Stratham Select Board sues town Zoning Board over 59-unit condo approval: Here's why

STRATHAM — The town Select Board is taking the Zoning Board of Adjustment to superior court over its approval of a proposed project to construct 59 condos on the Stratham-Exeter town line.

The board voted 2-1 Monday to file an appeal in Rockingham Superior Court over the ZBA's decision to grant Green & Company a variance for the project at 13-15 Stoney Brook Lane.

The Select Board has taken issue with the ZBA for approving single-family housing on the commercial-zoned 77-acre property. The Select Board has argued the special commercial zoning district approved by voters 15 years ago "was envisioned for hotels, conference centers, commercial and professional uses, restaurants, entertainment complexes, and larger scale mixed-use development."

“We believe that decisions made by the voters of Stratham are worth fighting for,” said Select Board Chair Michael Houghton. “The voters of this community clearly understood the ramifications of rezoning this land as a ‘Special Commercial’ zone, and it is disheartening that the will of voters was erased with a single variance decision.”

In a statement to the media, the Select Board stated the proposed project by Green & Company "is wholly inconsistent with Stratham's zoning requirements."

The sole member who opposed filing the court appeal was Selectman Joe Anderson, who would not comment on his vote.

"In terms of my no vote, I'm not going to comment on aspects of potential pending litigation," said Anderson.

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Why Stratham Select Board is taking the matter to superior court

The Zoning Board unanimously granted the variance for the project, located off Route 108 past the Route 101 interchange going towards Exeter, Jan. 9. The decision was made following feedback from the developer that commercial use wasn't viable and the Rockingham Planning Commission, which stated that “the overall addition of housing is generally considered a positive regional impact.”

The Select Board requested the Zoning Board conduct a rehearing on the project in March citing Green & Company failed to meet “several” of the criteria needed for a variance to be granted. The Zoning Board, however, denied the request April 2 by a 3-2 vote, stating the Select Board did not provide "new" evidence to warrant a rehearing.

"The Select Board recognizes that there is a significant need for housing in our region and does not oppose new housing, either on this property or in the community as a whole," the Select Board stated in a press release. "In fact, the Special Commercial zone anticipated and encouraged 'upper story residential uses' as accessory uses. However, no mixed-use development is proposed in the current proposal, only single-family housing."

The board noted only a small percentage of Stratham's land area is zoned to allow for commercial uses.

"The Select Board recognizes the value of commercial and industrial uses to help balance the town's tax base," the board stated.

The Select Board said this week that if Green & Company wanted to proceed with the project, they should have engaged in talks with the Planning Board and the broader community.

"If a strong case can be made for changes to the zoning ordinance - changes that would benefit the community and not just the developer - the Planning Board will sponsor a zoning amendment for consideration by the town's voters," stated the Select Board. "Even if the developer and Planning Board do not ultimately agree on a proposed zoning measure, the developer has the option to place a zoning amendment on the town ballot simply by gathering the signatures of 25 Stratham residents in support of a measure."

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Zoning Board, developer reacts to Select Board appeal

ZBA Chair Drew Pierce and ZBA member Bruno Federico said Tuesday they have yet to see the appeal and at this time had no comment.

"It's out of our hands until the court reviews the case," said Federico.

Federico had argued at the April 2 meeting that prior town votes had shown not everyone in town was on board with the special commercial zone.

He noted that Stratham residents rejected in 2018 bringing water and sewer from Exeter to help spur commercial development in that area. They also rejected, he said, creating a TIF (tax increment financing) district in 2020, which would have helped bring businesses to the town.

“I’m kind of perplexed as to comments saying that we’re changing the zoning when we’re granting relief to an applicant,” he said at the April 2 meeting. “We’re granting relief to an applicant… I don’t see how commercial is going to be developed in that area with all that wetland.”

Michael Green, of Green & Company, said the Zoning Board carefully reviewed in detail the criteria necessary to grant the variance requested.

"The Select Board has chosen to overlook the efforts of the ZBA, a board appointed by the Select Board for their abilities to do this work and have chosen to appeal their decision without fully considering the actual issues that make special commercial an unsuitable use for this site," said Green. "And with no changes to public utilities such as water and sewer proposed in the immediate future, this property will remain undevelopable without reasonable zoning relief."

This was the third iteration of residential development at the location. The first two proposals didn’t go anywhere due to the need for water and sewer from the town of Exeter. One was for 400-plus housing units and another for 128 townhouses.

"This is a very difficult piece of land with varying topography and a hidden away location with difficult and expensive access required to get to the site," Green said. "It has sat for many years and has not been able to be developed for the use it is primarily zoned for because of the site access, location, topography and lack of public utilities such as water and sewer.

"...This variance was granted because it is the right use at the right time. Otherwise, this land will continue to remain undevelopable for several more decades."

The latest project calls for 59 standalone, three-bedroom condos with a deck attached to each unit.

The condos will look similar to a single-family house but have all the perks of condominium ownership, such as private roads and full maintenance service.

The proposed development would rely on private water wells and septic tanks.

This article originally appeared on Portsmouth Herald: Stratham Select Board sues town Zoning Board over 59-condo project