Court Rules Against Monadnock Zone Development

Judge upholds local Wetlands Ordinance; overturns ZBA and Planning Board decisions

June 10, 2008


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Judge upholds local Wetlands Ordinance; overturns ZBA and Planning Board decisions


Ruling in Jaffrey case has potential statewide impact

CONCORD, NH, June 11, 2008— In a decision handed down June 9, Cheshire County Superior Court Presiding Justice John P. Arnold ruled that condominium developments cannot evade laws meant to protect environmentally sensitive areas by saying the development consists of a single communal lot.

The Court’s decision concerned Robert Van Dyke’s proposed 28-dwelling condominium development at the base of Mt. Monadnock in Jaffrey. In his order, Arnold wrote, “Allowing Van Dyke to sidestep the regulations by describing the property as a single lot would undermine the purpose of the [Jaffrey] Wetlands Ordinance and render its language regarding main buildings meaningless.” For a pdf copy of the Court's ruling, click here /sites/default/files/monad-zone-6-9-08-order.pdf

The Court also ruled that the single-lot argument by Jaffrey’s ZBA and Planning Board violates the state law on condominiums. “Even if the Court could find that Section X of the Wetlands Ordinance allows Van Dyke to develop the property in a manner normally impermissible by calling it a condominium, state law prohibiting disparate treatment of condominiums would preempt it,” the decision reads.

Arnold ruled that the Jaffrey ZBA and Planning Board “acted unlawfully by finding that Van Dyke does not need a variance from Section X of the Wetlands Ordinance....The Court vacates the decisions with respect to this issue. Van Dyke will need to obtain a new variance if he intends to proceed with the 28-unit OSDP.”

According to Jim Bassett with the Concord firm Orr & Reno, counsel for the petitioners, “Judge Arnold found that Section X of the Wetland’s Ordinance applies to Van Dyke’s proposed development, and that ‘the Town’s interpretation of Section X contravenes the goals of the Wetlands Ordinance. Given the Court’s opinion, coupled with the requirements under state law for obtaining a variance, we do not believe that Mr. Van Dyke can lawfully obtain a variance for a development that is dramatically inconsistent with the spirit and intent of the ordinance. 

“While there are several communities in New Hampshire that permit more than one principal structure per lot, Jaffrey is not one of them. Lots in Jaffrey’s Rural District are intended for one and only one principal structure per lot, according to the Town’s Zoning Ordinance, Section 5.1 LUP. As noted by Judge Arnold, unless and until the voters of Jaffrey vote to amend the Jaffrey zoning ordinance, the law prohibits 28 structures on one lot.”

Opponents of the development include numerous Jaffrey property owners, led by former State Rep. H. Charles Royce, and the Society for the Protection of New Hampshire Forests.

“We have felt from the beginning that the proposed development is overly intensive for the Mountain Zone, and we’re pleased to see that at a minimum it will need to be revisited,” said Will Abbott, Vice President for Policy at the Forest Society. “It’s satisfying to note that the principles and force of law underlying the Jaffrey Zoning Ordinance are being upheld. Every town that relies on zoning to protect wetlands and traditionally scenic areas should be pleased with the Court’s decision.”

“People who live in the area and can view Mount Monadnock feel strongly that this is a unique place in New Hampshire and the world,” Royce has said. “I’m glad that the Court upheld what citizens in the four-town area said they wanted when they voted to put the Mountain Zone in place.”

The Court also found that the Town’s interpretation of Section X contravenes the goals of the Wetlands Ordinance.

“Under the Town’s interpretation,” Judge Arnold wrote, “the Wetlands Ordinance would no longer control placement of structures or land use because developers could always circumvent the regulations by using communal lot ownership. …Such an interpretation, which renders the ordinance meaningless and prevents it from achieving its stated purposes, cannot be sustained.”

The Court also noted that while Open Space Development Plans (OSDPs) permit flexibility, “it is street frontage, not water frontage, that is flexible for OSDPs.”

While the ruling focuses specifically on the Van Dyke proposal relative to the Jaffrey Zoning Ordinance, elements of the ruling may help clarify interpretations of OSDP-type ordinances and laws regulating condominiums elsewhere in the state.

The Van Dyke development, on Mountain Road a quarter-mile west of Dublin Road, places 28 houses on a 17 acre ridge on a 59-acre parcel. Slightly less than half the parcel is wetlands, including the 900-foot shoreline of Cutter Brook Pond on the west and Stony Brook on the east.                       

 The Society for the Protection of New Hampshire Forests ( is the state’s oldest and largest non-profit land conservation organization. In order to preserve the quality of life New Hampshire residents know today, the goal of the Forest Society, in partnership with other conservation organizations, private landowners, and government, is to conserve an additional one million acres of the state’s most significant natural lands for trails, parks, farms and forests by 2026.