Silver Scone neighbors file additional case with Housing Appeals Board

Nancy Clark, who has been representing a group of neighbors appealing decisions that would allow the operation of Silver Scone Teas.

Nancy Clark, who has been representing a group of neighbors appealing decisions that would allow the operation of Silver Scone Teas. STAFF FILE PHOTO BY ASHLEY SAARI

By ASHLEY SAARI

Monadnock Ledger-Transcript

Published: 04-01-2024 8:34 AM

Neighbors of the Silver Scone Teas tea party events business in New Ipswich have filed a second appeal with the state’s Housing Appeals Board regarding the Zoning Board’s decision to uphold the Planning Board’s site plan approval of the business.

A group of abutters and near neighbors to Silver Scone Teas on River Road, already have a case before the Housing Appeals Board, appealing the Zoning Board’s decision to grant a variance to the business that would allow it to operate in the town’s Village District. The case was heard March 25, but no decision has been rendered.

Days before that hearing, Nancy Clark, the attorney representing the neighbor group, filed another appeal, regarding the denial of the neighbors’ appeal of the Planning Board’s decision at the town level. While the Zoning Board issued a decision on the appeal in December, and a motion for rehearing in February, the appeal is only now coming to the Housing Appeals Board, after first going through Hillsborough County Superior Court.

On March 6, Superior Court Judge Charles Temple dismissed the neighbors’ case, without prejudice, and remanded the matter back to the Planning Board. He ruled that there may be outstanding conditions that have yet to be met before the approval of the site plan can be considered final, and thus able to be appealed. Temple instructed the Planning Board to clarify which conditions must be met before the plan is considered complete, and which may be fulfilled after the business is up and running.

The Planning Board has since determined that seven of the conditions placed on the business and owner Jane Elwell must be fulfilled before the application is considered complete.

The arguments put forth in the filing echo many of the same points raised in the other Housing Appeals Board case, including calling into question the eligibility of the Zoning Board members who made the decision. In both filings, Clark argued that two members of the board, David Lage and Chair Walker Farrey, were never reappointed following their initial appointments, for three-year terms.

Madeline Osbon, the attorney representing the Town of New Ipswich, has argued that there is established state law that, “If no successor has been appointed and qualified at the expiration of an appointed member’s term, the member shall be entitled to remain in office until a successor has been appointed and qualified.”

Clark also claimed bias on Lage’s and Farrey’s parts, alleging that Farrey referenced the possibility of the case being remanded to the board again following an appeal if the board showed bias. Clark argued that statement showed Farrey had already made up his mind that he was going to approve the application.

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Also, in a repeat of arguments made in the other case before the Housing Appeals Board, Clark argued that members Jay Hopkins and Brett Kivela showed bias in a prior case related to Silver Scone by consulting with real estate agents on whether the business would impact surrounding properties, outside of public meetings. Clark argued those conversations were ex parte communications, and illegal, and that the conversations influenced the board’s decision to uphold the Planning Board decision.

Clark also alleged the Zoning Board failed to follow the town’s zoning regulations in multiple areas, including the location for a handicapped parking space, which Clark alleged blocked the garage; that the location of at least one component of the stormwater structure was within the wetlands setback; that the proposed walkway was within the wetlands setback; and that the parking lot was not proposed to be surfaced.

In the new filing, Clark has requested that the Housing Appeals Board overturn the Zoning Board’s decision to uphold the Planning Board’s decision, find that the Zoning Board acted in bad faith and that remanding the case back to the town is unwarranted due to the bad faith acts, along with awarding attorney fees.

Ashley Saari can be reached at 603-924-7172, Ext. 244, or asaari@ledgertranscript.com. She’s on X @AshleySaariMLT.