Alton American Legion's lawyer claims site plan request is not validBy BEA LEWIS
Union Leader Correspondent
June 17. 2018 9:36PM
ALTON — American Legion Post No. 72 has retained a lawyer to fight the town’s classification of the post as a commercial function facility.
In a three-page letter dated June 13 addressed to the planning and zoning secretary, Attorney Charles Douglas III of Concord, asserts that state law specifically says that a zoning ordinance should not apply to existing structures or to the existing use of a property, unless such purpose or use is substantially different than the use to which it was put before amendment of the ordinance.
“Accordingly, I would ask that this matter be terminated with no further action by the town. This would be in the broader interest of the town because Post 72 is part of the fabric of Alton and its large veterans population,” Douglas wrote.
The attorney’s hiring was sparked by an administrative decision by Code Enforcement Officer John Dever III classifying the Legion’s 164 Wolfeboro Highway property as a commercial function facility, citing the longstanding practice of the lodge being rented for celebrations of life and other events.
Dever has directed the American Legion to submit a site plan review application to the planning board and says the organization will then need to get a special exception from the zoning board to operate a commercial function facility.
Last month, more than 50 American Legion members and their supporters packed a meeting of the Alton Board of Selectmen to voice their concerns about the town’s actions. During that meeting, Jim Adams who heads the NH Veterans Council was direct in his remarks.
“This type of action would be precedent setting and we would suggest that they move all the way up to their national office,” Adams said. “This is the wrong path for the town to go down.”
In detailing the history of the 164 Wolfeboro Highway property, Douglas notes it previously served as a restaurant which complied with the zoning ordinance in effect at the time. The deed was transferred to the Claude R. Batchelder Post of the American Legion on March 9, 2001.
At that time, one of the permitted uses of the property was as a restaurant or a private club or lodge. The zoning ordinance defined the latter as a “group of people organized for a common purpose to pursue common goals, interests or activities and usually characterized by certain membership qualifications, payment of fees and dues, regular meetings and a constitution and bylaws.”
According to Douglas’ letter, the post meets that definition and has been in continuous use of its property since 2001 for its charitable purpose as a member-based organization.
The American Legion itself is a tax-exempt organization for federal income tax purposes.
“The Alton Legion, like most posts, offers food and drink as well as activities such as pig roasts, raffle, Queen of Hearts, 50/50 pools, etc. as well entertainment for members and guests to raise money for overhead and charity,” Douglas wrote.
“Because the restaurant or lodge were both permitted uses in the district when the Post bought the property in 2001, the permitted use was merely transmuted from restaurant to lodge or private club. “Whether or not a site plan review should have occurred 17 years ago, that horse has long since left the barn and there is no record either at the Legion or at the town of whether or not a site plan review was ever done,” Douglas continued.
The attorney also cites the legal concept of “latches” which is the equitable barring of municipal enforcement of rules or ordinances years after they should have been enforced.
If it is the position of the town that the American Legion Post has become a commercial function facility and needs a site plan, Douglas said, that event would have occurred in March 2012, when the zoning amendment was enacted.
“It has been more than six years since that occurred and no enforcement action could now be timely brought even if the Legion had ceased to operate as a membership organization (which it has not ceased being) and become a commercial facility,” the letter written by Douglas asserts.
The planning board is scheduled to meet on June 19 at Town Hall at 6 p.m.