Ridgeline application result of bad planning board advice

Winchester residents have found themselves in a tangled mess of zoning confusion regarding Ridgeline. The question is, how did it get to this stage?
The zoning board of adjustment doesn’t have the authority to make advisory determinations, and it didn’t. It is required to act on applications presented to it. Land use staff can, and are encouraged to, provide “guidance” to applicants.

The planning board can offer advice, but that advice isn’t always correct and, most important, is not legally binding.

On March 21, 2016, the planning board advised Ridgeline that its proposed paramilitary shooting range/marksmanship park/survival training facility (according to the zoning ordinance’s Table of Usage) was permitted in the commercial district under the general category “Outdoor amusement/recreation/sport” — further defined as “Including but not limited to mini golf, amphitheater, golf courses and athletic areas” — and that it required a special exception in the agricultural district, and a variance in the residential district.

Would an applicant proposing an unfenced exotic predatory animal park be given that kind of leeway? (Outdoor amusement ... “not limited to.”)

The handbook for ZBAs published by the state makes it clear that to qualify for a special exception, a proposed use must be explicitly permitted (mini golf, for example) in a particular zone. Otherwise it requires a variance. Since the proposed use is not explicitly permitted in any of the three zones, it stands to reason that a variance would be required for each of them. Surely the law wouldn’t require a higher degree of “explicitness” for permission by special exception than for ordinary permission?

Did the planning board’s apparently erroneous advice lead the ZBA to believe that Ridgeline comfortably fell within the above category with regard to a special exception, that no explicitness was required, and that it was obligated to accept the planning board’s opinion and accept a general (“not limited to”) standard for qualification for a special exception?

If Ridgeline’s applications were somehow revived by court action, the ZBA could, and rightly should, deny the application for a special exception, thereby justly overruling the non-binding advice of the planning board.

However should the ZBA somehow approve both applications, would Ridgeline then go to the planning board for a site plan review, and would the planning board take a cue from the ZBA’s approval of a special exception and allow it to proceed in the commercial district?

If no application for a variance for the commercial district were to come before the ZBA, and the planning board were to allow what should not be allowed, what recourse would residents have? I suspect the only recourse would be the same option they have in most matters involving local government disputes — tens of thousands of dollars in legal expenses to sue the town for redress. There may be another method of contesting a decision by the planning board, beyond expressing an opinion at a hearing, but I am not aware of it.

We can’t discount the complexities and ambiguities of land-use laws, the vagaries of zoning ordinances, and the difficulties of becoming fully educated and informed volunteer board members as all playing some role in these kinds of messes that arise in towns (and courts) throughout the state.

But perhaps the issues raised by Ridgeline can serve as a “teaching moment” and more careful scrutiny can be applied in the future.

Hopefully, the Ridgeline experience is over, and the town won’t be faced with any of the above scenarios.

SUSAN NEWELL

Winchester