[Randy Owen]

STATE OF NEW HAMPSHIRE
SUPERIOR COURT

CARROLL, SS SEPTEMBER TERM, 2020

Donald J. McWhirter

v.

Town of Tuftonboro, New Hampshire

Case No.

APPEAL OF DECISION OF THE TOWN OF
TUFTONBORO, NEW HAMPSHIRE PLANNING BOARD
PURSUANT TO NEW HAMPSHIRE R.S.A. 677:15

NOW COMES the Petitioner, Donald J. McWhirter, with an address at 10 North Chase Point Road, Mirror Lake, New Hampshire 03853 (hereinafter referred to as “McWhirter”), and complains against the Town of Tuftonboro, New Hampshire, with an address at P.O. Box 98, 240 Middle Road, Center Tuftonboro, New Hampshire 03816 (hereinafter “Town”), stating as follows:
1. McWhirter is the owner of certain premises referred to as Tuftonboro Tax Map 39, Lot 1-12, situate at North Chase Point Road, Tuftonboro, New Hampshire (hereinafter the “McWhirter Premises”).

2. McWhirter obtained title to the McWhirter Premises by Warranty Deed of Joan M. Allard, Donald J. McWhirter and Mary Ellen Haley, Sole Trustees of Mountain View Real Estate Trust, to Donald J. McWhirter dated and recorded January 18, 2013 in the Carroll County (New Hampshire) Registry of Deeds at Book 3054, Page 236 and by Quitclaim Deed of Young Men’s Christian Association Camp Belknap to Donald J. McWhirter dated April 10, 2019 and recorded September 3, 2019 in the Carroll County (New Hampshire) Registry of Deeds at Book 3461, Page 282.

3. The McWhirter Premises are comprised of approximately one (1) acre.

4. Situate on the McWhirter Premises is a single family residence.

5. The McWhirter Premises is situate in the Low Density Residential District in the Town of Tuftonboro, New Hampshire.

6. Section 3.4.1 of the Zoning Ordinance of the Town of Tuftonboro, New Hampshire (hereinafter the “Zoning Ordinance”) provides, with respect to the Low Density Residential District, that “(t)he intent of this District is to provide for predominantly low density residential and agricultural development on individual Lots or in cluster developments, which can be accommodated on the land without major disruptions of the natural terrain, vegetation, watercourses or surface drainage and which would not have Town water or sewers.”

7. Abutting the McWhirter Premises is a certain tract or parcel of land, with the buildings thereon, comprising approximately seventy two and twenty seven hundredths (72.27) acres (hereinafter the “YMCA Camp Belknap Premises”), owned by Young Men’s Christian Association Camp Belknap (hereinafter “YMCA Camp Belknap”), a New Hampshire non-profit corporation with a principal office and mailing address at 11 Chase Point Road, Mirror Lake, New Hampshire 03853.

8. Upon information and belief, YMCA Camp Belknap obtained title to the YMCA Camp Belknap Premises by Warranty Deed of New Hampshire Young Men’s Christian Association (a/k/a New Hampshire YMCA, and f/k/a The State Executive Committee of the Young Men’s Christian Association of New Hampshire) to Young Men’s Christian Association Camp Belknap dated July 1, 1997 and recorded July 25, 1997 in the Carroll County (New Hampshire) Registry of Deeds at Book 1708, Page 235.

9. The YMCA Camp Belknap Premises is situate in the Low Density Residential District in the Town of Tuftonboro, New Hampshire.

10. YMCA Camp Belknap is also the owner of certain premises situate in the Town of Tuftonboro, New Hampshire and commonly referred to as Tuftonboro Tax Map 39-2-11, comprising approximately one hundred three (103) acres, Tuftonboro Tax Map 39-2-12, comprising approximately nine (9) acres, and Tuftonboro Tax Map 39-2-13, comprising approximately fifteen and seventy one hundredths (15.71) acres.

11. YMCA Camp Belknap also owns certain premises situate in the Town of Tuftonboro, New Hampshire and commonly referred to as Tuftonboro Tax Map 27-2-1, comprising approximately nine hundred twenty two thousandths (0.922) acres, Tuftonboro Tax Map 39-2-16, comprising approximately six and forty four hundredths (6.440) acres, Tuftonboro Tax Map 40-2-2, comprising approximately seven and one half (7.500) acres, Tuftonboro Tax Map 40-3-33, comprising approximately one half (0.500) acre, Tuftonboro Tax Map 40-3-34, comprising approximately forty four (44.000) acres, Tuftonboro Tax Map 40-3-36, comprising approximately two and six hundredths (2.060) acres, and Tuftonboro Tax Map 40-3-39, comprising approximately twenty seven (27.000) acres.

12. The current use of the McWhirter Premises is residential.

13. The current use of the YMCA Camp Belknap Premises is an overnight and day camp.

14. The YMCA Camp Belknap Premises were utilized by predecessors in title to YMCA Camp Belknap as a seasonal campground and trailer park for the period through approximately 1973.

15. Upon information and belief, there was little, if any, use of the YMCA Camp Belknap Premises during the period between approximately 1973 and approximately 1983.

16. Upon information and belief, the YMCA Camp Belknap Premises returned to active use as an overnight and day camp in and after 1983.

17. On or about April 27, 2020, YMCA Camp Belknap filed a Site Plan Review Application with the Town of Tuftonboro, New Hampshire Planning Board (hereinafter the “Planning Board”) for a project described as “New Air Rifle Range, New Bath House, and (2) relocated/renovated Staff Houses within parcel 039-001-013-000 at YMCA Camp Belknap.”

18. The April 27, 2020 Site Plan Review Application filed by YMCA Camp Belknap with the Planning Board involved the YMCA Camp Belknap Premises only (Tuftonboro Tax Map 039-001-013).

19. The April 27, 2020 Site Plan Review Application did not involve any of the remaining premises situate in the Town of Tuftonboro, New Hampshire owned by YMCA Camp Belknap, including Tuftonboro Tax Map 39-2-11, Tuftonboro Tax Map 39-2-12, Tuftonboro Tax Map 39-2-13, Tuftonboro Tax Map 27-2-1, Tuftonboro Tax Map 39-2-16, Tuftonboro Tax Map 40-2-2, Tuftonboro Tax Map 40-3-33, Tuftonboro Tax Map 40-3-34, Tuftonboro Tax Map 40-3-36 or Tuftonboro Tax Map 40-3-39.

20. A Public Hearing was held by the Planning Board on June 18, 2020.

21. At the June 18, 2020 Public Hearing, the April 27, 2020 Site Plan Review Application was accepted as complete and the matter was opened to Public Hearing.

22. Following the Public Hearing on June 18, 2020, the Planning Board “confirmed there was an error in the notification process” and “the application (was to be) re-noticed and scheduled for July 16th”.

23. On or about July 6, 2020, YMCA Camp Belknap re-submitted a revised Site Plan Review Application (the “Application”) to the Planning Board.

24. A Public Hearing was held by the Planning Board on July 16, 2020 at which Public Hearing the Application was deemed complete, jurisdiction was accepted by the Planning Board and the Public Hearing was held.

25. The Public Hearing was continued to and held on August 20, 2020 and September 3, 2020.

26. At the September 3, 2020 Public Hearing, the Planning Board conditionally approved the Application.

27. On or about September 20, 2020, the Planning Board issued a “NOTICE OF DECISION For September 3, 2020” (the “Planning Board Decision”).

28. The Planning Board further issued, on or about September 20, 2020, “APPROVED MINUTES of the September 3, 2020 Planning Board Meeting.”

29. New Hampshire R.S.A. 677:15(I) states as follows:

“Any persons aggrieved by any decision of the planning board concerning a plat or subdivision may present to the superior court a petition, duly verified, setting forth that such decision is illegal or unreasonable in whole or in part and specifying the grounds upon which the same is claimed to be illegal or unreasonable. Such petition shall be presented to the court within 30 days after the date upon which the board voted to approve or disapprove the application; provided however, that if the petitioner shows that the minutes of the meeting at which such vote was taken, including the written decision, were not filed within 5 business days after the vote pursuant to RSA 676:3, II, the petitioner shall have the right to amend the petition within 30 days after the date on which the written decision was actually filed. This paragraph shall not apply to planning board decisions appealable to the board of adjustment pursuant to RSA 676:5, III. The 30-day time period shall be counted in calendar days beginning with the date following the date upon which the planning board voted to approve or disapprove the application, in accordance with RSA 21:35.”

30. The Planning Board Decision is illegal or unreasonable.

31. New Hampshire R.S.A. 676:4(I)(b) requires, in part, that “(t)he applicant shall file the application with the board or its agent at least 21 days prior to the meeting at which the application will be accepted, provided that the planning board may specify a shorter period of time in its rules of procedure.”

32. Section 4.2.1 of the Site Plan Review Regulations of the Town of Tuftonboro, New Hampshire (hereinafter “SPRR”) provides, in part, that “(a)n application for Site Plan Review approval shall be submitted to the Secretary of the Planning Board at least twenty-two (22) days in advance of a regularly scheduled Planning Board Meeting…”.

33. The Application was filed with the Planning Board on July 6, 2020.

34. The Planning Board accepted jurisdiction of the Application at a Public Hearing on July 16, 2020.

35. The provisions of New Hampshire R.S.A. 676:4(I) and Section 4.2.1 of the SPRR have not been complied with.
36. Sections 1.2.A.1, .2 and .3 of the SPRR provide that “(t)he purposes of these Regulations are to… (p)rovide for the safe and attractive development of the site and guard against such conditions as would involve danger or injury to health, safety, or prosperity by reason of: …(i)nadequate drainage or conditions conducive to flooding of the property or that of another; …(i)nadequate protection for the quality of groundwater; …(and) (u)ndesirable and preventable elements of pollution such as noise, smoke, soot, particulates, or any other discharge into the environment which may prove harmful to persons, structures, or adjacent properties…”.

37. Section 1.2.H of the SPRR provides that “(t)he purposes of these Regulations are to: …(i)nclude such provisions as will create conditions favorable for health, safety, convenience and prosperity.”

38. As provided for in documentation submitted to the Planning Board, specifically including, but not limited to, correspondence dated July 12, 2020 from Peter Cooperdock, CSS, certain information regarding questions about the accuracy of statements included in the Application regarding, among other things, septic system capacity and proximity to wetlands, along with other issues associated with noise pollution, impact on abutters, and light pollution, were raised.

39. Additionally, the Application includes information and documentation indicating that “the noise can be a nuisance to nearby programming and sleeping quarters”, “(e)ach camper that is on the firing line is required to be wearing safety glasses and ear protection specific for rifles”, “(d)ue to the specified muzzle velocity of the selected air rifle (500 fps) and the topography at Chase Point Road, all pellets that are not contained within the range enclosure will pass over Chase Point Road, at minimum 60’ – 3” above the road” and the Avanti 887 Gold Medalist air rifles include a California Proposition 65 warning for lead.

40. For each of the foregoing reasons, the Application fails to comply with the provisions of Sections 1.2.A.1, .2, .3 and H of the SPRR.

41. Section 3.2.1 of the SPRR provides that “(t)he Site Plan Review procedure in no way relieves the applicant from compliance with or approval under the provisions of the Town’s Zoning Ordinance, Subdivision Regulations, Building Codes, and/or other regulations which pertain to or govern the proposed development. No Site Plan will be approved unless it is in compliance with all pertinent ordinances and regulations.”

42. Section 3.6 of the Zoning Ordinance of the Town of Tuftonboro, New Hampshire (hereinafter the “Zoning Ordinance”) requires the granting of a special exception for overnight and day camps.

43. Section 3.7.2 of the Zoning Ordinance provides that “(a)ll special exceptions are subject to the provisions of Section XVII”.

44. The Application is not based on, and YMCA Camp Belknap has failed and/or refused to obtain, a special exception in accordance with the provisions of Sections 3.6 and 3.7.2 of the Zoning Ordinance and Section 3.2.1 of the SPRR.
45. Included in the Application was a request by YMCA Camp Belknap for a waiver of the requirements of Section 6.3.2 of the Zoning Ordinance pertaining to parking travel lanes.

46. Section 6.3.2 of the Zoning Ordinance provides that “(t)ravel lanes shall not be less than: 22 feet wide for 90 degree angle parking; 18 feet wide for 60 degree angle parking; 12 feet wide for 45 degree angle parking; and 10 feet wide for 30 degree angle parking.”

47. The Application proposed that “parking spaces… be 14’ wide”.

48. Section 10 of the SPRR provides the requirements for the granting of a Waiver. Specifically, the granting of a Waiver requires that a majority of those present and voting find that all of the following apply:

The granting of the waiver will not be detrimental to the public safety, health, or welfare or be injurious to other property and will promote the public interest.

The waiver will not, in any manner, vary the provisions of the Zoning Ordinance or Master Plan.

The waiver will substantially secure the objectives, standards and requirements of these regulations.

A particular and identifiable hardship exists or a specific circumstance warrants the granting of a waiver. Factors to be considered in determining the existence of a hardship shall include, but not be limited to:

Topography and other site features.

Available alternative site locations.

Geographic location of the property.

The size/magnitude of the project being evaluated and availability of colocation shall be considered, particularly with regard to telecommunication facilities.

49. McWhirter submitted to the Planning Board oral and video evidence regarding traffic, traffic congestion and safety associated with YMCA Camp Belknap premises.

50. With respect to the Waiver requested in the Application, the Planning Board passed a motion to grant the Waiver by a six (6) to zero (0) vote.

51. The Planning Board failed to discuss and/or find that the provisions of Section 10.1.A through E of the SPRR applied to the Waiver requested in the Application.

52. YMCA Camp Belknap argued to the Planning Board that the use of the YMCA Camp Belknap Premises was a grandfathered, non-conforming use.
53. Non-conforming use is defined in Section 1.1.37 of the Zoning Ordinance as “(a)ny use which lawfully existed prior to the effective date(s) planning or zoning regulations with which it is now in conflict.”

54. Section 5.1.1 of the Zoning Ordinance provides that “(a)ny Non-conforming Use may be continued unless discontinued for a continuous period of twelve (12) months, at which time it may not be reestablished and any future use shall be in conformity with this Ordinance. For the purposes of this Section, ‘discontinued’ shall mean ceased, without any regard for the intent to cease or the intent to re-establish a Non-conforming Use.”

55. McWhirter provided information and documentation to the Planning Board supporting a finding that, to the extent the proposed use of the YMCA Camp Belknap Premises was a grandfathered, non-conforming use, any such grandfathered, non-conforming use had been discontinued for a continuous period of twelve (12) months and, as such, any future use was required to be in conformity with the Zoning Ordinance.

56. The Application is not in compliance with the Zoning Ordinance as the same pertains to grandfathered status, non-conforming use and the requirement that YMCA Camp Belknap obtain a special exception.

57. Section 1.1.20 of the Zoning Ordinance defines “expansion” as “(a)ny increase in the intensity of the use of a Lot, Building, or Structure. This includes, but is not limited to: the addition of bedrooms to a Dwelling; the addition of Dwelling Units to a Lot; or the addition of seats to a restaurant. This may result in a larger footprint or an increase in height.”

58. The proposal included in the Application constituted an expansion as defined in Section 1.1.20 of the Zoning Ordinance.

59. The proposed expansion of the use of the YMCA Camp Belknap Premises required compliance with the provisions of the SPRR and the Zoning Ordinance, specifically including, but not limited to, the obtaining of a special exception from the Zoning Board of Adjustment.

60. No special exception was applied for or obtained from the Zoning Board of Adjustment with respect to the Application.

61. YMCA Camp Belknap argued to the Planning Board “that the proposed uses are not an expansion because the uses are already there and existing… if the Board views it as an expansion the argument is that it can be expanded and referenced the New London case.” See August 20, 2020 Tuftonboro Planning Board Minutes at p. 2.

62. YMCA Camp Belknap further argued to the Planning Board that “the improvement of the shooting range is a natural expansion, natural progression, a natural change.” Id.

63. The argument by YMCA Camp Belknap to the Planning Board is contrary to the terms and provisions of the SPRR, the Zoning Ordinance and case law as it relates to expansion of a non-conforming use and the consideration of factors pertaining to other properties of YMCA Camp Belknap not at issue in the Application.

64. Specifically, YMCA Camp Belknap argued to the Planning Board at the August 20, 2020 Public Hearing as follows:

“Suzanne Brunelle, Devine Millimet, representing Camp Belknap… stated the camp has been there since 1903 therefore, there is no further discussion or issue as to whether it is a prior nonconforming use; noting the current use was in effect well before 1988… She stated the use may not be an enlargement and noted that all of the uses the camp currently has, nothing has changed (cabins, bathrooms and shooting range). She stated the shooting range has been there since the 1940’s and is a prior nonconforming use and the recommendation by the camp is only an improvement in safety. She stated the course of conduct of this particular Board and this town with regard to the camp since 1903 has been to allow these things. She stated bathrooms and housing for staff are not big asks. She stated the camp operates in a large area; noting there were some issues with different tax parcels and questioned the relevancy of such because they are all adjacent parcels. She stated the parcels could be merged into one tax lot however, such is very arbitrary to her and doesn’t feel that argument bears too much weight.” (See August 20, 2020 Tuftonboro Planning Board Minutes at p. 2).

65. In its argument to the Planning Board, YMCA Camp Belknap cited several decisions of the New Hampshire Supreme Court, including the decision in New London Land Use Association v. New London Zoning Board of Adjustment, 130 N.H. 510 (1988).

66. YMCA Camp Belknap asserted that, with respect to “the (proposed) relocation and renovation of (2) cabins for Staff Housing [Johnson Cottage and Kitchen Corp Cabin], a new Air Rifle Range, and a new Bath House” (see Application at p. 1), “it should be noted that a landowner is also allowed to increase the volume, intensity and/or frequency of the non-conforming use so long as that expansion does not produce a substantial change in the effect on the surrounding neighborhood. Town of Hampton v. Brust, 122 N.H. 463 (1982)” (see August 18, 2020 Letter from YMCA Camp Belknap at p. 6) and that “(t)hese requested proposals clearly ‘reflect the nature and purpose’ of a summer camp, and are consistent with Camp Belknap’s other structures and buildings.” See Id. at p. 7.

67. In its discussion of the Application at the September 3, 2020 Public Hearing, the Planning Board discussed “whether the expansion is permissible” (see September 3, 2020 Tuftonboro Planning Board Minutes at p. 3). In furtherance thereof, the Planning Board “referenced the 3 part test; 1) to the extent to which the challenged use reflects the nature and purpose of the prevailing non-conforming use. …; 2) whether the challenged use is merely a different manner of utilizing the original nonconforming use or whether it constitutes a different use and 3) whether the challenged use will have a substantially different impact upon the neighborhood.”

68. McWhirter provided information and documentation to the Planning Board supporting a finding that, with respect to the YMCA Camp Belknap Premises specifically, the proposed use as provided in the Application both constituted an expansion of a prior non-conforming use and would have a substantially different impact upon the surrounding residential neighborhood.

69. The discussion regarding and findings of the Planning Board with respect to the aforementioned “3 part test” failed to support a finding that “expansion is permissible”.

70. The Planning Board based its discussion and approval of the Application on the so-called “3 part test” and failed to address the issues of whether the proposed use of the YMCA Camp Belknap Premises constituted an enlargement or expansion of a prior non-conforming use.

71. The New Hampshire Supreme Court, in its decision in New London Land Use Association v. New London Zoning Board of Adjustment, 130 N.H. 510, 516 (1988), stated as follows:

“Nonconforming uses may be expanded, where the expansion is a natural activity, closely related to the manner in which a piece of property is used at the time of the enactment of the ordinance creating the nonconforming use…However, enlargement or expansion may not be substantial and may not render premises or property proportionately less adequate.” Id. (Citations omitted).

72. Clearly, the proposal of YMCA Camp Belknap will result in a substantial enlargement or expansion of what YMCA Camp Belknap argues is a pre-existing nonconforming use and would render Tax Map 39-1-13 (the YMCA Camp Belknap Premises) proportionately less adequate.

73. Specific to the New London Land Use Association v. New London Zoning Board of Adjustment facts, the New Hampshire Supreme Court stated that, “(a)bsent a willing relinquishment of its nonconforming use, Lakeside may not substantially change the way in which the motel units were situated on the seventeen-acre parcel when the nonconforming use was created.” New London Land Use Association v. New London Zoning Board of Adjustment, 130 N.H. 510, 517 (1988).

74. As the Application proposes both the relocation and renovation of two (2) cabins, the relocation of an air rifle range, and a new bath house, which such relocated cabins and rifle range are not currently located on the YMCA Camp Belknap Premises, the dictates of the New Hampshire Supreme Court in the New London Land Use Association v. New London Zoning Board of Adjustment are particularly instructive.

75. In summary, the New Hampshire Supreme Court stated as follows:

“Therefore, it is the policy of zoning law to construe strictly zoning ordinance provisions which provide for the continuation of nonconforming uses. Keene v. Blood, 101 N.H. 466, 469, 146 A.2d 262, 264 (1958). The policy of zoning law is to carefully limit the enlargement and extension of nonconforming uses. Arsenault v. Keene, 104 N.H. 356, 359, 187 A.2d 60, 62 (1962); Ackley v. Nashua, 102 N.H. 551, 554, 163 A.2d 6, 9 (1960). The ‘ultimate purpose of zoning regulations [contemplates that nonconforming uses] should be reduced to conformity as completely and rapidly as possible…’ 82 Am.Jur.2d Zoning and Planning §191 (1976).” Id. at p. 518.

76. Similarly, in its decision in the matter styled Hurley v. Town of Hollis, 143 N.H. 567 (1999), the New Hampshire Supreme Court stated as follows:

“Whether a proposed use would be ‘a substantial change in the nature or purpose of the [pre-existing] nonconforming use turns on the facts and circumstances of the particular case.’ Conforti, 141 N.H. at 82, 677 A.2d at 150. In conducting this inquiry, we consider: (1) the extent the use in question reflects the nature and purpose of the prevailing nonconforming use; (2) whether the use at issue is merely a different manner of utilizing the same use or constitutes a use different in character, nature, and kind; and (3) whether the use will have a substantially different effect on the neighborhood. Id. at 81, 677 A.2d at 150; see New London Land Use Assoc. v. New London Zoning Board, 130 N.H. 510, 517, 543 A.2d 1385, 1388 (1988). We are mindful that nonconforming uses cannot be substantially enlarged or expanded, but may only be altered ‘where the expansion is a natural activity, closely related to the manner in which a piece of property is used at the time of the enactment of the ordinance creating the nonconforming use.’ New London Land Use Assoc., 130 N.H. at 516, 543 A.2d at 1388; see Conforti, 141 N.H. at 81, 677 A.2d at 150 (permissible scope of the nonconforming use dictated by property’s use at time ordinance enacted that created nonconforming use). Further, ‘[a]ny expansion of a nonconforming use must be evaluated in the context of the zone in which it is located.’ Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 245, 614 A.2d 1048, 1051 (1992)….

…Siergiewicz’s proposal anticipates relocating the business into a new building that is plainly industrial in nature, in contrast to the barn, which is consistent with the residential/agricultural zone…(T)he industrial building’s footprint would be tripled and accompanied by a new and expanded parking lot…(W)e cannot conclude that the proposal is consistent with, or a natural expansion of, the original nonconforming use….

While we have previously upheld an increase in the volume, intensity, or frequency of a nonconforming use that reflects the natural expansion and growth of trade and does not substantially change the use’s effect on the neighborhood, we have done so only within the confines of the existing structure. See Town of Hampton v. Brust, 122 N.H. 463, 469, 446 A.2d 458, 461 (1982) (permitting increase of arcade machines within existing structure); cf. Devaney v. Town of Windham, 132 N.H. 302, 305-06, 564 A.2d 454, 456 (1989) (prohibiting landowner’s addition of second story that increased volume of premises and brought structure closer to property lines as a natural expansion of nonconforming use). ‘We have never permitted an expansion of a nonconforming use that involved more than the internal expansion of a business within a pre-existing structure,’ Grey Rocks Land Trust, 136 N.H. at 244, 614 A.2d at 1051, and we will not do so here.” Hurley v. Town of Hollis, 143 N.H. 567, 571-573 (1999).

77. YMCA Camp Belknap’s proposal as provided for in the Application provides for significantly more than the internal expansion of a business within a pre-existing structure.

78. The Application constitutes an expansion of a nonconforming use requiring YMCA Camp Belknap to obtain a special exception from the Zoning Board of Adjustment.

79. Section 1.1.4 of the Zoning Ordinance defines “Accessory Use” as “(a)ny subordinate use of premises which customarily is accepted as a use associated with, and subordinate to, the principal use of a Lot. An Accessory Use may be neither injurious nor detrimental to the neighborhood.”

80. McWhirter provided information and documentation to the Planning Board that the proposed use as provided for in the Application, including the principal use of the YMCA Camp Belknap Premises and any accessory use of the YMCA Camp Belknap Premises, was both injurious and detrimental to the neighborhood and to the McWhirter Premises.

81. Section 5.2.2 of the Zoning Ordinance provides that, “(a)ny use that may be obnoxious or injurious by reason of production or emission of odor, dust, smoke, refuse matter, fumes, noise, vibration, or similar conditions, or that is dangerous to the comfort, peace, enjoyment or health or safety of the community, or tending to its disturbance or annoyance, is prohibited.”

82. The Application fails to comply with the provisions of Section 5.2.2 of the Zoning Ordinance.

83. Section 17.8.2 of the Zoning Ordinance provides for the standards required for the granting of special exceptions.

84. YMCA Camp Belknap has failed to apply for and/or meet the standards required for the granting of a special exception.

85. Section 3.5.3 of the Zoning Ordinance provides that “(a)ll Buildings or Structures hereafter erected, reconstructed, altered, enlarged, or moved, or all future uses of premises in the Town of Tuftonboro shall be in conformity with the provisions of this Ordinance. Any Building, Structure, or land shall not be used for any manner other than is permitted in the District in which it is located.”

86. The Application fails to comply with the provisions of Section 3.5.3 of the Zoning Ordinance.

87. The Planning Board impermissibly considered the Application based on the ownership by YMCA Camp Belknap of real estate in the Town of Tuftonboro, New Hampshire other than that for which the Application was filed.

88. With respect to the air rifle range proposed in the Application, the Planning Board found, in part, that “the relocation of the air rifle range is safer”, “the air rifle range is quieter and safer”, “the proposal is much safer and an improvement than what is currently occurring”, “the proposal is a better safer option”, “the proposed air rifle range is safer than what currently exists”, and that “the impact will be significantly less than what currently exists”. However, the Planning Board failed to find, for example, that the air rifle range was quiet and/or that the air rifle range was safe and/or that the air rifle range complied with the provisions of the SPRR and/or the Zoning Ordinance.

89. The Planning Board, at the September 3, 2020 Public Hearing, cited the fact that “the Town’s Code Officer hasn’t had any issues with the uses and no one has challenged his decisions”. See September 3, 2020 Minutes of the Planning Board at p. 3.

90. In fact, the September 3, 2020 Minutes of the Planning Board indicate that “Kate Nesbit agreed with Mr. Qua and Mr. Young and noted that no one has questioned the Code Officer’s decisions in the past.” See Id.

91. The discussions of the Planning Board and the findings and rulings of the Planning Board approving the Application impermissibly rely on evidence that is irrelevant, not properly before the Planning Board and for which McWhirter was unable to adequately provide a response.

92. The Notice of Decision issued by the Planning Board included as a condition of approval that “(t)he applicant shall submit Police Department signoff or third party range official verification on the air rifle range safety and procedure”. See September 3, 2020 Notice of Decision at p. 1.

93. Such condition of approval is a required finding of the Planning Board to support approval of the Application and, as such, the condition of approval involving the “Police Department” or the “third party range official verification on the air rifle range safety and procedure” is an impermissible transfer of power and authority by the Planning Board and, further, highlights the failure and/or refusal of the Planning Board to make required findings and rulings to support the Planning Board Decision.

94. The Notice of Decision of the Planning Board includes as a condition of approval that “(t)he applicant shall submit Fire Department sign off”. See September 3, 2020 Notice of Decision at p. 1.

95. Such condition of approval is a required finding of the Planning Board to support approval of the Application and, as such, the condition of approval involving the “Fire Department sign off” is an impermissible transfer of power and authority by the Planning Board and, further, highlights the failure and/or refusal of the Planning Board to make required findings and rulings to support the Planning Board Decision.

96. The Notice of Decision of the Planning Board requires as a condition of approval that “(t)he plan shall be revised to reflect the boundary line adjustment between Tax Map 39-1-12 and the subject parcel, Tax Map 39-1-13, if the boundary line adjustment has been recorded.” See September 3, 2020 Notice of Decision at p. 1.

97. The boundary line adjustment referred to by the Planning Board in the September 3, 2020 Notice of Decision is on record in the Carroll County (New Hampshire) Registry of Deeds as of September 3 and 25, 2019. See Quitclaim Deed from Young Men’s Christian Association Camp Belknap to Donald J. McWhirter dated April 10, 2019 and recorded September 3, 2019 in the Carroll County (New Hampshire) Registry of Deeds at Book 3461, Page 282 and plan entitled “Boundary Line Adjustment and Right-of-Way 10 North Chase Point Road Tuftonboro Carroll County, NH for Donald McWhirter” dated March 2019 and recorded September 25, 2019 in the Carroll County (New Hampshire) Registry of Deeds at Plan Book 242, Page 1.

98. Section 4.3 of the SPRR requires that Site Plans show existing and proposed features including, but not limited to, deed references and the boundary lines of the area included in the site, including angles or bearings of the lines, dimensions and the lot area.

99. Effective with the date of the filing of the Application and the date of the Planning Board Decision, the Site Plan failed to include the deed references or the boundary lines of the area included in the site, including angles or bearings of lines dimensions and the lot area.

100. The failure of the Planning Board to have before it the deed references and the boundary lines of the area included in the site, including angles or bearings of the lines, dimensions and the lot area and the action of the Planning Board in approving the Application without the information required by Section 4.3 of the SPRR is in violation of the SPRR.

101. Based on the foregoing, the Planning Board Decision is illegal or unreasonable in that it fails to comply with the provisions of the SPRR, the Zoning Ordinance and case law and fails to comply with McWhirter’s administrative, statutory and due process rights.

102. For each of the foregoing reasons, the Planning Board Decision is illegal or unreasonable and must be reversed.

WHEREFORE, your Petitioner, Donald J. McWhirter, respectfully prays that this Honorable Court:
A. Allow a certiorari order directed to the Tuftonboro Planning Board to review the Decision of the Tuftonboro Planning Board dated September 3, 2020;

B. Following a review of such Decision, enter a finding that such Decision is illegal or unreasonable;

C. Reverse the Decision; and

D. Order such other and further relief as may be just and equitable.

Respectfully submitted,


Dated: September ____, 2020
Donald J. McWhirter

STATE OF NEW HAMPSHIRE
COUNTY OF ____________________

Subscribed and sworn to, before me, this _____ day of September, 2020 by Donald J. McWhirter.


Justice of the Peace/Notary Public


Printed Name
My Commission Expires:

Petitioner’s counsel:

The Law Offices of Gregory D.
Wirth, P.L.L.C.



Dated: September ____, 2020 By:
Gregory D. Wirth, Esq. (NH Bar #2769)
383 Central Avenue, Suite 249
P.O. Box 2209
Dover, NH 03821-2209
603-516-2200
Email: gwirth@gwirthlaw.com