Here is a brief timeline of the various stages that EquiVise LLC's project for George and Lorraine Meyer's 140 acres on Route 11 has gone through. They originally proposed commercial use (supermarket and retail stores) on 40 acres adjacent to Route 11 and 200 units of clustered housing for the elderly on the remainder. The lot is partly in the Industrial Business (IB) District and partly in the Agricultural Residential (AR) District.
- Sep 30, 2003
- Farmington voters approve an Interim Growth Management Ordinance, halting large residential development for one year.
- Nov 17, 2003
Landowner George Meyer and EquiVise representatives Eric Pearson (Vice
President), Steven Mayo (Vice President), and Harold Peterson ask the
selectmen to sponsor a ballot article for zoning changes (viz.,
extending the Commercial Center District and creating an overlay district
for elderly housing) that would allow EquiVise's project to proceed.
They mention that they expect to put 200 homes selling in the low
$200,000 range on 100 acres. Responding to a question from Charlie
King, EquiVise said the houses would not be connected to the town sewer
system. After discussion, the selectmen vote four to one to sponsor the
article, and recommend it to the Planning Board.
[Meeting minutes not available on the town website]
- Dec 16, 2003
Meyer, Mayo, and Peterson present their scheme and the proposed zoning changes
to the Planning Board. Some, but not all, board members express enthusiasm:
Tsiros: This is the best opportunity Farmington has for something positive. . . . I'm delighted.
Watson: I'm excited about this and have good feelings about it.
Horgan: The concept is great.
King: I see a lot of issues here on what is presented.
Public hearings are scheduled for January 6 and 20.
- Jan 6, 2004
Public Hearing before the Planning Board. Meyer says that the proposed
scheme would have very little need for town services. Charlie King
worries about lack of coordination with the Zoning Ordinance and Master
Plan and says, "To just allow this as written would allow other
developers to come in and abuse. Going forward is not in the best
interest of the town." Troy Robidas suggests that rezoning along Route
11 should be worked on, but that the proposal is perhaps a year too
soon. George Meyer says, "I'm concerned about delays. We've been
twenty years with this property and I've lived here thirty-five
years—that should account for something."
- Jan 20, 2004
Continuation of Public Hearing. Jerry McCarthy expresses concern about
the impact on schools and water usage. He suggests a Special Exception
as an alternative to the zoning changes. Harold Peterson of EquiVise
says, "I don't believe a Special Exception can be utilized because
you haven't established an Elderly Housing
Ordinance. . . . We don't have authority to discriminate
on age so I don't believe you can use Special Exception." [CCC
emphasis] Barry Elliott presents a letter in favor of the proposed
article. Elliott, seconded by Watson, moves to recommend the article
for inclusion on the 2004 Town Warrant. For: Elliott, Watson, Tsiros;
against: King, White, Robidas. Chairman Horgan breaks the tie by
voting in favor of the motion. The zoning changes are included on the
Warrant as Article 2.
- ca. Mar 1, 2004
- Barry Elliott's letter read to the Planning Board on January 20, with some changes and additions, appears in Farmington voters' mailboxes. It was not sent out by Elliott as part of his campaign for selectman, but by EquiVise, whose name appeared nowhere in the mailing or on the envelope.
- Mar 9, 2004
- Article 2 is defeated; 324 votes for the article, 558 against.
- Oct 8, 2004
- EquiVise files an application for a Special Exception (SE) with the Zoning Board of Adjustment (ZBA).
- Oct 21, 2004
The Technical Review Committee (a support committee for the Planning
Board, not the ZBA) meets with EquiVise to discuss their proposal.
[See also the January 5, 2005 entry.]
- Jan 5, 2005
- The chairman of the Planning Board, Charlie King writes a letter to Town Administrator Ernest Creveling, Planning Director Paul Esswein, the ZBA, and the Board of Selectmen, pointing out that EquiVise's application for a Special Exception should not have been reviewed by the Technical Review Committee (TRC), since that committee was created by the Planning Board to aid that board regarding subdivision and site review. The TRC's review of the SE application is inconsistent with the purpose of the TRC defined by the Planning Board and State RSAs.
- Feb 3, 2005
EquiVise appears before the ZBA to request a
Special Exception to allow elderly housing in the Industrial Business
District on the lot owned by the Meyers. They now are looking at
140 units instead of 200, and will reserve the Route 11 frontage for
possible IB use. The meeting begins with a non-public session with
attorney Tim Bates to discuss the meaning of "Special Exception".
Following that, Greg Michael, attorney for EquiVise, speaks to the
Board. His presentation is soon interrupted by Neil Gosselin and Randy
Orvis. Randy says, "Before you go into the merits of your case,
demonstrate to us why you think that this use is even allowed by
Special Exception. We are not sure by reading our ordinance that this
is even allowed. . . . We'd like to hear your arguments
on that first." Michael argues that because of the over-55 age
restriction, the proposed two-bedroom detached condominium units are
not Single Family Detached Dwellings—or indeed of any housing type
explicitly itemized (all not permitted in the IB district)—but fall
under the category of Residential Uses Not Specified (termed "ominous
category" in the minutes), allowed by SE, and that the category of Single Family
Detached Dwellings listed in the table in the
Zoning Ordinance (PDF, 398 KB) is really the
category of Single Family Detached Dwellings Except Those That Are
Age-Restricted (despite the common-sense definitions in the
ordinance).* The Planner suggested filing for a SE to the
clients [apparently overcoming Harold Peterson's earlier doubts —CCC].
If it is denied they would refile for a variance. In public
comment, Charlie King, after remarking that the project is a "great idea",
says, "That is the main point of the question: whether it is consistent with the
uses of the zone. Whether it is a good idea—that's not relevant regarding
the Special Exception criteria." Despite misgivings voiced by various board
members, they vote to to find that elderly housing is a use allowed by SE,
and allow Michael's presentation to proceed. Mark Fougere follows him,
with economic estimates: sale price per unit $220,000; tax and motor-vehicle
registration income to town: $500,000; cost to town: $79,000. George Meyer
says that he tried for twenty years to attract IB use for the land, without
success, because of the land characteristics. Randy Orvis asks for a site
walk. He also says, "I'm having a real tough time with it being consistent
with the zone to get a Special Exception; although that's not saying they don't
qualify for a variance—that they haven't applied for yet. . . .
It seems to be the way the zoning is written that it is inconsistent, and we're
interpreting the zoning. . . . Right now I'd say it's
inconsistent." The board votes to conduct a site walk on February 12, and
continue the hearing to March 3.
* By this sort of argument, an apartment building that bans pets is not a Multifamily Dwelling, as that term is used in the Zoning Ordinance, but also falls under the category of Residential Uses Not Specified.
- Feb 12, 2005
Site walk. The minutes are brief enough to quote in full:
Call to Order: 9:00 am. All in attendance caravanned to the site where the meeting reconvened to conduct brief site walk. Late arrivals joined at site. Discussion limited to identification of area to be developed.
Site Walk adjourned at approximately 10 am.
[Site-walk minutes. These minutes have an interesting history. They were not available to the public until March 22, 38 days after the site walk, instead of the statutory 144 hours (6 days). Planner Paul Esswein told the selectmen on March 21 that handwritten notes made by Russell Stoakes were in the records. The planning office was asked by e-mail on March 22 for a copy of the draft minutes; they responded with a document created after the request, lacking a sentence that appears in the minutes approved without amendment on April 7 and quoted above. When asked for a copy of the hand-written notes, Esswein responded that he had confusedly been thinking of notes taken for a different (Planning Board) site walk; i.e., there were none for the ZBA site walk. Note that Farmington has previously been in trouble regarding compliance with RSA 91-A.]
- Mar 3, 2005
There is a short non-public session with
Attorney Laura Spector on the EquiVise matter. The continued hearing picks up
later on in public session. Greg Michael summarizes his previous presentation.
He remarks, "If you look at [the SE criteria in Section 2.00] literally,
literally, it is almost impossible to comply." Paul Esswein
directs the board to consideration of Section 2.08. Neil Gosselin comments
that the proposal appears to be not in the spirit of the ordinance.
After discussion, Russell Stoakes (seconded by Donna Gorney) moves that the
proposal is indeed consistent with the character of Paragraph 2.08D. The
motion passes unanimously. [In the broadcast, "ayes" from several board
members were inaudible, and only Stoakes raised his hand. Vice Chairman
Gosselin did not call for "nays", so presumably he heard favorable votes
from all.] Esswein leads the board through the process of establishing
that the general conditions of Paragraph 2.00A were satisfied. He then reminds
them that under 2.00B they can impose conditions. Two of the imposed
conditions are noncontroversial, formalizing items from EquiVise's
presentation. Gosselin reads from a letter from ZBA member Randy Orvis (absent
because of business elsewhere) in which he suggests that the housing density
permitted be the same as in the Agricultural Residential District. Stoakes
says that approving that condition "may be killing the project by granting
the Special Exception." Someone (from EquiVise?) in the audience bursts out,
"You are. I'll let you know that now—" Charlie King interrupts with
a point of order: public input is closed. The board eventually imposes a
condition that the maximum density is to be established by the Planning Board.
[Note that the Planning Board does not have the authority to establish housing
- Mar 8, 2005
- George Meyer is elected selectman, with six more votes than Jerry McCarthy.
- Mar 14, 2005
At the meeting of the Board of Selectmen, Paul Parker states that the
EquiVise hearing before the ZBA was full of procedural errors, that the
board members were inexperienced volunteers, and that a new hearing was
necessary to correct the errors. Joan Funk agrees that the ZBA did not
follow procedures. Parker, seconded by Paula Proulx, moves to have the
Board of Selectmen appeal the decision made on March 3 to grant a
Special Exception. With Meyer recused, Parker and Proulx vote in favor
and Funk and Scruton against; the motion fails on a tie. Joan Funk
moves to ask for a Legal Review by the Town's Attorney on whether the
town was liable because of the ZBA's decision. The motion passes, 3 to
1 (Funk, Parker, and Proulx in favor, Scruton against).
- Mar 21, 2005
At the Board of Selectmen's meeting, Town Administrator Ernie Creveling
reports that attorney Tim Bates had stated that there would be no
damages to the town as a result of the decision, but that there might
be legal expenses if someone with standing asked for a rehearing, and
the matter eventually was pursued to Superior Court. Paul Parker reads
portions of the Zoning Ordinance that he believes had not been properly
addressed, and says that the ZBA should have the opportunity to correct
the many procedural errors it made. Paula Proulx states that it would
be better if corrections were made before someone with standing asked
for a rehearing—she is aware of a group planning to do that.
Paul Esswein agrees that procedural errors had been made. He mentions the
site walk on Feb 12. Parker asks whether there were minutes of the site
walk. Esswein says that handwritten minutes by Russell Stoakes were in the
record. Parker makes a motion for the Board of Selectmen to appeal the
ZBA's decision; no second. Proulx moves to retain outside counsel to
examine the procedures in the decision; Parker seconds it. It fails on
a tie vote (Parker and Proulx in favor, Funk and Scruton against).
- Mar 28, 2005
At the end of the Board of Selectmen's meeting, Paul Parker asks Town
Administrator Ernie Creveling if he knows of any memos from Code
Enforcement Officer Jack Dever to the selectmen that had not been
presented to the selectmen. Creveling asks what memo is Parker
referring to. Parker produces a memo from
Dever dated March 18 that had
not been given to the selectmen on March 21. [It had been withheld
while Creveling elicited a watered-down version from Dever's employer.
That (March 23) version was given to
the selectmen.] In the March 18
memo Dever complained that the Code Enforcement Officer had been
bypassed, a "subversion of the [zoning] ordinance", when EquiVise
applied directly to the ZBA for the Special Exception. Creveling
argues that Dever and his employer did not know all the facts, and that
once they were aware of the facts they came up with the new memo in place
of the old one.
- Apr 4, 2005
- Motion for rehearing filed with the ZBA by Margaret Russell, Norman Russell, Paul Parker, and Paula Proulx.
- Apr 7, 2005
ZBA denies the motion for rehearing, on grounds that it was late. (The deadline
was April 2, a Saturday, when town offices were closed.) The board votes
not once, but twice, to deny the motion.
- May 3, 2005
- TFMoran, Inc. presents a conceptual plan for their client EquiVise's scheme to the planning board for review.
- May 6, 2005
- Paul Esswein notifies EquiVise that at most 39 units could be built on the lot.
- May 10, 2005
- (Or May 11.) The Town of Farmington is notified of a suit filed against it in Strafford County Superior Court (PDF, 119 KB) by Margaret Russell, Norman Russell, Paul Parker, and Paula Proulx. The suit appeals the ZBA's denial of a rehearing and also asks for declaratory relief under RSA 91-A and RSA 491:22. The court hearing is scheduled for August 25, 2005. (Docket No. 05-E-0073)
- May 23, 2005
At the meeting of the Board of Selectmen, Chairman Joan Funk reads a
statement giving her personal opinion of
Parker and Proulx's participation in the suit against the town.
- July 6, 2005
- Town attorney Timothy Bates files an Answer in the case of Margaret Russell, Norman Russell, Paul Parker, and Paula Proulx v. Town of Farmington.
- July 13, 2005
- The town attorney files a Motion for Partial Dismissal in the case.
- August 4, 2005
- The plaintiffs' attorney, Donald Gartrell, files an Objection to the Motion for Partial Dismissal.
- August 25, 2005
- In Superior Court, Strafford County, Justice Peter Fauver hears arguments from town attorney Timothy Bates and plaintiffs' attorney Donald Gartrell about Bates's motion for partial dismissal and a motion from Gartrell for a continuance. Justice Fauver does not rule on the town's motion, but does grant the continuance. Gartrell is seeking, through the discovery process, to extend the record in the case beyond that supplied by the town.
- October 18, 2005
The Planning Board hears a second conceptual plan by EquiVise, this
time regarding the ZBA's condition that the PB determine the maximum
density for the project and Paul Esswein's determination, at the
request of the PB and as interpreter of the Zoning Ordinance in his
assumed role of Code Enforcement Officer, that the ordinance would
permit no more than 39 dwellings. Paul Parker recuses himself.
Charles Wibel, who supported the project in letters to The
Rochester Times, is asked by chairman Charlie King whether he
too wished to recuse himself. Wibel chooses to stay seated. EquiVise's
lawyer, Dennis Robinson, asks the board to overrule Esswein's
determination and permit the 140 units they are seeking to build. King
argues that the board does not have the statutory authority to
determine density, even though the ZBA had directed the PB to do so.
Wibel, Watson, and Horgan, praising the project, want to allow the 140
houses. King permits members of the audience to speak, asking them to
limit their comments to the question of whether the board had the
authority to make the density decision. A number of people speak in
favor of the project (ignoring King's request), including Joan Funk
(the chairman of the Board of Selectmen) and former selectman Bill
Tsiros. Norman Russell says that he is speaking neither in favor nor
against the project, but that he believes the board does not have the
authority to establish housing densities. The board members then
continue their discussion. David Kestner says that he can see the
merits of both the project and King's point on the lack of authority.
Wibel, seconded by Watson, moves that "believing as confirmed by the
ZBA that the Planning Board has the authority to set the density," the
number of units permitted be set at 140, subject to final approval.
(The exact wording of the motion becomes muddled during the subsequent
discussion.) Wibel, Watson, and Horgan vote in favor; King and Kestner
- October 31, 2005
- In the case of Russell et al. v. Town of Farmington, Justice Fauver issues an Order granting the town's motion for partial dismissal, thereby denying the appeal of the ZBA's decision to grant a Special Exception, and dismissing the petition for declaratory relief. He rules that the request for a rehearing was not timely filed, although he notes that in June 2005 the state legislature amended RSA 677:2 to make the first day counted the day following the day of the ZBA decision, in line with other filing periods in the statutes. That would have made the request for rehearing timely, but the amendment went into effect too late to aid the appeal, according to Justice Fauver. With the appeal denied, Justice Fauver rules that he does not have jurisdiction to rule on the petition for declaratory relief.
- November 11, 2005
- Attorney Gartrell files a Motion for Reconsideration, recorded on November 15 by the court.
- December 15, 2005
- Justice Fauver issues an Order on Motion to Reconsider, denying it in part, and granting it in part. The granted part deals with the question of whether the minutes of several ZBA meetings were not made available to the public within the statutary 144 hours, a "question of law".
- January 26, 2006
- The plaintiffs' attorneys file an appeal with the New Hampshire Supreme Court. The appeal form lists specific questions raised in the appeal.
- February 14, 2006
- The Supreme Court sends notice that it will hear the appeal. (Under present Supreme Court rules, all appeals are accepted.)
- March 7, 2006
EquiVise presents an application for subdivision to the Planning Board.
The application is accepted, with temporary waivers for some items to
be completed later. The hearing is continued to the April 4 meeting.
- April 4, 2006
EquiVise continues the presentation on its application for subdivision.
Jim Horgan, seconded by Charles Wibel, moves that no more than 140 housing
units be constructed. Voting in favor: Horgan, Wibel, Watson, MacVane, and Kestner;
voting against: King. The application is continued again until August 1,
- May 19, 2006
- The plaintiffs' attorneys file a brief for the appeal to the Supreme Court. (Docket No. 2006-0062)
- January 4, 2007
- EquiVise withdraws its application for subdivision, citing changes in the housing market as their reason for doing so.
- ca. February 1, 2007
- The NH Supreme Court notifies the plaintiffs that it will not consider the case (Docket No. 2006-0062). The suit ends.