Board of Appeals Dismisses McClure's Building Permit Appeal for 9 North Road

Contruction will continue at 9 North Road after the Board of Appeals Tuesday night voted unanimously to dismiss local attorney Richard McClure's appeal of the building permit for the property.

The board heard testimony from Attorney Richard McClure to appeal the issuance of a building permit to the Epsilon Group, which plans to build an office building for legal and medical offices at 9 North Road.

LLC. Mark Bobrowski, a Concord, N.H., attorney, represented the opposing Epsilon Group.

At the onset of the hearing, Board of Appeals Chairman John Blake asked that both parties and the public limit testimony to the legal issues regarding the property over which the Board of Appeals had jurisdiction.

"What we won't be getting into tonight is a discussion of the preservation restriction itself," he told the audience.

Attorney Richard McClure began his testimony by petitioning the board to do what he felt was the right thing for the town.

"I'm here this evening to ask the board to annul or otherwise rescind the building permit granted to Epsilon," he said.

McClure, who lives near the proposed construction, argued that he had submitted more than 30 counts of evidence to the Land Court that proved his right to appeal the issuance of a building permit to 9 North Road.

These counts included diminished property value that would result from the proposed building, the infringement of open space, as well as traffic problems the property would generate.

The board raised the issue that McClure, though living near the site, had no evidence to prove his standing to appeal.

"I'm not required to bring in an expert witness tonight to testify," he told the committee.

Though lacking evidence as to standing, McClure presented his opinion that the Planning Board failed to adhere to the town's bylaws in issuing the building permit to 9 North Road.

Such infractions by the board, in McClure's opinion, included the neglect of due process, and the lack of requisite approval from the Board of Selectman regarding the property in contention.

"If you're going to take something or restrict something that belongs to someone under an act of state, city, or zoning, you have to follow procedural due process," he said.

In McClure's opinion, the Board of Selectmen were required to know about the plans for construction at 9 North Road, as other committees were duly informed. He also asserted that Epsilon was required to notify abutting landowners about the planned building development.

Attorney Mark Bobrowski contended during his rebuttal that not only were McClure's assertions fallacious, but that he had no standing to appeal the Planning Board's building permit.

As per the town's bylaws, Brobowski argued McClure cannot lay claim to recognizable zoning injury because he lives more than 300 feet from the property in question. Furthermore, Bobrowski argued that because McClure's property was not within the same zoning classification as 9 North Road, he could make no claims of zoning injury, the board said.

"You need to show traffic, noise, litter, some sort of impact on your property which would actually cause diminution in value, if it were quantifiable," he said.

Bobrowski argued that the Board of Appeals should move to dismiss the case, because McClure couldn't prove his standing to appeal the Planning Board's decision.

"You need to nip a lawsuit like this right in the bud," he said.

Before deciding, the Board of Appeals also heard testimony from Roland Van Liew, a resident who supported the position of  McClure.

"Every resident is harmed by this," he said of the proposed development, "because we are losing a recreation area, and we are losing the open space."

Board of Appeals Chairman John Blake said a key component of the dispute was the Board of Selectmen's decision to take no action regarding the preservation restriction.  The board also discussed McClure's choice not to submit any evidence supporting his standing to appeal.

The Board of Appeals voted unanimously to dismiss the appeal due to lack of standing.

This vote by the board does nothing to guarantee, however, that the dispute over 9 North Road is over. Before finishing testimony, McClure assured the audience that he would seek every legal recourse necessary.

"Whether this board votes to uphold the permit or deny the permit, someone's going to continue (this issue) into land court," he said.