Rehearing Not Guaranteed in Brewing Lawsuit

A sizable Hampton Beach condominium project could spark a lawsuit should the Hampton Zoning Board of Adjustment deny selectmen's requests for a rehearing on the board's approval of the structure.

It's unclear whether the zoning board will grant selectmen's requests to reevaluate several variances granted in March for a five-story, mixed-use building at 339 and 345 Ocean Blvd., because board members say they won't discuss the issue or other business until they meet in public on May 16. The board is within its power to deny the rehearing or grant a rehearing and then reevaluate the proposal at a subsequent meeting.

Tom McGuirk said his board will go into rehearing discussions with an "open mind" and without any pre-established biases or stances, as he said that's "exactly what happened" when his board surprisingly approved the condo project in March.

"We had no idea which way it was going to go," said McGuirk, who was the acting chairman during the vote to approve the project, which needed a variance because it exceeds Hampton's 50-foot height limit on buildings, among other things. "Nobody knew this was going to be approved. I certainly didn’t. I thought it was a longshot at best."

Selectmen filed a six-page motion for rehearing on April 19, contending that allowing the proposed structure — which calls for five street-level commercial units below 24 two-bedroom residential units — to have a maximum roof height of 65 feet and a 70-foot-tall elevator override "provides no distinct public benefit referenced by the applicant that cannot be realized by constructing a building within the fifty foot (50’) height restriction."

"The grant of this variance represents the second project to receive a height variance in the recent past," reads the motion for rehearing, which came after Selectmen Ben Moore was the only member of the public to speak out against the project during the zoning board's March 21 meeting. "The Selectmen are concerned that the Zoning Board of Adjustment is in essence legislating new height restrictions on a case by case basis without the required voter approval necessary for a Zoning amendment.

"Substantial justice will not be served by granting the height variance. There is nothing unjust about the enforcement of this height restriction. The applicant acknowledged there is no other structure 'on the beach' that is as tall as the proposed structure."

The full motion that is attached to this story as a PDF.

McGuirk said he disagrees, though, that approving the structure, which would be constructed after razing existing buildings at the site of the Shirley Inn and Aegean Motel, would go against public interest and that it would "likely take away from the very desirable character" the beach community.

McGuirk said the heights of the various pieces of the building aren't "markedly different" from other Hampton Beach buildings and other overwhelmingly-approved recent projects like the Sea Spray Condominiums, which he believes is why all zoning board members — minus Bill O'Brien, who was absent — voted to approve the project.

"Obviously we listened to their application, and we did find that these types of projects need variances because the zoning at the beach doesn’t make any sense," said McGuirk. "Zoning is so restrictive and not applicable to these zones that you almost have to have a 100 variance to do anything. These variances are common, and the reason is proper zoning hasn’t been written for town of Hampton.

"The physical structure of this could be built if the use was different, but because the project is two-family condos and not single room hotels, that's why it needs a variance. The motion for rehearing says the master plan calls for small-scale and single family homes. That's all well and good, but this is a commercial zone and not a residential zone."

If selectmen disagree with the zoning board's ruling on May 16 — which is possible because the motion contends that the applicant's and board's "reliance on the nonconforming status of the Current structures in order to justify bypassing the ordinance is misplaced" — selectmen can attempt to overrule the decision at the superior court level.

Selectmen and the zoning board are each being represented by outside legal counsel in the budding lawsuit, which several Hampton Beach residents have told Hampton-North Hampton Patch is a misuse of taxpayer dollars because the town would essentially be going to court against itself.

"I am not a developer, but I think from 35 years of business experience, that to make this particular project work (and to get the funding/credit from a bank) the proposed project is solid," said Steve LaBranche, a member of the Hampton Beach Village District Precinct, in an e-mail. "[Fifty] feet is a number.

"Ocean front real estate is too valuable to waste. It should be exploited to its highest potential. It would be a crime to the tax payers of Hampton to do anything less."

LaBranche, and others, suggested that there is more support than opposition for the project among the beach community despite the fact that the proposed building is "huge," and LaBranche suggested "this one project could make the difference" in either furthering beach rebirth or the stigma that Hampton is wary of change.

"I support the Board of Adjustment and everyone I have talked to supports their decision," said LaBranche in an e-mail. "At the last Hampton Beach Area Commission meeting (this past week), the issue was discussed and they fully support the Board of Adjustment. I don't want to send a message to businessmen/developers that the Town of Hampton is hostile to development. As well, I wonder if it is fair to the property tax payers to turn away development that will add so many dollars to the tax base."