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Developer, City Still At Odds

Troy Lowery of Dartmouth Lawncare trims around a shrub while cutting the lawn Thursday, Aug. 8, 2013, at the old library building in West Lebanon, N.H. The building's owner, David Clem, had let the grass grow to about three feet high this summer as a protest against the city in a permitting dispute.
Valley News - James M. Patterson
jpatterson@vnews.com
photo@vnews.com

Troy Lowery of Dartmouth Lawncare trims around a shrub while cutting the lawn Thursday, Aug. 8, 2013, at the old library building in West Lebanon, N.H. The building's owner, David Clem, had let the grass grow to about three feet high this summer as a protest against the city in a permitting dispute. Valley News - James M. Patterson jpatterson@vnews.com photo@vnews.com Purchase photo reprints »

West Lebanon — Earlier this summer, developer David Clem let the weeds grow in front of the old West Lebanon library in protest against the city’s permitting process.

Now, after the city’s planning department this week denied a permit for Clem’s proposed renovation project, he’s considering his options, including boarding up the windows and biding his time.

Clem and the city have locked horns over how building codes should be applied in the library’s renovation. For more than a year, Clem has been planning to convert the building into headquarters for his company, Lyme Properties, along with his own personal residence on the upper level.

Planning and Zoning Director Andrew Gast-Bray has maintained that although his department wants to see the project up and running, the city is merely enforcing the state building code requirements.

Clem contends the city is being inflexible.

“Everyone knows that building codes are not precise, there is room for interpretation,” Clem said Friday. “There is wiggle room in terms of how the chief building inspector reviews items — it’s a give and take.”

The building code dispute centers on two relatively minor technicalities — the installation of fire protection equipment and an elevator recall system. Clem has said he in unwilling to take on the added expense those upgrades would entail.

Clem said that he is left with four options:

∎ Appeal the planning department’s most recent building permit denial to the Zoning Board of Adjustment, a process that could make its way to court.

∎ Abandon the plans for a residential component of the project and resubmit the proposal.

∎ Sell the building.

∎ Do nothing.

“I can board it up, protect it, pay my taxes — which I’ve already done — and wait until things change in Lebanon,” Clem said. “ ... All of (those options) are still on the table.”

Interpreting Code

The dispute has been snowballing since last year. In November, Clem wrote City Manager Greg Lewis, expressing his frustration with Calvin Hunnewell, the city’s building inspector, and informing Lewis that he had hired a professional code consultant to resolve the impasse. Clem and the consultant point to a section of international building code that exempts historic buildings, insisting the inspector has discretion on how to apply the code in the case of the former library.

Furthermore, Clem argues that the building would have passed inspection if given a “neutral” score for the lack of an “elevator recall system” — which automatically sends an elevator car to a designated floor when triggered by the fire detection system. He added that he’s being penalized even though an elevator is not required by building code.

“This is the kind of catch-22 B.S. of going through the regulatory process,” Clem said. “In my opinion ... you step back and start saying, ‘What is it we are trying to accomplish here and how do we get it done?’ That doesn’t seem to happen in Lebanon.”

After a pause, Clem, who is also the developer behind the soon-to-be-nearby River Park mixed-use development, cracked, “I don’t think they can see the forest for the grass.”

Planning Department officials said Hunnewell is on vacation this week and could not be reached for comment.

Gast-Bray, however, said that Clem was being “very generous in his interpretation” regarding how much city officials can modify the application of building codes, and argued that such modifications are only for “teeny stuff” such as tweaking the dimensions of a wheelchair ramp if there isn’t enough room to install the recommended size.

As for being penalized over the lack of an elevator recall system, Gast-Bray responded, “That’s not ours; that’s in the code book.

“He’s not getting exceptionally punished for it, it’s just the way they do that calculation,” Gast-Bray said. “ ... We can’t just throw the calculation out, we’re not authorized to do that.”

Defining Project Phases

Another rub comes down to project phasing.

Clem maintains he intends to install a sprinkler system, but he is waiting until he is ready to construct an addition to the building.

The addition, however, is being held back until the city acquires ownership of Railroad Avenue, which wraps around the former library and is currently under state control.

In that vein, Clem has referred to the addition as the “second phase” of the project.

But Gast-Bray said that the renovation was never officially submitted as a two-phase project and is not formally recognized as such, though he did colloquially refer to the plans as having a first and second phase.

Gast-Bray said that lack of formal phasing in the project has made abiding by the time lines as proposed by Clem impractical when it comes to code enforcement, as the city has no way of making sure Clem will eventually install the sprinklers.

“If we give him the building permit to go through phase one, and then he never finishes phase two, we’ve basically ... just created something that is noncompliant with the law, and we can’t do that,” Gast-Bray said. “That’s been our biggest challenge.”

Increasingly, however, the relationship between the developer and city officials appears to have turned personal.

Gast-Bray, for example, took umbrage with what he described as an unwillingness on Clem’s part to work with city officials.

“I don’t understand, and I think that he is just being mean right now, honestly,” Gast-Bray said. “I don’t want to get into a big fight in the press because we want him to succeed. We are doing the best job that we can of understanding what the code allows us to do, because if we just throw the code out, we’re liable.”

When asked to characterize his relationship with the city, Clem responded, “I don’t have a relationship with the city at this point.” He added that he regularly receives phone calls from other municipalities in the Upper Valley asking if he would renovate a historic building or do a project there.

“I have yet to get a single phone call from Lebanon encouraging me to do anything,” Clem said. “That’s OK, I’ve got plenty of choices in terms of where I invest my time and effort.”

Another Project Mired

The former West Lebanon library isn’t the only historic building renovation project that has stalled in City Hall this month.

A proposal by White River Junction developer Mike Davidson hit a snag at a Zoning Board of Adjustment hearing on Monday, when Davidson was denied a variance that would have allowed him to build a 30-seat restaurant on the lower level of the former junior high school on Bank Street.

Paul Boucher, president of the Lebanon Area Chamber of Commerce, said that the city is inviting economic growth in that part of West Lebanon on one hand, while simultaneously discouraging it with an overly burdensome review process. Boucher said that such treatment will make developers think twice before investing in projects within the city, and he likens the situation to the difficulties Davidson has faced over his Bank Street project — with one key difference.

“Davidson did it smart, he did not buy the building yet,” Boucher said. “If he doesn’t get what he wants ... he’s going to back out of the deal. Whereas Clem, they let him go ahead and buy the building first.”

City Councilor Karen Liot Hill said she has received mixed feedback from residents about the former West Lebanon library project, and feels there is frustration with both Clem’s chosen method of protest as well as the development review process.

“Ranging from large developers to residents trying to subdivide, or small projects, there’s just a sense that things take too long and that the process is just too frustrating,” Liot Hill said.

But Liot Hill added that, “even if there is merit to Mr. Clem’s frustration with the city, letting the grass grow and boarding up the windows and creating an eyesore in one of our downtown villages is really not an appropriate way to register that protest.”

Like Boucher, Liot Hill distinquished a crucial difference between Clem’s project in West Lebanon and Davidson’s project downtown.

“It is notable that the Bank Street junior high project ... that the sale of the property was contingent on the zoning approval that would be necessary to do what Mr. Davidson has in mind for that project,” Liot Hill said. “It seems that Mr. Clem did not build those kinds of contingencies into his purchase of the library. It does seem surprising for a developer to be this far along in a project and have those questions unanswered.”

Ben Conarck can be reached at bconarck@vnews.com or 603-727-3213