Winchester zoning change on town meeting ballot is protested

Have to be real proud of a town that is always featured in the news for all the wrong reasons !

WINCHESTER — The owners of a local property are seeking support from voters at town meeting next week with a zoning issue, but opponents of the proposal say it violates their rights and state law.
Gustave “Gus” Ruth, his wife, Irene, and Kenneth Harvey, owners of 50 Rabbit Hollow Road, are backers of a petition warrant article that would allow their rural residential property to be rezoned commercial.

The petition was filed in December, and Ruth spoke in support of it during the town’s deliberative session last month.

The Ruths, Harvey, and his wife, Claudia, purchased the roughly 1-acre parcel, which includes a small building, for $25,000 at auction in April 2012. The couples put the property up for sale in December, with an asking price of $92,000.

The auction was held after the town took the property, which had been owned by Terrance P. Qualters, for unpaid taxes in November 2011. At the time of the sale, Ruth was a selectman. Harvey was, and still is, the town moderator. Both men serve on the planning board.

The petition warrant article says the property has been assessed as commercial for at least eight years, and was advertised as commercial property for the auction.

After the Ruths and Harveys bought the property, they leased it to an auto mechanic in November 2012. The town then issued a cease-and-desist order for the operation. The couples have been fighting for the commercial designation ever since.

Gus Ruth and Kenneth Harvey tried to appeal the cease-and-desist order, but the zoning board unanimously voted down their request in June. The board then voted 3-2 in July to deny a variance for the property, which would have allowed the commercial operation.

Soon after the petition warrant article was presented at the deliberative session in February, neighbors of 50 Rabbit Hollow Road filed a petition protesting the warrant article.

Christine B. Hadley, who was one of the residents to sign the protest petition, said the warrant article is an attempt to get a commercial property zoned in an area where it doesn’t belong.

“This isn’t a commercial property. It was used by someone who had a business to store equipment,” she said, referring to the previous owner.

Without the protest petition, the warrant article could pass with a simple majority. However, with such a petition in place, it needs a two-thirds majority vote, according to state law.

However, there is a chance the protest petition might not even be necessary.

According to N.H. case law, so-called “spot zoning” isn’t allowed in situations where changing the zoning of a property would go against not only the rest of the zoning district, but also a community’s master plan and the spirit of the ordinance governing the zoning district. A property would need to receive a variance to host a function different than the properties around it. And Winchester’s zoning board denied such a variance for 50 Rabbit Hollow Road last year.

Winchester resident Susan Newell wrote a letter to The Sentinel protesting the proposed zoning change.

If it passes, she wrote, “Winchester taxpayers will face hefty legal bills. If the select board fails to implement illegal zoning that has been approved by the voters, Ruth and crew will likely bring a frivolous lawsuit against the town to force the change, and selectmen will have to defend against them. If selectmen implement the zoning change, despite its illegality, they will be sued by abutters, who will win. The only losers will be Ruth, et al., and the taxpayers.”

Hadley said she knows the protest petition might be overkill, but she and other neighbors, are determined not to see the Rabbit Hollow Road property zoned as commercial.

“It just doesn’t fit the neighborhood,” she said. “The closest businesses are 1.5 to 2 miles away.”

Neither Ruth nor Harvey could be reached for comment.

Meghan Foley can be reached at 352-1234, extension 1436, or mfoley@keenesentinel.com. Follow her on Twitter @MFoleyKS.