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ZBA overturns building inspector, allows Rawlings property work to continue
Summary
The Wolfeboro Zoning Board of Adjustment voted to overturn the building inspector’s determination that the Rollinsford/Lerner Street property was an abandoned nonconforming use, allowing the owner to continue renovation efforts; the decision can be appealed within 30 days.
The Wolfeboro Zoning Board of Adjustment on June 2 voted to overturn the building inspector’s determination that the property at 1205 Lerner Street (tax map 218-112) was an abandoned nonconforming use under section 175-43(c) of the town ordinance, permitting the owner to continue work on the building.
The vote reversed an administrative decision that had concluded the building’s nonconforming use had been discontinued. Chair Suzanne Ryan opened the continued public hearing for Alton Rawlings Ford LLC and heard testimony from Bob Flannery, a principal of the LLC, and from board members debating whether the ordinance’s abandonment language applies to use or to structure.
The dispute centered on whether the town ordinance’s abandonment clause — cited in the building inspector’s February 25 decision — refers to a lapse in “use” or to a structural abandonment. A board member cited case law distinctions including Lawler and McKenzie as part of the legal background the board considered. Shauna Sanders, interim planner and executive director of the Lakes Region Planning Commission, reviewed submitted building-permit applications and file materials for the board.
Bob Flannery told the board, “We’ve done odds and ends. We painted the building at one point… Maybe 02/2019, maybe.” He also said some interior demolition and exterior maintenance had been done “in preparation of getting a building permit.” The board noted there were permit applications in the file but no recorded town-issued building permits for the recent work.
Board members were split over whether the property owner had shown sufficient, continuous efforts to preserve the nonconforming use. One member said, “We have no evidence that says that they have made a good faith effort in… continuing remodeling that building.” Another member said COVID disruptions and evidence of some work, including tree removal, suggested ongoing intent to renovate and opposed the inspector’s finding of abandonment.
After debate, a motion to uphold the building inspector’s interpretation failed. The board then voted to overturn the administrative determination that the building was abandoned and to permit the owner to continue work on the property. The board noted the decision can be appealed within 30 days.
The record shows the board’s deliberations focused on (1) the textual difference between abandonment of a use versus abandonment of a structure in section 175-43(c), (2) the significance of submitted but unapproved permit applications, and (3) whether evidence of intermittent maintenance and applicant intent satisfied the higher standard courts have required in similar cases. The board did not adopt any new conditions tied to the decision and did not specify additional documentation the owner must file before proceeding.
Because the action overturns an administrative determination rather than adopting a new permit, the board’s decision restores the owner’s ability to pursue building permits and related approvals; the town noted the ruling can be appealed to superior court within the statutory 30-day window.
