To the editor:
As an Intervale resident concerned about the proposed redevelopment of the Intervale Motel property, I have learned that local planning boards have considerable latitude to reject proposals they believe compromise the safety and well-being of residents.
I also learned about a 1978 U.S. Supreme Court decision known as Penn Central that is relevant to the Intervale Motel situation. It involves whether a party who purchased a piece of land with the intent of redeveloping it can realistically use the land as it was previously used. If they can, courts have said their property rights have been respected even if they can’t use the land as they intended to when they purchased it.
I was also curious about how state courts approach the general issue of land use regulation. A 2011 article by Ronald Rosenberg concluded that “landowners have not been successful at using the state courts to limit restrictive regulation. In fact, the government overwhelmingly wins litigation.”
At a March planning board meeting, the attorney representing Viewpoint, the developer behind the proposed hotel and restaurant, threatened litigation. He said the board could not impose a 50-foot buffer because it had not done so in other, supposedly comparable, redevelopment plans.
In other words, he had an apples-to-apples comparison he wanted to make, arguing that the board had to treat his client’s plans like all the other apples that had come before it.
With his client proposing a 105-unit hotel with an attached restaurant, what was his comparison? The Taco Bell on Route 16. A modestly sized restaurant that does not offer overnight accommodations on any scale, much less 100+ rooms’ worth. The Taco Bell is also not located at an intersection with a D/F safety rating, a dubious distinction that Intervale Cross Road/Route 16 shares with East Conway Road/Route 302, or on a stretch of Route 16 that saw three fatal accidents from 2009-20.
Nonetheless, the attorney warned that if Viewpoint’s plans did not receive the same treatment as Taco Bell’s plans had, the planning board would be guilty of unfair and illegal treatment.
If the planning board rejects Viewpoint’s plan at Thursday’s meeting, and Viewpoint is determined to litigate, it’s going to need to do better than Taco Bell. It’s going to need an actual apples-to-apples comparison.
The key question should be: What did the planning board do the last time a developer submitted a hotel plan that added a restaurant and entailed a 500 percent increase in room capacity, and was adjacent to a residential area and situated at an intersection with a D/F safety rating?
An equally important question is: Has this ever happened before? If not, there’s no apples-to-apples comparison to be made and Viewpoint’s prospects for successful litigation ought to disappear faster than a Gordita put in front a hungry teenager.
“The Planning Board in New Hampshire: A Guide for Local Officials” specifies four circumstances where a board may reject a proposed site plan. One stood out to me: “The proposal cannot adequately address the legitimate concerns raised at the public hearing, such as drainage, traffic, or other health or safety issues.”
If that doesn’t describe the situation we’re facing with the Viewpoint project in Intervale, I don’t know what does.