Board of Selectmen Meeting, August 21, 2023
Ambiguities of old roads. Town Hall rodent invasion. Ongoing questions about the termination of the Fire Chief.
Ambiguities on Old Roads
A large amount of the meeting was spent with a landowner who has appeared before the board in several previous meetings this year, accompanied by his surveyor, seeking clarification from the board about roads that go over his property. Each time the landowner has met with the board the board has been unable to resolve the issue, feeling the need for additional information and clarification. This time the board explored the issue in more depth. It remained unable to resolve the issue.
The issue is about some of the town’s old roads that cross the landowner’s property. Some date back to the early 1800s. None are more recent than the early 1960s. Some have been relocated from their original locations. All were either implicitly approved via the town’s long-ago subdivision and building permit system - before the town had official standards and approval processes for roads - or the roads were built and used by the public before the town had any sort of approval process for roads, subdivisions, or buildings.
The landowner wishes to carve out from his property some buildable lots for homes for his adult children. Standing in the way of this are ambiguities about these old roads. The fundamental issues in the situation are:
Four named roads are at issue. From the state highway, Dolloff Dam Road then connects to Channel Street, which then connects to Lamprey Drive and Indian Run. Dolloff Dam Road between the state highway and almost to Channel Street goes over several properties not owned by the landowner. In all cases the tax maps say the landowners own the land under these roads. The tax card for the property says that a right of way goes through it. This means that the town has an easement.
There’s little or no documentation for an easement for these roads. The documentation is that either the road has been in existence since before the mid-1900s and was never subject to an approval process, or the road was implicitly approved as part of the original subdivision and building permit processes.
The location of the actual roadbeds (i.e., the traveled surface of the road) does not match the location of the roads according to the tax map. The tax map locations are based on either what the town approved for the roads in the distant past, or where the town understood the roads to be when the tax maps were first created, or the locations may simply be errors in how the maps were created, as when the maps were created there was not the interest in the level of precision now desired. The roadbed frequently deviates greatly from being in the middle of the right-of-way shown on the tax map, and sometimes the roadbed goes outside the right-of-way.
The width of the existing right of way and of the existing roadbeds do not meet current standards for new subdivisions.
The construction of the roads does not meet current standards for new subdivisions.
A “subdivision” is defined as the creation of three or more lots intended to be built upon. The creation of one or two buildable lots does not require the creation to meet the standards of a subdivision.
The lots the landowner wishes to create would all have direct access to an existing road. No new roads are being proposed.
The roads were officially accepted at town meeting. Prior to that they were the subject of a lawsuit brought against the town subsequent to the board’s decision that the town would stop maintaining the roads - which the town had been doing since at least the early 1960s - on the grounds that the town was illegally claiming that public roads were private roads in order to illegally abandon them. The town meeting vote settled the case by rejecting the board’s claim that the roads were private.
The landowner wishes to obtain clarification from the town about the location of the right-of-way easement so that they may create a small number of buildable lots. The landowner also wants assurance from the town that they will not be subject to having to improve the construction of the roads in order to create or build on the lots. If not that, then the landowner wants specific guidance on what changes would need to be made in the roads to get the building permits approved, assurance that making these changes would not cause the roads to become private roads, and that the town would continue to maintain these roads after the enhancements. The landowner is willing to continue to own the land the road easement goes over.
The original plan for the road says the right of way is “two rods.” A rod is an archaic unit of measure equal to 16.5 feet. (Yes, the roads are that old). The current town standard for new subdivisions that would accommodate the number of existing homes served by these roads is for a 50-foot wide right of way, subject to exceptions, but in no case less than 36 feet, and for a roadbed no less than 18 feet wide. In many places, the existing roadbed is narrower than 18 feet.
If the landowner must improve the roads to get building permits, is the landowner responsible for improving sections of road that do not go over their land? And if those sections of road must be improved, what can be done in the existing undocumented or poorly documented easements, as these also do not match the location of the physical roadbed?
Previously the board had requested from the town’s attorney, Upton & Hatfield, advice on how to handle the matter. The board has a document from the attorney addressing that question, but the attorney will not allow the contents of the document to be made public.
Issues the board discussed:
Does the town need to buy the land? Did the warrant article take the land without compensation? Is the road an easement or does the town actually already own the land? Is it legal to take the land without compensation? If these roads are easements, they are not deeded easements. There is no record of how they became easements. Does the road owner have the right to close off these roads? Landowners who have public roads going over their property are taxed for the land. Is that fair? Is the land that a road goes over to be included as part of the lot size?
Did the town’s acceptance of the roads as is where is mean where the maps say the roads are or where the physical roadbeds actually are?
Many other old roads in town are similarly poorly documented and constructed. What precedent will the board be establishing with a decision here?
As with each of the several prior times this landowner has met with the board, the board concluded that it is too confused about the issue to make a decision. In this meeting the board concluded that it was even more confused than it was before.
[Commentary: As the board has reviewed this issue several times and now, even with advice from the town attorney - advice the attorney is withholding from the citizens of the town - the board says they are confused and do not know how to proceed, I shall offer a solution for their consideration.
The key issue here is that long-ago decisions about roads were not made like they are made now, nor were these decisions made to the standards we have now, most particularly the documentation that we now require. The foundation for a solution to the issue is for the board to accept the fact that their now long-dead predecessors made decisions using criteria not now currently accepted and they documented their decisions in ways that are now considered woefully insufficient.
Once this fact is accepted, the key to the solution is to correct the documentation on the basis of its best reconstruction of the intent of the board’s predecessors. This reconstruction should be based on the physical facts of the roads’ current location as being implicitly accepted by their predecessors, and the criteria the board believes its predecessors used at the time. In addition to this, it must be accepted as a fact that town meeting accepted the roadbeds as is where is. The board then needs to redraw the right-of-ways on the basis of the actual roadbeds and the right-of-way standards imposed at the time the roads were created, i.e., two rods wide.
The result will be a draft resolution. Based on this draft, the board and the landowner may by mutual agreement make adjustments and relocate the existing roadbed, with the objective of achieving a mutually agreed upon documentation for the reconstruction of past decisions.
Current standards for the creation of new buildable lots require a two-acre minimum. The land in question is 53.7 acres. In theory that would allow for 26 lots; however, additional roads would likely need to be constructed to make that many lots. If no new roads may be created, this substantially limits the number of buildable lots that may be created. (N.b., the small lots on the map shown in this article are mostly quarter to third of an acre lots. A currently buildable lot must be 6 to 10 times the size of these existing small lots.) As the landowner owns the land under the easement, this land should count towards the buildable lot.
The board should accept the fact that this allows the creation of several buildable lots on a road that does not meet current standards for new subdivisions. The board’s predecessor had no qualms about creating dozens of buildable lots on these roads. These additional lots are not inconsistent with the decisions of the board’s predecessors.
The landowner should accept the fact that other than a few new lots with direct access to the existing roads, creating a subdivision of many lots under existing standards via these access roads cannot be done because there’s no way to add a new road to them because the existing roads cannot be further improved - at least not without the cooperation of several other existing landowners or some act of eminent domain.
If the board would like to further constrain the creation of lots, the board could attempt to buy all or some of the right-of-ways. Doing so would reduce the possible number of two-acre lots. The board could also negotiate with the landowner to create conservation easements to restrict building. The board could also negotiate with the landowner to configure the new lots in such a way as to make it difficult to develop additional lots.]
Ongoing Questions About the Termination of the Fire Chief
A citizen asked the board many questions about the board’s statement about the termination of the Fire Chief - a termination that is being challenged in Rockingham Superior Court. (The court is specifically empowered to overturn dismissals of fire chiefs). Some of the questions and answers were as follows.
Citizen: Did the investigator work for the attorney and not the town?
Board: Yes
C: The town’s attorney is not impartial because their job is to protect the town. How could the attorney then have chosen an impartial investigator?
B: Impartiality is about the investigator, not the person hiring the investigator.
C: The investigator’s report says she had the board’s non-public minutes. Did the board vote to unseal the minutes for the investigator to see?
B: This is covered by attorney-client privilege.
After these and several more questions were asked, the board asked the citizen what the citizen was trying to get at with their questions. The citizen replied, “Something wrong happened here. I am trying to figure out what happened.”
C: How can employees come into a non-public session without being invited? I have to believe that the town administrator knew about all of this and made plans for this. So why wasn’t there something in writing?
B: It doesn’t have to be in writing
C: It didn’t follow town procedures. What process did this go through? Whatever happened here was not Nottingham.
B: What do you mean by that?
C: This is not what we do. How many times has the town ever put anyone on paid administrative leave due to a complaint? At what point in time was the accused provided an opportunity to respond to the complaints? How could the first 13 people interviewed respond to anything the chief said since the chief was last? There was no information taken in to oppose the accusations.
Town Hall Rodent Invasion
The Town Administrator thanked Selectman Bartlett and his crew at All Seasons Landscaping for their volunteer work to clear the brush and treelimbs next to town hall that was facilitating and obscuring rodent access to the interior of the building.
The town’s exterminator is making more-aggressive efforts to kill rodents.
Evidence of rodent nesting has been found in the insulation.
Other News
The POW-MIA memorial chair will be installed in the public area of the Town Clerk’s office. The dedication ceremony will be announced later.
The state law requiring a state license to sell at events has been repealed. Localities are free to create local ordinances. Nottingham has no such ordinance. The board deliberated creating one but took no action.
The stormwater assessment has been approved by DES. The town will be reimbursed $30k by the state for completion.
Watch the video:
The Nottingham selectmen and town administrator are rude, condescending, unprofessional, and inept.
Time to do the right thing, step aside and resign.