CONCORD, NH — A mosque, whose president is about to be sworn in as a new ward Concord city councilor, is suing the city to stop 30 units of new housing from being built on North Main Street.

Jonathan Chorlian and Benjamin Kelley, the developers of the Saint Peter’s Church site, as well as other properties, last year proposed redeveloping the First Congregational Church at 177 N. Main St., the former site of the Concord Coalition to End Homelessness shelter, as an apartment complex. Their first proposal included 34 one- and two-bedroom apartments with rents expected to start at $1,400 monthly. The pair agreed to purchase the building for $770,000 and planned on spending about $5 million renovating the building.

Chorlian and Kelley also accessed a 79E tax abatement via the Concord City Council for the project to save around half a million dollars in property taxes across seven years.

The developers also needed to request several variances, including approval of 34 units where only eight were allowed, buffers for parking and patios, including some within 5 feet of a lot line, access to a private yard, loading area changes, and refuse container location approvals.

During several months, including hearings, variances were initially rejected by the Zoning Board of Appeal.

After the first rejection, the developers scaled the project back to 30 units, dropping the density increase request by 50 percent, and made other changes. They returned with newly requested variances, including 49 parking spaces where 60 were required and some prior variances.

This time, the plan was approved.

IQRA Islamic Society of Greater Concord, an abutter to the church, whose president is Ali Sekou, the newly elected Ward 8 Concord city councilor, was against the plan.

After approval and being denied a re-hearing, the mosque filed a suit against the ZBA in Merrimack County Superior Court in October 2023.

In a 13-page filing, the mosque’s attorneys, Brian Shaughnessy and Brett Allard of Shaughnessy Allard PLLC, said the ZBA “acted unlawfully and unreasonably when it purported to find that it could reach the merits of the applicant’s second variance application.” The second application, they said, offered a “fairly minor change” of a reduction of four or a little more than 11 percent of the project’s units. The filing noted the project was still much larger than the allowed density.

The attorneys claimed the ZBA “discouraged the public from repeating comments” from a July 2023 hearing because “the new application is only ‘a little different’ and ‘very similar in character’ to the first application,” they wrote. Both proposals, they added, included the same number of bedrooms — 44, with “the only ‘change’ to the second application was that the applicant ‘combined four pairs of one-bedroom units’ into several other units.”

Citing Fisher v. Dover, the attorneys said when the ZBA approved the second, even though there were limited changes. The decision by the state supreme court in Fisher v. Dover states, “[w]hen a material change of circumstances affecting the merits of the application has not occurred or the application is not for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition.”

The attorneys also said the ZBA acted unlawfully when granting the variances, saying the previous charge offered “limited hours” and had “peak intensity on Sunday mornings.” Even as a homeless shelter, the attorneys wrote, the “use was similarly passive.” A 30-unit, multi-family apartment building, however, would “significantly alter this and create an intensity of use foreign to this property and area.”

The attorneys also said the ZBA “mischaracterized and misinterpreted (the) petitioner’s motion for a rehearing on the basis that it was not improper for the ZBA to determine that it could reach the merits of the applicant’s second application purely based upon its review of the applicant’s written materials and without hearing additional testimony.”

The attorneys requested the court reverse the decision of a rehearing, reverse the approval decision of the second application, send the second application back to the ZBA for reconsideration, reverse the granted variances, and pay the attorney fees, which would essentially kill the project.

Sekou confirmed the lawsuit and acknowledged receipt of an email requesting comment but did not return comment before post time.

The new units were proposed during a continuing, severe housing crisis in the city, and a lack of apartment and home inventory was a campaign issue in the November municipal election cycle. The civil case was filed on Oct. 30, the week before the Nov. 7 election, meaning voters could have found out about the lawsuit involving Sekou before the election but did not. He was campaigning on a leadership platform in community development and housing at the time. Sekou defeated the nearest of two other candidates running by around 180 votes, meaning it is unknown if publication of the lawsuit before the election would have affected the race.

Patch only learned about the lawsuit last month and obtained the documents on Tuesday.

Kelley, in a statement, said he and Chorlian were “disappointed in the Islamic Society’s decision to pursue legal action against the city of Concord challenging the approvals that were granted for our proposed redevelopment,” which offered the opportunity to reuse a historic building and add much-needed housing to downtown.

“As our approved site plan shows, our redevelopment is oriented toward Washington Street, and we are grateful that it was strongly and unanimously supported by all of our Washington Street neighbors,” he added.

Kelley said the developers and the IQRA were still discussing issues surrounding the project despite the lawsuit.

“Based on recent meetings with the Islamic Society, we are cautiously optimistic that an acceptable resolution is close,” he said.

Sekou will be sworn in as a city councilor on Thursday.

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