Bedford Zoning Board upholds town staff's measurement rule in dispute over 16 Suzanne Drive retaining wall

John Morin, chair of the Town of Bedford Zoning Board of Adjustment, presided as the board heard an administrative appeal on March 17 over the permitting and measurement of retaining walls at 16 Suzanne Drive. After testimony and public comment, the board voted to uphold the planning director and building official's interpretation and denied the Millers' appeal.

Attorney John Bisson, who represented applicants Joshua and Kathleen Miller and owners Kevin and Mary Brown, told the board the April building permit "was issued" and that later staff interpretations should not be applied retroactively. Bisson urged the board to restore the permit status and allow the Millers to complete the wall as permitted.

The matter drew sharp attention to how the town measures retaining-wall height. Contractor Tom Gardocki, owner of New Era Excavation, said his industry practice and the engineered plans he submitted measure the exposed face of the wall from finished grade to the top. "It's been always been counted as exposed wall height for the permit process," Gardocki said, describing reliance on engineered drawings and prior town practice.

Planning Director Becky Hebert and Building Code Official Matt Lavoie provided the town's account. Hebert said staff discovered the wall extended into the setback and that the building department later revoked the permit and issued a stop-work order after on-site review and complaints. Hebert described the wall as "12 feet as measured from the footing to the top of the wall" as it was shown in the initial permit materials and said the town's zoning interpretation measures height from the bottom of the footing consistent with building-code guidance.

Lavoie cited the state residential code (IRC R404.4) and standard building-permit practice in explaining that the proper measurement for enforcement includes the footing. He told the board his office routinely reviews engineered plans and, where necessary, asks applicants for revised plans or a variance when siting or height would place a structure in the setback.

Multiple neighbors, including Ed Wolf of 10 Suzanne Drive, urged the board to uphold town code, citing safety, sight-line and property-value concerns. "The height of the wall creates a very serious safety issue," Wolf told the board. The town's public works director, Bridal de Fosas, clarified that DPW's limited review focused on slope-easement impacts and did not represent approval of the design.

The board recessed for nonpublic deliberation and returned to public session to act. A board member moved to uphold the building inspector and planning director's interpretation that retaining-wall height should be measured from the footing, consistent with the IRC; the transcript records the chair stating, "The motion is 2 5 0." The board announced that the applicants' appeal was denied and that the staff interpretation would stand.

The decision leaves the Millers facing the town's interpretation that the wall, as constructed and located, requires compliance measures (a variance, revised permit or other remedy) if they wish to keep it in its present location. The board noted that parties have 30 days to request rehearing under RSA 677:3. The ZBA adjourned after completing the item.

Authorities referenced at the hearing included the Town of Bedford zoning ordinance (measurement of structures), the state residential building code (IRC R404.4) and RSA 677:3 on rehearing of board decisions.

What happens next: the Millers may seek a rehearing within 30 days or pursue other avenues (a variance or legal review) to address the town's revocation and the zoning interpretation. The town advised that corrected plans, variances or enforcement steps remain options depending on how the applicants proceed.