Londonderry-based developer DHB Homes has tried thrice in the past two decades to build housing at the intersection of Pembroke Road and Broadway Street.
On Tuesday, the company brought its case before the state’s Housing Appeals Board, challenging the Pembroke Zoning Board of Adjustment’s choice to reject its latest project proposal in the spring.
The project, called Riverside at Pembroke, would build 100 two-bedroom homes for people over 55 on the 125 acres of land owned by Robert Meissner of DHB Homes. Meissner’s team requested a zoning ordinance to structure the development as a cluster of homes, rather than a traditional subdivision. The project application states this would provide “a more suitable alternative” and offer “additional environmental benefits, such as reducing the total area of land disturbance and minimizing impacts to the wetlands.”
The Zoning Board denied the cluster variance because members did not feel there was proof of hardship.
At the hearing on Tuesday, Meissner’s lawyer, Eli Leino of Bernstein Shur Law, made the argument that the board had “misapplied the law” in its rejection.
The hardship component comes into play when a property’s “special conditions” mean that the original ordinance, if enforced, would cause hardship. Leino said Meissner’s land is special in that it’s a large undeveloped parcel in a downtown corridor, has “multiple frontage edges,” includes wetlands and is in an aquifer district.
The project could be developed as 115 single-family homes in a conventional subdivision, but that would take up most of the property, Leino said. It would “cause more land disturbance, additional wetland crossings, more traffic and greater town roadway burdens,” he said.
The cluster variance would also allow for over 28 acres to be put in a conservation easement, he said.
“It’s an improvement to the public purpose,” he said of the clustering.
However, the town’s lawyer, Laura Spector-Morgan of Mitchell Municipal Group, said that Supreme Court precedent outlines that just because a plan seems well-suited for a property doesn’t mean that it qualifies as hardship.
“We’re also not comparing plans here,” she said. “This proposed cluster subdivision may very well be a better plan. That doesn’t mean there is unnecessary hardship to justify a variance.”
In 2021, Pembroke repealed its cluster ordinance, according to Spector-Morgan. This means that without a variance, projects cannot build in cluster formation anymore.
“They did that because they were having trouble with cluster developments coming in and no one knew what size the limited common area had to be,” Spector-Morgan said. “People were concerned about private roads. People were concerned about run-off.”
Overall, she argued that the special conditions were not met and hardship hadn’t been proven.
“Even if a conventional subdivision is not the best option for this property, that still doesn’t justify the grant of a variance here because that’s not a special condition of the property,” she said. “That’s a choice of the developer. It’s a conclusion of the developer that this is a better plan. But that is the personal circumstances of the owner, not the land.”
The project has taken different forms over time before morphing into its current iteration of a cluster development of a 55+ community of condominiums.
The first attempt, back in the early 2000s, was denied for being “incomplete.” When the company appealed to the Supreme Court, the town won. Then, in 2016, DHB Homes submitted a second proposal, which it ultimately withdrew because the town didn’t have the sewer capacity for the project.
The Housing Appeals Board will release its decision within 60 days of the hearing.
