421 South Rd. Developer Suing the town

S ettlement Document:  South Rd. Law Suit Settlement December 2017

BOS  Post Settlement Public Statement:  Click Here

October 12th Scheduling Conference:

The following is the summary of the October 12, 2017 scheduling conference for the three consolidated cases involving the Harbor Street Limited Partnership and the South Rd. development plan that was denied earlier this year by the Rye Planning Board and the Rye Zoning Board of Adjustment.  The cases are pending before the Rockingham County Superior Court in Brentwood, NH, before Judge Wageling (the same judge who issued the decision in the Sanders Point case).

The attorney for the developer, Joe Falzone, pushed for a hearing in January 2018, so that, if he succeeds in having the decisions of the Rye land use boards overturned, construction could start in February.

It appeared that the Nature Conservancy, which owns an abutting parcel, has intervened in the case, as their attorney was also present.

The judge noted that, while Harbor Street has sought damages, if she denies the appeal of the decisions of the land use boards, there would not be any damages.  That issue will be put on the back burner for now.

The judge stated that the site walk (termed a “view”) will be open to the public, but no testimony will be taken.  Only comments through the attorneys would be permitted.  The view was scheduled for December 1, 2017 at 9:30 a.m. at 456 South Rd.

The hearing on whether to overturn the decisions of the Rye land use boards was scheduled for January 3, 2018.  The entire day was allocated, but may not be used.

The “records” (documents filed in the Planning Board and ZBA cases) will be due November 17, 2017.  The briefs will be due after that.

Court Documents:

Main Case Documents:  SouthRoadCase872

PB Amended Complaint    ZBA Appeal

Additional documents in the file: List of Addresses for parties

Harbor Street LLC, the developer whose 17 lot subdivision was rejected in its entirety by the Planning Board in August, has filed three separate suits against the Rye Planning Board and the Rye Zoning Board of Adjustment (“ZBA”) .  The facts and arguments presented are repetitive and complex.  The Planning Board and the ZBA have not yet responded to the suits.  The first hearing, a Structuring Conference, is scheduled for October 12, 2017 at 9:00 a.m. at the Rockingham Superior Court in Brentwood.  The alleged facts and arguments presented by Harbor Street may be summarized as follows:
1.  Four lots off of South Rd. in Rye, each owned separately, were to be combined and then subdivided into a 98 acre subdivision, of which 40-50 acres is wetland which was to be donated to the town as conservation land.
2.  The four lot owners, one of which is a trust benefitting Selectman Priscilla Jenness, had each entered into a Purchase and Sale agreement with Harbor Street, contingent upon subdivision approval.  After closing, Harbor Street would have owned the combined parcel and would commence construction.
3.  The lot owners have worked together and have authorized Harbor Street to act on their behalf.
4.  The Planning Board made a mockery of the land development process and ignored unrefuted scientific evidence that its own consultants agreed with.
5.  The Planning Board may have been spurred on by citizen outrage over the risk to water quality by an unrelated landfill in another town (apparently referring to the Coakley Landfill in Greenland and North Hampton).
6.  The Chairman of the Planning Board acted improperly by reading a “written harangue” after the Board had voted to deny the application, indicating that he had prejudged the matter.
7.  The number of lots proposed was initially 22, however this was reduced to 17 during the process, which lasted from submission of the application on September 16, 2016 to final denial on August 8, 2017.  The denial of a conditional use permit by the Planning Board for a Designated Leach Area (“DLA”) on one lot (smaller than required, or extending into a buffer) and the denial of a special exception or variance by the ZBA for a driveway in the wetlands and vernal pool buffers combined to reduce the number of lots to 15.  The four lots to be combined are already separately buildable, thus the 17 proposed lots are only an increase in 13 from those presently existing.
8.   Harbor Street was required to pay approximately $80,000 for peer review by consultants retained by the Planning Board.  Study after study was done.  These peer reviews determined that the proposed subdivision complied with Rye’s Land Development Regulations.  The excessive review constituted attempts to reduce the number of lots so as to render the project uneconomical and force the developer to abandon it.  The Planning Board had also requested additional hydrogeological studies that would have allegedly cost hundreds of thousands of dollars.
9.  The Planning Board did not disclose that a majority of its members are close neighbors of the property in question.  Two live within 800 feet.
10.  There was overwhelming evidence that the ground water flows away from town wells, which are 2500 feet away, and there is no factual basis for concluding that they would be impacted.
11.  The Planning Board engaged in speculation by concluding that the proposed 700 foot buffer to the Atlantic White Cedar forest was insufficient.
12.  The Planning Board required advanced septic systems, only to later conclude that these do not always work.

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