By Nicholas Brown
Staff Writer

Hooksett residents overwhelmingly voted in support of a growth management ordinance at the May elections. Now a private developer has filed a lawsuit against the town, declaring the ordinance unconstitutional. Town planning officials, meanwhile, aren't surprised.

Controlled Asset Investment Group filed the suit with the Merrimack County Superior Court in July, contending that Hooksett's growth management ordinance doesn't comply with RSA 674:22, which requires the ordinance reflect both community and regional development needs.

The suit also declares the ordinance as "discriminatory and based upon arbitrary and unsupported facts," according to the docket.

The lawsuit stems from a June zoning board meeting during which Controlled Asset requested a variance from the ordinance in order to build a cluster of 20 single-family housing units spanning 37 acres off Mammoth Road. Zoning board members unanimously denied the request, and board members suggested that the proposal went against the spirit of the growth management ordinance.

Under the ordinance, no more than five building permits can be issued to any one party per year, and total number of building permits issued per year is limited to 2 percent of the current year's total number of housing units. Thus this year, the annual limitation is 91 units. Over four years previous to the ordinance, the town issued an average of 142 residential building annually.

The ordinance made May's ballot by petition - one led by Michael Sorel who collected 233 signatures - and was not recommended by the planning board at election time.

Now town officials must decide whether to defend the ordinance, and must supply a response to the suit before Oct. 6.

"The town council is going to have to make a decision as to whether they want the attorneys to defend this case," said Dick Marshall, Hooksett Planning Board chairman.

Town Planner Charles Watson said he's already begun thinking about a defense.

"The voters voted this ordinance in," he said. "It is a town ordinance."

Hooksett Town Administrator David Jodoin, who sent an email to each of the town councilors informing them of the suit, said it's too early to tell what the town's course of action will be.

"Everything is really up in the air right now," he said. "The council hasn't had a chance to sit down, as a body, and consider this."

Hooksett is one of about 35 New Hampshire municipalities that employs a permanent residential growth ordinance. The current 2 percent limitation was derived by averaging the limitations found in the growth management ordinances used by Pembroke, Bow and Litchfield.

Though planning officials have expressed some skepticism as to the ability of the current ordinance to withstand the scrutiny of the law, some say the town may have to consider a well-researched ordinance in the future.

"The planning board now has the knowledge that a good majority of the voters want a growth ordinance," said Watson, adding, "the research I've done so far indicates that we have been growing at a faster rate than the communities around us."

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