By Rod Hansen
Staff Writer

A zoning ordinance halting property subdivisions may have infringed on land owners’ rights, a lawsuit before the New Hampshire Supreme Court claims.

Arguments in the case of Weare Land Use Association vs. the Town of Weare and the Town of Weare Planning Board were presented to the state Supreme Court on March 16. The case calls into question the interim growth management ordinance passed at the Town Meeting of March 2004.

According to court records, that ordinance prohibits the planning board and the zoning board of adjustments from accepting or acting on major subdivision applications, defined by the town’s zoning ordinance as a subdivision creating a total of three or more lots, until the expiration of the ordinance.

The Weare Land Use Association is a voluntary nonprofit organization composed of eight property owners who had subdivision applications before the planning board toward the end of 2003 until Town Meeting of 2004.

One such land owner is Ralph Joyce, a 10-year resident of Weare and a retired attorney from North Andover, Mass. He is a founding member of the Weare Land Use Association.

Joyce said the Weare Planning Board declined to process his subdivision application for 21 lots in a 56-acre parcel off of Colby Road in early 2004.

“The planning board told me and several others to come back in a year,” Joyce said, adding that he is not against the idea of limited growth.

“We contend we never contested the limit of building permits – the intent is to limit the growth for a finite period of time. Our contest is (the growth ordinance) did not give them the right to cut off subdivisions,” Joyce said.

According to planning board Chairman Paul Morin, the warrant article requesting the growth ordinance was sponsored by the planning board, and he acknowledged that applicants with major subdivision plans did not receive planning board hearings in late 2003 or the first months of 2004, or for the rest of 2004 following the ordinance’s approval at Town Meeting.

“We told (subdivision applicants) we were not able to process their applications at that time,” Morin said.

Joyce said he considers this case to be akin to the recent uproar over the home of U.S. Supreme Court Justice David Souter.

Souter, a Weare resident, became the subject of a property dispute after a group wanting to protest one of Souter’s judicial decisions hatched plans to turn Souter’s home into a hotel. That effort was quashed at this year’s Town Meeting.

“I don’t understand how Weare can get into such an uproar because of a Supreme Court decision, when the local planning board is depriving citizens of their property rights more directly,” Joyce said.

Morin countered that the planning board enacted the growth management ordinance as a way to ease the spike in subdivision applications the board processed during late 2003.

The planning board meets twice a month, Morin said – once for hearings and once for work sessions.

“It was not uncommon for us to be (at the meetings) past midnight,” he said.

Members of the Weare Land Use Association filed the case in the Northern District of Hillsborough County Superior Court in Manchester only days after the ordinance went into effect, Joyce said.

The Land Use Association filed an appeal in the fall of 2005 after the Superior Court ruled in favor of the planning board.

“We knew this was an appellate issue; we knew this had a chance of going to the state Supreme Court,” Joyce said.

Lawyers for both sides could not say for certain when they expected the Supreme Court to issue a ruling in the case.