Temple ZBA to revisit decision on new application for Marsh property

Temple Zoning Board Chair Deborah Harling, member Allan Pickering and alternate Jim Medeiros review a request for a rehearing submitted by Alan Marsh and John Jackson-Marsh for a special exception to allow a collection of antique construction equipment on their West Road property.

Temple Zoning Board Chair Deborah Harling, member Allan Pickering and alternate Jim Medeiros review a request for a rehearing submitted by Alan Marsh and John Jackson-Marsh for a special exception to allow a collection of antique construction equipment on their West Road property. STAFF PHOTO BY ASHLEY SAARI—

By ASHLEY SAARI

Monadnock Ledger-Transcript

Published: 09-15-2023 11:05 AM

The Temple Zoning Board of Adjustment will be revisiting a previous decision not to hear a special exception application to allow storage of antique construction equipment on West Road.

The application was filed by Alan Marsh and John Jackson-Marsh, who are seeking permission for their collection to occupy up to four acres of their 39-acre property as a non-commercial enterprise. The ZBA reviewed the application during its meeting on Aug. 3, but did not accept it to begin the hearing process.

The property has been a point of contention, with the Town of Temple issuing violation notices regarding the construction equipment in 2017, arguing that the collection fit the definition of a junkyard because of the number of vehicles, whether or not it was being operated as a commercial business.

Marsh and Jackson-Marsh filed an application requesting a special exception to have a junkyard on the property in the spring of 2018, although they continued to maintain it did not fit the definition. The Zoning Board ultimately denied the application, on grounds that Marsh and Jackson-Marsh didn’t prove the use wouldn’t impact surrounding property values.

Following the decision, and a rejected appeal for reconsideration, the town continued to issue notices for land-use violations related to the collection, and the case was eventually brought to Superior Court. Judge Charles Temple agreed with the assessment of the collection meeting the legal definition for a junkyard, which isn’t allowed under Temple zoning without an approval process. Marsh and Jackson-Marsh are seeking an appeal of that decision to the state Supreme Court.

Marsh and Jackson-Marsh also filed a new application for a special exception with the Zoning Board at the end of June, to allow their collection to remain.

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During the Aug. 3 hearing, the ZBA voted 4-1 that it did not have jurisdiction to review the application for the special exception, based on the fact that it was “not significantly different” than the previous application by Marsh and Jackson-Marsh in 2018, which the board had already denied. New Hampshire case law, specifically the case of Clara Fisher v. the City of Dover, prohibits the board from ruling on cases that have already been decided.

“When a material change of circumstances affecting the merits of the application has not occurred or the application is not for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition,” the decision in Fisher v. Dover reads.

According to Zoning Board minutes, attorney Tom Hanna, representing Marsh and Jackson-Marsh, argued that in the same order where Temple ruled on whether the collection qualified as a junkyard, the court had issued an order that Marsh and Jackson-Marsh either bring the property into compliance by removing all materials which constitute a junkyard, or apply for the necessary land use approvals, including a special exception.

According to the minutes of the Aug. 3 meeting, Hanna stated “the town invited the applicant in the proposed order to reapply as a means of compliance.”

The board appeared to be split during discussion of the issue Thursday. Member Allan Pickman was the dissenting vote during the Aug. 3 hearing, and said he maintained the view that the board should hear the case.

“I think the application is slightly different,” Pickman said. “My feeling is that we should accept this rehearing.”

Member Lucas Talbot, who originally agreed with the majority vote that the ZBA did not have jurisdiction, said he did not object to re-examination of the board’s previous ruling. Members James Stein and Richard Redding said they felt the matter had already been resolved with their previous ruling, and were not convinced it needed to be revisited.

“It is my opinion, this matter has been settled and there is not further action needed,” Redding said.

“I agree with Richard [Redding],” Talbot said. “I don’t believe the two applications are materially different.”

After discussion, the board voted 4-1 to approve the application for rehearing, with Stein voting against and Emily Sliviak abstaining. Redding, despite reiterating that he felt the applications weren’t materially different, agreed to reopen the discussion on the matter of the jurisdiction.

The board scheduled the rehearing for Oct. 19 at 6 p.m. at Town Hall.

Chair Deborah Harling said the Oct. 19 hearing would be to review arguments on whether the application was materially different enough from the previous submission to allow the ZBA to have jurisdiction over the new application. She said if the board did find that it had jurisdiction, it would also review whether the application had a regional impact. State law requires zoning issued with regional impact to notify neighboring communities of the case.

Harling said that if the case reached that point, whether or not the board found regional impact, the board would not hear any merits of the case during the Oct. 19 case, but would continue it to allow for notification of abutters, and if necessary, neighboring towns. The board did not take an official vote to agree to that course of action but agreed by consensus to not hear any merit-based arguments of the case on the Oct. 19 hearing.

Ashley Saari can be reached at 603-942-7172, Ext. 244, or asaari@ledgertranscript.com. She’s on X @AshleySaariMLT.