Charlestown Zoning Board seeks advice on effort to nix Selectboard-issued permits

By PATRICK O’GRADY

Valley News Correspondent

Published: 01-13-2023 5:12 PM

CHARLESTOWN — The town Zoning Board of Adjustment is seeking guidance from the town’s attorney after outcry from a group of residents raised questions about the authority to rescind certain building permits.

The residents are hoping to nix two building permits they claim were issued in contrivance of state law and also violate a conservation easement on a historic farm.

At a meeting on Thursday, board members heard conflicting legal interpretations. Liz Emerson, the town’s planning and zoning administrator, said state law limits the Zoning Board’s oversight to building permits issued by the town building inspector. She said members do not have the jurisdiction to overturn a Selectboard decision allowing construction of a home on a Class VI road.

“The Building Code Board of Appeals does not have the authority to overturn the Selectboard’s decision,” Emerson said. “That appeal is to Superior Court.”

According to Selectboard minutes from October, the board voted, 3-2, in two separate votes, to approve a home and garage/barn on the property.

“The Selectboard, only, approved building on that lot,” she said.

However, an attorney who is a member of the Perry Mountain Community Group, which brought the permit appeal, contested Emerson’s legal interpretation, as did a landowner with property that abuts the 40-acre parcel in the appeal.

“The ZBA has the authority to reverse the Board of Selectmen’s approval of the permits,” said Ben Martell, of Unity. “The legal reasoning for that is because the building permits are on a Class VI road.”

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In his written statement, Martell said RSA 674:33 “does not limit the independence of the ZBA to decide appeals of decisions made by the Charlestown Selectboard regarding building permits on Class VI roads.”

“New Hampshire case law clearly shows the appeal of that decision is to the ZBA,” Martell said. “You are an independent decision maker. You received an opinion by your staff member but you have to reach your own conclusion.”

With conflicting opinions, the board voted, 4-0, to continue the hearing until Jan. 26 and in the meantime, get an opinion in writing from the town attorney about what it is allowed to decide.

“If we are not comfortable with our scope, we should delay,” Zoning Board Chairman Andy Jellie said.

In his submission to the Zoning Board, Martell contended state law limits approval of building permits unless access is on a Class V road or better, and that state law limitations “supersede” less stringent local laws.

Abutting landowner Kirk Frost, who spoke via Zoom, also objected to Emerson’s interpretation of state law.

“You have full authority here,” Frost said. “Don’t trust what other folks are telling you what you can and can’t do.”

Frost said the town’s attorney told the community group’s attorney that the permit applications needed to be withdrawn because there were deficiencies and Charlestown did not follow the process.

The community group, through its attorney Jason Reimers, appealed the permits, claiming the town did not follow its building code or state law when the permits for landowner Roger Clarke were approved.

Emerson said Clarke has submitted his plans and after the boundaries of the parcel are verified, they will know the location of the house and the design of septic system will be completed.

In a memorandum handed to the Zoning Board before the meeting, Emerson said the proposed buildings “appear to be in compliance with all local land use regulations” in that the applicant has a driveway permit and is in compliance with watershed zone regulations.

One issue at the heart of the controversy was not addressed directly at the Zoning Board meeting. The appellants have said allowing Clarke to widen and improve the half-mile, Class VI portion of Borough Road to reach his property would violate the boundaries of the Sky Farm conservation easement that borders most of the road on either side.

Sky Farm owner Bonnie Remick told the Zoning Board that the Selectboard failed in its role as grantee to uphold the conditions of the easement and said if the road is widened, there will be “damage to conservation easement land.”

Clarke, who also spoke via Zoom, did not address the specifics of the appeal. He said the Class VI road has been a “highway since the 1700s” and then questioned whether the conserved property is open to the public for recreational purposes, as it is supposed to be under the conservation easement.

Patrick O’Grady can be reached at pogclmt@gmail.com.

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