Property sale saved Winchester a lawsuit

It would appear that, at least for now, Winchester has dodged a bullet — or potentially millions of them. The sale to a third party of the property upon which Ridgeline Marksmanship Park intended to build its paramilitary training facility has put an end to its current attempts to impose itself on Winchester.
Ridgeline should be grateful that it has been saved further expense in pursuit of an unlawful goal, and Winchester citizens should stay alert should a phoenix arise from the ashes.

Neither of the company’s applications, for a special exception or for a variance, could be legally granted. The people of Winchester should also be grateful. If the applications had been denied, no doubt taxpayers would have paid to defend the decisions against Ridgeline’s high-powered legal team. If the ZBA had approved the applications, opponents were prepared to contest the decisions, thereby paying the tabs for both their own attorney and the defense of the ZBA, through their taxes.

With regard to the application for a special exception, the law as expressed in the guidelines for zoning boards, as published by the state Office of Economic Planning, is absolutely clear. On page II-5 it states: “Unless a particular use for which an application is submitted is stated in the ordinance as being explicitly allowed by special exception, the board of adjustment is powerless to grant a special exception for that use.” The operative words are “explicitly” and “powerless.” The proposed use is not permitted explicitly anywhere in the ordinance, either by special exception or otherwise. That means a variance would be required for the property in question.

Standards for variances are set out in state law, and all of five criteria must be met. Reason dictates that there are solid legal arguments as to why none of the criteria would be met, but an application need fail by only one. Space doesn’t allow for those arguments to be printed here, so I will limit myself to two that are simple and inarguable within the law.

The third criteria is that “substantial justice is done.” In order for justice to be done, there must be injustice to be remedied. No unique injustice was ever done by the ordinance to the applicant (landowner) or Ridgeline. An applicant can’t seek redress from a non-existent harm.

The fifth criteria is that “literal enforcement of the law would create a hardship.” Hardship has a special definition in this context, as settled by case law. Essentially, in these circumstances, it means that the property cannot be used as zoned, the proposed use is the only reasonable use, and the property has unique qualities that distinguish it from surrounding areas. None of those circumstances apply in this case.

Those who are so inclined may wish to say a small prayer of thanks for deliverance from a facility that could do only harm to the town of Winchester.

SUSAN M. NEWELL
Winchester, NH