Keene ZBA unanimously reverses acting zoning administrator on build-to zone interpretation

The Keene Zoning Board of Adjustment on Tuesday evening unanimously reversed an administrative determination that would have required every building or structure on a lot in the Downtown Edge District to be located inside the 0–20-foot build-to zone, a ruling that affects an appeal tied to 67 Marlborough Street.

Petitioner Jared Goodell argued the city’s Land Development Code (LDC) requires that a single structure’s façade locate in the build-to zone, and that the acting zoning administrator’s written interpretation improperly read “a” to mean “any” and, in effect, rewrote the code. “Only a structure must locate in the build to zone,” Goodell said, urging the board to withdraw the written determination and hold that additional structures may locate outside the build-to zone once an initial façade compliance structure is provided.

Mary Brunner, senior planner and acting zoning administrator, told the board she applies the LDC’s applicability rules to every proposed new building or structure, and that, in her reading, the build-to definitions and the code’s overarching applicability language require all new structures on a lot to meet the district’s dimensional requirements. “For every new use, building, structure or lot, either I or Mr. Clements as the deputy zoning administrator will review the proposal to make sure that all of the requirements for that particular zoning district are met,” Brunner said. She cited the LDC’s definitions for build-to zone and build-to percentage and noted there were no listed exemptions for principal structures in the downtown edge district.

Board deliberations focused on whether the indefinite article “a” in the build-to zone definition should be read as singular (meaning one structure) or as equivalent to “any” (potentially meaning all structures). Members reviewed the LDC text and discussed grammar references cited by both sides, including examples from Merriam-Webster. Several board members said the context of the build-to definition and the way the LDC uses “a” in similar provisions suggested a singular reading; others acknowledged the code contains inconsistent wording that could reasonably be read at least two ways.

After discussion the board member who moved the motion to reverse the administrative decision (motion text: “Reverse administrative decision ZBA2025-03 that all building structures on a lot in the Downtown Edge District are subject to the build-to zone dimensional requirement per Article 4.40.1 of the zoning regulations”) had the motion seconded and the motion passed unanimously. The chair announced the vote as unanimous.

During the hearing staff recited the Downtown Edge dimensional requirements the board considered relevant: minimum lot size 10,000 square feet, minimum lot width 50 feet, front build-to zone 0 to 20 feet with a minimum front build-to percentage of 60%, minimum interior side setback 0 feet, minimum rear setback 25 feet (adjacent to residential), maximum height 40 feet/3 stories, minimum ground-floor height 12 feet, minimum ground-floor transparency 30%, maximum blank wall 30 feet, and maximum building entry threshold 18 inches above the sidewalk. The petitioner emphasized the LDC’s separate references to “setback” definitions that use different words in different sections and argued the code drafter’s choice of words should be respected.

The board did not adopt immediate code amendments during the meeting. Staff later noted the city is developing a system to track zoning board decisions and said planning staff will continue work on related items in coordination with planning reviews and the city’s ongoing master-plan update efforts. No appeals, legal deadlines, or enforcement actions were announced at the meeting.

The ZBA hearing record shows the appeal arose after the acting zoning administrator issued a written determination on April 14 following a written request from the petitioner filed on April 8; the appeal was docketed as ZBA2025-03 and considered at this regular meeting.