Council Denies Motion for Rehearing on Mohawk Drive Re-zoning

The Town Council voted 5-0 to deny a re-hearing of its decision to re-zone the properties at 6 and 8 Mohawk Drive.

The Council re-zoned the properties, on which Rivierview owner Cornelius de Jong plans to develop gardens and an upscale wine bistro, from Commercial-IV to C-I following an April 6 public hearing.

Attorneys for Kendallwood Townhouse Condominium Association, the organization of unit owners representing the interests of the Kendallwood Townhouse Condominium, an abutter to the re-zoned properties, argued the zoning change is unreasonable and unlawful.

In a letter to the Council dated April 29, Attorney Thomas Aylesworth argues, “no sound reason exists for the zoning change.

“Rivierview could develop this use under a C-IV zone by applying for and obtaining a Conditional Use Permit from the Londonderry Planning Board. It is unreasonable to allow Rivierview to develop the subject property as a C-I zone because the needs of and impacts to the neighborhood were not considered,” he wrote.

Ayelsworth argues the zoning change relieves Rivierview of the 30-foot height limitation under a C-IV zone, allowing de Jong, by right, to construct a building up to 50 feet tall.

“Evidence was presented that the additional building height allowed by the zoning change will substantially interfere with the Condominium residents’ privacy interests, as (bistro) patrons will have a line of sight directly into the second-story bedroom windows of certain Condominium units,” he wrote.

Formal plans for the bistro have yet to be considered by the Zoning and Planning Boards.

De Jong told the Council at the public hearing that the property must be re-zoned to accommodate the height of the bistro’s art gallery, noting the office building already located on the site was developed under C-I zoning.

“To actualize the full use of the concept with the gallery and the atrium is only possible in C-I. If zoned C-IV, the properties cannot accommodate the atrium concept, the gallery or the office space,” de Jong said. “I want to reiterate, this is not a restaurant. It’s a quiet, restful wine house.”

But Ayelsworth argues in his letter the zoning change is unlawful “because it is spot zoning,” saying there was no inquiry or discussion by the Council concerning a public need, compelling reason, or whether the change is in accordance with a comprehensive plan.

“Members of the Town Council indicated that they did not believe that changing the subject property back to its prior C-I zone designation could constitute spot zoning, and that the Condominium unit owners had no reasonable expectation of a C-IV zone because many of them purchased their units when the subject property was designated a C-I zone,” he wrote. “But the law does not recognize any such exceptions to spot zoning. The prior zoning of the subject property is irrelevant in the absence of a finding of a public need, compelling reason and that the change is in accordance with a comprehensive plan.”

De Jong has maintained he is willing to work with abutters to address their concerns, but told the Council at the public hearing in April “it has been an arduous process.”

De Jong said he received an email from Aylesworth saying Harvard Management is not willing to negotiate, but is interested in over $50,000 for renovations to their building.

“This has been a very aggressive stand against us,” he said. “Everything on this building so far has been me showing up saying, ‘let’s fix what has been a failed lot.’ We’re spending virtually thousands of dollars for gardens unheard of for a commercial property. It’s incredibly disheartening to find myself in these circumstances where I have stood up and said let’s do something nice and we have gotten this incredibly negative response,” he said.

Town Attorney Mike Ramsdell informed the Council that he does not agree that its decision was unlawful or unreasonable by spot zoning, Chairman John Farrell said.

Councilor Joe Green said although he thinks it would be possible for Rivierview to develop the lot as proposed without the zoning change, he also thinks the Council “acted according to the law” when it unanimously voted to re-zone the Mohawk Drive properties, and said its decision should stand.

Councilor Tom Dolan agreed that “a re-hearing would be without good cause.”

Newsletter Updates

Enter your email address below to subscribe to our newsletter