensboro Rd, photo taken June 30, 2020.

In a classic case of “hurry up and wait!”, the Zoning Board last night, after duly convening the meeting, going thru all the procedural gobbledygook to make it a legal meeting, decided in very short order to do . . . basically nothing.

Not exactly nothing, but pretty close. What they decided to do was continue the hearing until October 22, so that in the mean time they would have time to consult with the Town’s attorney about the issue of whether or not the board actually has the jurisdiction to hear the case. Wait, what?

You may recall that CRC mouthpiece Michael Tierney delivered a letter to the ZBA at 5:43 PM on the day before the hearing (read it here if you want the full experience: https://drive.google.com/file/d/1zdSXVmkdTWjB5pGFMX9B83bZkMiITDZS/view?usp=sharing ). In that letter, he raised an objection to the entire proceeding, based on the fact that he claims that appeals to the Zoning Board must be made within 15 days, and ours was filed after 21 days. And, in a “technically strict reading of just the Zoning Ordinance” sense, he’s right. But, here’s the twist – in Rob Houseman’s decision that is the subject of our appeal, he specifically told us that we had 30 days to file an appeal:

“Please note that any party aggrieved by this decision may appeal to the Zoning Board of Adjustment under an Appeal of an Administrative Decision within 30 days of becoming informed of the decision.“

That email was delivered to us on August 6, and we filed our appeal on Aug 21.

So, here we are – as my son neatly summed it up: “So, the church is upset that they say you filed your appeal 6 days later than you should have, and that somehow those 6 days harmed them so much that they are going to now wait 30 more days to find out whether those 6 days are enough to make it so you shouldn’t be able to appeal!”

And all the while, the fish, and frogs, and other critters that call Mink Brook home are just crying out, saying, “Hey, can we get a break here? Doesn’t anyone care about us?”

So, again, I’ll ask you – look at the pictures – what kind of people would try to get away with that by relying on some kind of legalese and loopholes? Certainly an interesting way to try to win the hearts and minds of your new neighbors . . .

And the church responds . . .

Silty runoff from 34 Greensboro Rd entering Mink Brook after flowing under the road, across the field, and through the Acker’s back yard.

So, instead of actually trying to fix the problem, the church has, predictably, lawyered up. Attorney Michael Tierney – CRC’s hired gun – delivered a letter to Town offices via email at 5:43 PM today. For those who are following along at home, you might remember Tierney as the fast talking, out of town lawyer with the fancy briefcase who has been the church’s mouthpiece in the past.

Not surprisingly, there’s no mention in Tierney’s letter that the whole fiasco started because CRC lied on their original application. No mention that they might have any responsibility for increasing the runoff through our back yard or polluting Mink Brook. No indication that the church intends to do anything to remedy the situation.

Nope, instead the ZBA should reject our appeal on procedural grounds – we filed it too late, we didn’t use the right fancy lawyer words when we wrote it, stuff like that, and even if it wasn’t too late, and even if we did use the right words in our filing, it still should be thrown out because, because, because . . . well just because we say so, damnit!

The old lawyer’s adage about pound the facts, pound the law, or pound the table rings true. I suspect Mr. Tierney’s poor kitchen table is getting quite the workout tonight!

The entire text of Tierney’s letter is here – feel free to read it for yourself if you’d like:

https://drive.google.com/file/d/1zdSXVmkdTWjB5pGFMX9B83bZkMiITDZS/view?usp=sharing

And, if you make it all the way thru his letter, do me a favor and take another look at the picture up top. Ask yourself what kind of people would want to support that activity, and justify it on “procedural” grounds.

What’s Happening on Greensboro Rd?

Dirty water flowing into Mink Brook on June 30. This has been a regular occurrence after every hard rain since the work began at 34 Greensboro in April.

Careful observers of the Hanover Zoning Board Agenda might have noticed that the Acker’s are back on the agenda with a scheduled Zoom hearing Thursday, Sept 24. Details and Zoom log in info are at the link below if anyone is interested in following along.

https://www.hanovernh.org/zoning-board-adjustment/agenda/092420-zba-agenda

So what’s it all about? Well, here’s the story in a nutshell: Christ Redeemer Church owns the house at 34 Greensboro Rd, and many of you have noticed and commented on the renovation project that they have started. When they dug the hole to pour a foundation for an addition out back of the house, they struck water, and the hole began to fill up as fast as they were digging. No surprise there, the entire North Side of Greensboro Rd in this area sits on an aquifer that is identified in the Hanover Master Plan, among other places. This information was also well developed during the ZBA hearings regarding the larger church proposal. If they were surprised by the underground water, it’s nobody’s fault but their own.

So, when the water started to fill the cellar hole, the site contractor started to pump it out, and this is where the story gets complicated

Water pumping out of cellar hole into front lawn of 34 Greensboro. From here it flows thru a wetland, thru the Acker’s backyard, and into Mink Brook.

The Acker’s brought this to the attention to the Town Staff, and were repeatedly assured through out the summer that the town and CRC’s engineers were working on an engineered solution to handle this water, treat it, and basically do whatever the town wetlands ordinance requires so that the wetlands on both sides of the road and Mink Brook wouldn’t be impacted by this runoff. If you really want the nitty-gritty, you can read the entire email correspondence between Ackers and Houseman here: https://docs.google.com/document/d/1z8dPmtbdi8QtlHk31Ol5jHcOqzDeBWnCFZ9qcqFVwBE/edit?usp=sharing

But, somewhere along the way, something happened, and Houseman decided that, actually, the wetlands on the CRC property actually aren’t wetlands that anyone cares about, and aren’t wetlands that the town needs to regulate, so basically, CRC can do whatever they want with the water. His entire memo can be found in the above email thread, starting at page 19.

So, in response to that finding, the Ackers were left with no choice but to appeal this totally illogical determination to the full Zoning Board, and that is the hearing that will take place on Thursday.

If you want more detail, here is the memo that we submitted to the ZBA that lays out our arguments about why this decision is twisted pretzel logic:

https://docs.google.com/document/d/1EPDgi88pqfkymEPK_Af5Ko488F3Cy2AXQ3_NG1Am-3I/edit?usp=sharing

And here are some more pictures and supporting evidence we’ve submitted:

https://docs.google.com/document/d/1GglpsfwSGX0UNPBNEgtdSDvyjL_Qzad1DIq00Nq_LBM/edit?usp=sharing

More on the rejected settlement

There is a well written article in today’s Valley News about the meeting last week. https://www.vnews.com/Zoning-Board-declined-church-settlement-30443624?utm_source=HeadlineAlerts&utm_medium=DailyNewsletter&utm_campaign=HeadlineAlerts

One slight clarification, in a generally very accurate article on a complicated issue: The reporter says “(Acker) doesn’t want the church built at all”. That’s not correct.

What the neighborhood is opposed to is THIS SPECIFIC development of this size and scale, requiring this size lighted parking lot, causing these potential traffic and safety problems, bringing this many people into a quiet residential neighborhood, creating these types of potential environmental and flooding problems, etc. It just doesn’t fit on this parcel of land in this neighborhood the way the church has laid it out.

We have always said, and I continue to believe, that it is possible to design a church that would be very large, and still be appropriate for this specific piece of land without the negative impacts on the character of the neighborhood.

We went into the mediation with lots of creative ideas that we were expecting to discuss with the church leaders to try to find a compromise solution. The church leadership was unwilling to even engage in a discussion with us – the answer we got was that the church would not even consider our ideas. So, here we are . . .

ZBA says no deal!

In case you missed it, in front of a standing room only crowd of Hanover citizens, the ZBA unanimously rejected the proposed settlement agreement on Thursday night. This means that the appeals by CRC and the neighbor’s continue on a track for a hearing in Grafton County Superior Court some time in the Fall of 2020. After that, win or lose, there will most likely be more appeals, more hearings, and a final resolution realistically might not come until some time in 2023!

Lots of questions went unanswered on Thursday night. Most notably, the members of the audience never did get an explanation as exactly why “The Town” thought this proposed settlement was worth presenting to the ZBA in the first place. ZBA members were very clear that the proposed settlement did not originate with them, but nobody directly answered the question of why we got there in the first place.

We did get some indication of CRC’s tactics. CRC’s attorney Michael Tierney didn’t waste any time in making it clear that CRC is trying to extort approval from the town by whatever method necessary, including threats and intimidation. In response to the first question that Attorney Tierney was asked, he wasted no time in jumping straight to “The Richmond Case”, even though the question he was asked had absolutely nothing to do with that case. He reminded me of a political candidate on a debate stage who ignores the actual question and pivots immediately to a pre-planned and rehearsed answer.

Attorney Tierney was quick to point out that the tiny town of Richmond, NH had to pay a $1.15 million settlement in a religious discrimination land use case. The threat was quite clear – Hanover, you better do what we want, or risk finding yourselves on the hook for a similar a judgement. To hear Tierney talk, one would think the cases were virtually identical, and it’s just a matter of time before Hanover will have to pay up.

So, what exactly is the “Richmond case” and how similar is it to our case? I’m no lawyer, but I know how Google works, so I did a little research. And, guess what, the two cases really aren’t similar at all, and CRC’s extortion appears to be just an empty threat.

First and foremost, the Richmond Planning Board actually did show a bias against this particular religion and religious use.  In their filings, St Benedict’s noted to the court that the planning board chairman, who drafted several of the conditions, e-mailed other town officials about his disgust for the church’s religious teachings, stating that its stance on abortion, homosexual behavior, pornography, and divorce were “abhorrent.”  In the CRC case, our neighborhood objections, and the Zoning Board decisions, have never been about any animus toward a particular religion or religion in general. The objections have always been based only on the impact of this development on this neighborhood, based on the scale and intensity of use.  

Second, it’s important to note that Richmond was not ordered by a court to pay that amount to St Benedict’s.  It was an agreement, negotiated by Dan Mullen, who represented Richmond’s insurance carrier. The following is from a Keene Sentinel article published 7/1/2010 describing the settlement:

“Daniel J. Mullen, Richmond’s attorney, said the decision to settle was made because of the uncertainty of moving forward with a trial.

“We just weighed the costs and benefits of going to trial and possibly appealing it … and decided this was in the best interest of all involved,” he said last Friday afternoon.”

Ironically, Dan Mullen has also been hired by Hanover’s insurance carrier to represent their interests in the current CRC case.

Third, this settlement was negotiated by Mr Mullen, representing the town’s insurance carrier, AFTER the church in this case had already received a summary judgement in their favor. In other words, the trial that Richmond avoided was only to determine the amount of damages to be paid to the church. The question of whether Richmond had indeed discriminated against the church had already been decided by the judge. From the same Keene Sentinel article:

“In October 2009, Superior Court Judge Philip P. Mangones ruled it would be impossible to meet all those conditions, and that meant the center was being denied its constitutional rights under the Religious Land Use and Institutionalized Persons Act.”

Fourth, it appears that the entire settlement was covered by the Richmond’s insurance carrier, and that the insurance carrier forced the town into agreeing to the settlement.  From the Keene Sentinel (6/30/2010):

“But Richmond selectmen — J.C. Boudreau, Sandra Gillis and Wesley Vaughan — say no town officials are guilty of discrimination, and the settlement was just the safest bet, facing the odds against them.

“The town’s liability policy provides that the town must agree to the settlement or assume responsibility for all legal costs and additional damages over and above the settlement offer,” they wrote in a letter to The Sentinel.”

Taking all these facts together leads me to the conclusion that CRC enlisted Hanover’s insurance carrier as a co-conspirator in CRC’s ongoing campaign to bully, threaten, and intimidate the town until they get their way.  The citizens of the Town of Hanover deserve better.

Neighbors weigh in – Thursday’s Valley News

In case you aren’t a regular reader, a couple letters to the editor made it into today’s Valley News. Zoning Board meeting is tonight, 7 PM at Town Hall.

https://www.vnews.com/Forum-Nov-14-30326558

Click the “Donate Now” button in the upper right corner of this page to go to our GoFundMe page if you are willing to donate to the cause

When is a settlement not a settlement?

Two important events to add to your calendar if the ongoing CRC/Greensboro Rd issue interests you:

Tuesday, 11/12, 7:00 PM – a meeting at the Black Center to answer questions about the so-called “settlement”, provide updates on the process, and brainstorm about next steps. If you want to learn more about where things stand the the on-going efforts to stop this development, please plan to attend.

Thursday, 11/14, 7:00 PM at Town Hall – the Zoning Board will meet to consider the proposed “Settlement Agreement” between the town and CRC. We don’t know exactly what format this meeting will take but it is billed as a public hearing, so there will be opportunities for the community to be heard.

So, what exactly is going on here? It’s confusing, to say the least.

As you may recall, there was a mediation session in September. We were led to believe that CRC was willing to consider modifying their plans to mitigate the detrimental neighborhood impacts. In the words of their attorney, “Everything is on the table”. In preparation, we held a couple of meetings, brainstormed, gathered ideas, and were prepared to compromise in an effort to allow CRC to proceed with their development in a way that lessened, but didn’t eliminate, all the negative impacts.

Well, when push came to shove at the mediation, it turned out that actually nothing meaningful was on the table. We presented our ideas to the mediator, and the answer came back from CRC that they were unwilling to consider reducing the size of the building or parking lot, and unwilling to consider putting any limits on the hours and types of operation. In other words, they were unwilling to consider anything.

But, they did cook up a “settlement” with the town that completely ignored the abutters and neighbors. Essentially, the settlement agreement says that the town will remove all but the most toothless conditions that they placed on CRC’s approval. In exchange, CRC will agree not to sue the town for religious discrimination, but if and only if the settlement agreement isn’t appealed by the abutters. So, in other words, the Town gives up everything, and CRC gives up nothing. You can read the whole agreement here: Settlement Agreement

So, what happens next? Apparently many people have been left with the impression that this Settlement Agreement ends the issue, and that the abutters and neighbors are left out in the cold. This is 100% incorrect! Even if this agreement is approved, it has no impact on the ongoing appeals filed by the abutters, challenging both the Zoning decision that allows the use, and decision that allows the wetlands impacts. Both of those legal cases will continue, regardless of what the ZBA decides on Thurs night.

The process going forward is unclear, but what we do know is that the Settlement Agreement has to be approved by the ZBA before it can be submitted to the Grafton County Court for review. That is the topic that the ZBA is going to take up on Thursday night.

This proposed settlement agreement should be offensive to every citizen of the Town of Hanover. Town staff (Rob Houseman and Julia Griffin) , the town’s attorney, and the town’s insurance carrier crafted this so called settlement, without any regard for the overwhelming testimony from neighbors that this mega-development is inappropriate for the proposed site. The town apparently never even tried to wrestle any concessions from the church that might favor the neighbors – we sat thru the entire mediation and were never once presented with any type of even rudimentary proposal to consider.

Please come to the Black Center tonight if you would like to learn more, and most importantly, please come to the ZBA meeting on Thursday to deliver the message that back room deals that benefit insurance companies and developers are not the way we expect business to be conducted in our town.

And some more about the signs . . .

As you may remember, when Lara and I originally appeared before the Selectboard to discuss the sign issue, we asked for permission to keep them up until Sept 30. There was no real significance to this date, but we were told that we needed to have an “end date” to our request. For background info, you can read the original post about the Selectboard meeting here

At the time, Sept 30 seemed like a long,long way away, but, now , all of a sudden, here we are. We’ve decided not to remove our signs, and just sent the below note to the Selectboard:

Dear Selectboard Members – 
After much deliberation, we have decided not to remove the “Protect our Residential Neighborhood” signs from in front of our house.  Recent changes in the circumstances of the underlying Zoning dispute have led us to believe that the public needs to be informed about the developments in the case now more than ever.  Of most particular importance, we believe the Town is considering a settlement that will significantly affect our neighborhood, without any regard for and input from the people who actually live here.  Additionally, we believe that the Town’s proposed action will set a precedent that should be rightly upsetting to citizens from all areas of town, and we intend to use the signs to continue to promote awareness of the situation.


As we have traveled thru town these last several weeks, it has become obvious that the town does not actually enforce any “regulations” regarding signs in the manner that Julia described in her email below.  Signs are up for all sorts of events, much earlier than a week in advance, and rarely taken down the day after any event.  Signs for political and social “causes” (Black Lives Matter, Solarize Hanover, etc) are all over town and appear to draw no scrutiny or enforcement action.  It is obvious that the DPW staff does not make any effort to remove any signs from the town ROW’s in any organized manner, and the Zoning Administrator does not make any effort at enforcement either.


As we said when this topic first came up, we do not believe that we need permission from the town to display our signs, as they are protected free speech.  For your information, I have included below the email that Julia sent to the state DOT after our last meeting.  


We would welcome the opportunity to discuss this issue further if the Board desires and would be more than willing to attend an upcoming meeting if you would like to place this on the agenda.


Very truly yours,
Jeff and Lara Acker

———- Forwarded message ———
From: Julia Griffin <julia.griffin@hanovernh.org>
Date: Thu, Sep 5, 2019 at 3:09 PM
Subject: Private Lawn Signs Within ROW on Greensboro Road, Hanover
To: district2@dot.nh.gov <district2@dot.nh.gov>
Cc: Jeff Acker <jeff.acker@hproofingllc.com>, Robert Houseman <robert.houseman@hanovernh.org>, Peter Kulbacki <peter.kulbacki@hanovernh.org>, Michael Chase <michael.chase@hanovernh.org>, John Sherman <John.Sherman@hanovernh.org>, Asa Metcalf <Asa.Metcalf@hanovernh.org>

Doug:

My apologies if this information is not appropriately forwarded to you.  Given that you head up the District 2 office, I wanted to be sure to advise you of a decision regarding the installation of lawn signs within  the State-owned ROW on Greensboro Road in the event your maintenance staff encounters the signs in their routine maintenance work within the next month.

In Hanover, our Zoning Ordinance forbids the installation of lawn signs on private property.  If we encounter lawn signs within Town-owned ROW, our DPW staff removes them unless the signs have been installed with Town permission to promote an upcoming event of general public interest.  In that case, we only allow the signs to be installed for one week prior to the event and they must be removed the day after the event ends.

Multiple residents on Greensboro Road have installed yard signs within the State-owned ROW communicating their opposition to a proposed church project which has received ZBA approval on a Greensboro Road parcel.  They came before the Town to seek permission to allow the signs in the ROW which we granted through the end of September, but we did alert them that, technically, since this is State-owned ROW, not Town-owned, it would be the State’s call should your staff choose to remove the signs.

I have copied one of the residents representing the group, Jeff Acker, for his information.

Thanks,

Julia N. Griffin

Town Manager

Valley News chimes in on sign questions

In case you missed it, the Valley News had a long article on Sunday about the sign issue, and the CRC proposal in general. I’m not sure how their paywall works, but here’s a link to the article: https://www.vnews.com/Greensboro-Road-Signs-Cause-Stir-27627567.aspx

It pains me to say this, but I think it is clear that some members of the town staff see us as “the enemy” in this situation. This is not at all what we want; we have said time and time again that we don’t want to be in an adversarial position relative to the town. Sadly, I’m not sure that’s the feeling in Town Hall.

Quoting from the Valley News article:

“Meanwhile, town officials contend Acker and his neighbors dragged their feet obtaining permission for the signs. All they had to do was send in a letter and get the OK of Hanover’s five-member Selectboard, Town Manager Julia Griffin said last week.”

If that was “all we had to do”, then I wonder why town officers felt the need to send an email threatening $275 per day fines, telling us our signs were a zoning violation, needed permission from the NH DOT and so on. You can read the whole email exchange between me and town officials here and decide for yourself: Greensboro Road sign emails

I also still have questions about why specifically our signs were targeted for enforcement. If there were really safety issues, it seems like those could have easily been addressed by just moving a few offending signs? Or were the complaints really based on the content of the signs, which raises a whole host of other concerns. There are several other signs in obvious plain view on well traveled main roads in town (both in the town right of way and on private property) that don’t seem to draw any attention from the enforcers.

Thankfully, I think we got a very fair hearing with the Selectboard, (read more about that here). Reasonable people came to a reasonable resolution of the issue, and the signs can stay. So for now, maybe that’s all that really matters?