Town defends growth ordinance
Developer says limit to building is illegal
By KATE DAVIDSON
December 8, 2006
The town of Boscawen is asking a judge to dismiss a lawsuit that claims the town’s new interim growth management ordinance, which temporarily limits housing projects and blocks the construction of subdivisions, is illegal and unconstitutional.
Landmark Planning and Development LLC claims the town did not meet the criteria required to pass an interim growth ordinance. The lawsuit, filed in Merrimack County Superior Court in September, also alleges the statute is unconstitutional because town officials failed to notify Landmark of the proposed ordinance while the company prepared an application to build a 27-unit subdivision.
The application was never filed, and now the planning board is not accepting any more applications. The company is asking a judge to determine the ordinance should not apply to them.
But the town maintains in its answer to the lawsuit that "unusual circumstances" did exist in town allowing for the statute, and that town officials were not required to provide special notice to one company.
Landmark "was not entitled to any special treatment; it was not singled out for review different from other developers; and it failed to submit a completed plan to the Planning Board before notice of this ordinance was posted," the answer to the lawsuit said. "Therefore, (Landmark) is no differently situated than all the other developers whose projects may be stalled as a results of the town’s adoption of the growth ordinance."
According to town documents, 102 homes were built in Boscawen between 2000 and 2006. But between Jan. 1 and June 13 of this year, the planning board said it received applications for permits to create 346 new homes, a number that Landmark claims is inflated. If approved, the projects would have increased the number of homes in town by 27 percent, although the time period over which the increase would have occurred is unclear.
The town provided notice that it was considering the ordinance and held a public hearing on June 13.
Officials from public works, the police and fire departments, the Merrimack Valley School District, the recreation department and the recycling committee, spoke in support of the ordinance. The resources provided by those departments could not handle an influx of residents on that scale, they said.
Voters approved the measure in September.
The ordinance limits the number of building permits issued to no more than 1.5 percent of the total number of homes in town as of Jan. 1. The ordinance is in effect for one year while selectmen amend the town’s permanent zoning rules.
"They need to show some emergency for why they couldn’t wait for enactment of a regular growth management ordinance," said Jennifer Parent, Landmark’s attorney. "Our position is, the town hasn’t done that."
Landmark’s suit also claims the ordinance was not rooted in any scientific study and shifts growth to other areas within the region by excluding outsiders and failing to increase town services necessary for population growth.
But Boscawen’s attorneys, who did not return a phone message seeking comment yesterday, are claiming the interim growth management ordinances are different than permanent growth management ordinances and do not have to be based on a statistical study.
Adopting the ordinance was related to a legitimate planning purpose - to create a permanent growth management ordinance - and therefore meets constitutional muster, the document said.