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State Court: Enfield Was In the Right

Judges Rules Variance Denial For House Was Justified



Valley News Staff Writer
Wednesday, February 07, 2018

Concord — The state Supreme Court has ruled that Enfield officials were justified when they denied a local man permission to build a new, larger home off of Crystal Lake.

A three-judge panel from the court found that the town’s Zoning Board acted accordingly in 2016 when it denied Enfield resident Robert Foley a variance needed to convert his cottage on Rollins Point Road into a permanent residence.

The board worried the new construction could encourage other homeowners to expand their footprints on the private road, resulting in “overcrowding” near the lake.

“We’re happy with the outcome,” said Town Manager Ryan Aylesworth on Wednesday. “Certainly, we felt from the beginning that our ZBA had done it right, and we’re comfortable with the actions they had taken.”

Phone numbers listed for Foley were not connected on Wednesday. His attorney, Lebanon-based Barry Schuster, did not return a message seeking comment.

Foley initially proposed replacing his cottage, which was built in the 1950s, with a new home where he could live with his daughter, who would act as a caregiver.

The structure on Foley’s 0.37-acre parcel is run down and an eyesore in the neighborhood, Schuster argued before the Zoning Board in 2016, according to meeting minutes.

Foley planned to demolish the roughly 900-square-foot cottage and replace it with a 1,700-square-foot home with an attached 900-square-foot garage.

Foley was required to obtain a zoning variance to build within a designated 30-foot setback from the road. Schuster argued that there are several existing homes built within 30 feet of the road, so Foley’s proposed home wouldn’t alter the character of the community, according to meeting minutes.

Initially, the Zoning Board agreed, and granted the variance. However, they reversed the decision later that summer after neighbors requested a rehearing.

Board members said the construction would violate the spirit of the town’s zoning ordinance by promoting overcrowding.

“The Zoning Board agonized over this case,” said Town Planner Scott Osgood on Wednesday. “It generated quite a bit of controversy, but I think that was just the Zoning Board struggling to do its job.”

Osgood said the board didn’t believe Foley’s project by itself would negatively impact the lake and surrounding neighbors. However, he said, they were concerned about the precedent that could be set by allowing the construction to go ahead.

Foley sued in Grafton County Superior Court arguing the board’s reversal was flawed in two significant ways: The new home wouldn’t violate the spirit of Enfield’s zoning ordinance as the board asserted, and the board chairman erred by soliciting opinions from municipal and zoning officials online ahead of the decision.

The Superior Court judge rejected Foley’s claim, and the Supreme Court concurred.

Enfield’s zoning ordinance exists to prevent the “overcrowding of land,” the Supreme Court justices wrote in their decision, which requires officials to consider whether projects could result in long-term overcrowding of neighborhoods.

The court also threw out Foley’s argument that the Zoning Board’s chairman acted inappropriately, stating the information wasn’t brought to the court’s attention early enough into the lawsuit.

Even the information was available earlier, the justices said, there is no evidence the communication prejudiced officials against the project.

Tim Camerato can be reached at tcamerato@vnews.com or 603-727-3223.