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Controversial Wolfeboro variance request withdrawn by applicant

State confirms that no variance is needed for "community residence"

November 18, 2010
WOLFEBORO — Within seven minutes the Wolfeboro Zoning Board of Adjustments called to order, held and adjourned its Nov. 15 meeting, a continuation of the board's sometimes contentious Nov. 1 three-hour hearing on an application for a variance to allow a residential home at 15 Eagle Trace Road in Wolfeboro to be used as a home for up to three brain-injured persons.

In those few minutes it was announced by the board's Chairman Alan Harding that the applicants, Russell and Melissa Merka, had withdrawn their variance application, and that the board therefore need take no further action on the request.

"However," Harding explained, "as a board we did want to explain to the public, based on the information that we have received and the law we've reviewed extensively with our counsel, it is the board's understanding that the proposed community residence is exempt from local zoning under the cases of Northern N.H. Mental Health Housing versus the Town of Conway and Region 10 Client Management, Inc. versus the Town of Hampstead."

The board's judgment was strengthened by a recent letter it received from the State of N.H. Department of Health and Human Services which indicated that there are already two similar facilities in Wolfeboro, confirmed that the proposed community residence had no more than three beds, and further stated the community residence is not subject to local zoning.

"The variance is therefore not necessary to allow the proposed use and the board has no authority to prevent the applicant from withdrawing the application if they wish to do so," read Harding.

He then read aloud the letter of withdrawal submitted to the board by the Merka's attorney Edwina Vanderzanden. In part the letter, dated Nov. 15, stated:

"A certified community residence for brain-injured persons is exempt under the board's reading of N.H. RSA 171-A:1. Based upon that information my client has instructed me to withdraw the application.

"…We do wish to stress, however, that separate and apart from the board's conclusion that the use is exempt, we strongly believe that my client's proposed use is a permitted use under the town's ordinance and to the extent that a variance might have been required, a grant of that variance would be mandated as a reasonable accommodation under provisions of the United States Fair Housing Act and decisions of the various U.S. trials of the appellate court applying that statute.

"…In the event that any other board or commission of the town or individual seek to interfere with the proposed use, which will commence almost immediately, we have agreed that my client will immediately resubmit its variance application and the board has agreed to act on it promptly, as permissible under the ordinance."

With that and before any public comments were heard, Harding concluded that the board had "received and accepted the withdrawal" and called for adjournment.

The conclusion of the meeting however, did not put to rest the questions and concerns brought forth by neighbors and residents of Fairway View Estates, the development that Eagle Trace Road is a part of.

The proposed rehabilitation facility, a certified community residence for up to three disabled adult individuals recovering from brain injuries and other neurological deficits and disorders, has brought about speculations and opposition.

Beyond allegations that the sale of the property may benefit relatives of Lakeview NeuroRehabilitation Center management, the supposed company seeking to buy the property, a few abutters and Wolfeboro residents have voiced concern that allowing the variance would "do great harm to Wolfeboro's zoning plan" and that only be denying the application would the "integrity of Wolfeboro's zoning ordinance" be preserved.

The original application for a variance was filed on Aug. 30 and an initial hearing was held on Sept. 20. That initial hearing was first continued until Nov. 1 and then to the meeting this past Monday, Nov. 15.

Heather Terragni can be reached at 569-3126 or hterragni@salmonpress.com

Martin Lord & Osman
Martin Lord Osman
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