NOTTINGHAM ZONING BOARD OF ADJUSTMENT
PUBLIC HEARING
JUNE 26, 2007
Approved September 11, 2007
VOTING MEMBERS PRESENT: VOTING MEMBERS ABSENT:
Mr. Doug Leib, Chair
Mr. Mike Russo
Mr. Kevin Jordan
Mr. John Morin
Mr. Jim Howard
OTHERS PRESENT:
Atty. John Ahlgren
Atty. John Teague
Mr. Terry Bonser
Mrs. Mary Bonser
Mr. Richard Burke
Mrs. Jean Burke
Mr. Brandon Cox
Ms. Jennifer Holland
Mr. Athanasios Papadopoulos
Ms. Traci Chauvey, ZBA Secretary
Chair Leib called the meeting to order at 7:10 PM. He explained that the Zoning Board is a five (5) member Board and a motion takes a vote of three (3) to pass.
Case 07-04R Application from Attorney John Ahlgren on behalf of Athanasios Papadopoulos for a re-hearing of the decision by the Nottingham Zoning Board of Adjustment on April 24, 2007, denying by a vote of 3 to 1, an appeal to an administrative decision by the Building Inspector to issue a building permit for Tax Map 24 Lot 95. The lot in question is located on Robinhood Lane and is owned by Terry Bonser.
Chair Leib asked Attorney Ahlgren to show him where, in the covenants, it states that the ‘beach lot’ is not a buildable lot and was intended for the enjoyment of all.
Attorney Ahlgren spoke in representation of Mr. Papadopoulos. He stated that he would like to know how the Board came to the decision to rehear the case. Chair Leib informed him that after reading the motion, they had doubts in their mind as to whether they should have considered information in a different way so the Board felt it was only fair with those uncertainties to rehear the case.
Attorney Ahlgren stated he had done some research and had more information. He noted that the Zoning Ordinance was adopted March 11, 1980 and at that time, in order to issue a building permit, there had to be a ‘Lot of Record’. He stated he made the argument in the motion for rehearing that the ‘beach lot’ was not a ‘Lot of Record’. He noted that a lot of record requires either a deed or a recorded plan showing the lot. He submitted copies of the only recorded plan, Plan #498, to the board members and stated that the beach lot is the only lot not enclosed or numbered. Attorney Ahlgren stated the Bonser deed was issued in 1987 and it was the first deed for the ‘beach lot’, noting all others were for the residual of the development. He further stated that this
is not a ‘Lot of Record’ as a non-conforming lot.
Attorney Ahlgren noted that Mr. Bonser’s deed states, “Said premises are subject to all restrictions and covenants noted and recorded,” and references Book 1730 Page 135. He stated that according to Nottingham Building Code and Zoning Ordinances, the Building Inspector has to have covenants and restrictions with the deed and because he did not, there is a defect.
Attorney Ahlgren read for the record definition #31 – LOT OF RECORD from the Nottingham Building Code and Zoning Ordinances. He again stated that the 1965 recorded plat does not show the ‘beach lot’ as a closed lot, it was not separate from the road and the deed was not originated until 1987. He stated that the Building Inspector could not, by Nottingham Building Code and Zoning Ordinances, issue a building permit based just on the lot not being a Lot of Record.
Attorney Ahlgren stated the covenants do not say what Chair Leib has asked to see, it is not there. He stated it was obvious throughout the whole development what the intention was, it was not separated from the road nor was it numbered. Attorney Ahlgren believes it never occurred to the developer that someone would try to build on this piece of property.
Attorney Ahlgren, noting that he was unable to obtain the building permit application file due the Building Inspector being out for medical reasons, made reference to the missing documents from the file and stated that all provisions of the zoning ordinance were not satisfied. He submitted copies of Mr. Settle’s deed from 1986, stating that there was no description of the ‘beach lot’.
Attorney Ahlgren stated that 11 property owners had signed petitions stating that they are in support of denying this permit, that there is recreational use made of the ‘beach lot’, and that they all consider this lot a valuable asset to their own lots.
Attorney Ahlgren noted that at the original hearing the board had debated whether or not they had the authority to consider covenants. He stated that submission of them is a requirement in the Nottingham Building Code and Zoning Ordinances; therefore, the Zoning Board does have the authority. He declared, again, that a building permit should not have been issued without the covenants having been submitted.
In reference to the written response of Attorney Loughlin on behalf of Mr. Bonser, Attorney Ahlgren conceded that the item recorded at Book 1730 Page 135 is a Bill of Sale, however the deed references it and it contains covenants and restrictions.
Attorney Ahlgren stated for the record that Mr. Bonser’s application did not include a copy of the recorded plat, either, noting that all that was submitted was the deed, tax map, a plot plan from a surveyor which did not contain the setbacks as required, and building plans for a house. He stated this does not meet Nottingham’s requirements.
Attorney Ahlgren stated that this subdivision has been in place for 40 years and no one ever considered this lot until 1987 when Mr. Bonser’s deed was developed. He stated that someone paying taxes on it, whether by Town error or no one complaining about the taxes, does not turn it into a buildable lot. He noted that town records refer to it as the ‘beach lot’.
Attorney Ahlgren asked Mr. and Mrs. Burke to tell the Board where they live, what their understanding of the ‘beach lot’ was when they acquired their property in 1978, how much and what type of recreational use has been made and by whom, since that time. Mrs. Burke stated that, facing the water, they live to the left side of the ‘beach lot’ and that one of the attractions to that location was that they were next to the public way and no one would ever build there. She stated they are on a hill and can see all activity that takes place there. When they first bought the property, the beach lot was used by everyone on a regular basis. She stated they had skating and sliding parties there and people on the back lots stored their boats there. At Attorney Ahlgren’s inquiry, she stated
that it never even occurred to them that someone would build there. She added that as years went by and the ‘beach’ lot started to erode, she planted plants on it, believing it was a public way and there would be no one else to stop it from eroding their property as well. Mr. Burke stated that the lot was sanded and made into a beach lot. Mr. and Mrs. Burke reported that they had been told by the Bonser’s that the beach lot was for all the back lots.
Attorney Ahlgren asked Mr. Cox to answer the same questions asked of Mr. and Mrs. Burke. Mr. Cox stated his parents purchased the lot directly across the street from the ‘beach’ lot in 1986. He stated that his mother could not be here to answer questions because she had passed away, however, she was told that it was a beach lot and that they could skate there, fish there, store their boat there. He reported that he has used the beach lot for 20 years, adding that even people who do not live in the development use it. Attorney Ahlgren asked how frequently it is used by people who do not live in the development. Mr. Cox replied that during the summer it is used by people who do not live there at least once or twice during the week and constantly on the weekends. Attorney Ahlgren asked if Mr. Cox’s deed says he has access to the beach lot. Mr. Cox replied that it refers to it as common property. Attorney Ahlgren asked Mr. Papadopoulos what recreational use he has seen of the
property over the past 20 years. Mr. Papadopoulos replied that he personally uses his own property for access to the water, however, other people use the beach lot all year round. Chair Leib informed Attorney Ahlgren that this information was submitted the first time around, noting that the petitions stated, “Although we have not made any significant, direct use of these areas, nonetheless we enjoy them as open space.” He felt that was contrary to the testimony given tonight. Attorney Ahlgren stated that significant, direct use may mean that they do not use it on a consistent basis, adding that the Burkes did not sign that petition. Mr. Cox stated that he did sign the petition, adding that he stored his boat on the lot every day until he was told to remove his boat or he would be arrested for trespassing.
Mr. Jordan asked Mr. Cox if he had a copy of his deed that shows deeded beach rights. Mr. Cox stated he does not know how to go about getting a copy of it. Mr. Jordan asked if any members of the Board had seen any deeded beach rights. Chair Leib stated that he had not and nothing had been presented to the Board.
Mrs. Bonser stated she owned two lots in the development from 1974 to 1980 or 1981. She defied anyone to present deeded beach rights, stating that everyone was aware that the beach lot was private property. She also noted that the note that Attorney Ahlgren referenced on Mr. Bonser’s deed regarding the covenants and restrictions states, “…as they may or may not apply.” Attorney Ahlgren stated that, legally, that comment does not negate any of this.
Mr. Howard asked how the deeds change, noting that the language changed between the deed issued to Mr. Settle and the deed issued to Mr. Bonser, in that Mr. Settle’s deed was for the residual property and did not reference the covenants and restrictions, but Mr. Bonser’s was for the ‘beach lot’ and did have the reference to the covenants and restrictions. Attorney Ahlgren stated that Mr. Settle had the new deeds created and it is good practice for any Attorney to note these items in the deed so that new owners are not surprised. Attorney Ahlgren indicated he believed that it was so obvious this was a beach lot that it did not occur to Mr. Commander to note that in the deed.
Attorney Ahlgren informed the Board that the beach lot includes some land that has been used by Mr. Papadopoulos. He stated that this issue was not in front of the Board, however, he felt obligated to present the Board with all information on the lots.
Mrs. Burke stated that she was informed that if a property has been used as a public way for 20 years then it becomes a public way. Chair Leib stated that determination was better off left to an attorney. Attorney Ahlgren stated that they do make the claim that the members of Nottingham Lake Shores did acquire a private easement across the lot, but informed Mrs. Burke that that is not something that can be determined by the Zoning Board.
In closing, Attorney Ahlgren stated that apart from the covenants and restrictions, the lot was not a Lot of Record by definition.
Mr. Bonser stated that this lot is a non-conforming separate lot. He stated that in 1978 the Town, at a Town Meeting, accepted the tarred portion of the road. He believes that this lot was always a separate lot but if there is any question, it became a separate lot by virtue of subtraction from both lots on each side being subdivided off and the acceptance of the road. Mr. Howard asked if the landing was a separate lot or part of the road. Mr. Bonser stated it was a separate lot.
Mr. Bonser stated there is no proof of the claim Attorney Ahlgren was making. He made reference to the “…as they may or may not apply,” section of the note on his deed, stating they obviously do not apply.
Mr. Bonser stated he had a signed Purchase & Sales agreement on the lot with Mr. Papadopoulos for $35,000. and that Mr. Papadopoulos’ intent was to build a house for Mrs. Papadopoulos’ son. Mr. Bonser said that some time later the son’s situation changed and then the Papadopoulos’ came up with the bad title. He then added that Mr. Cox was going to buy the lot last year for $45,000. and his intent was to put a garage with an upstairs apartment on it. He stated that when he tried to follow up with Mr. Cox, Mr. Cox offered him $10,000. for the lot. Mr. Bonser reported that he had not been approached by the Burkes, he went to them because they are beside it. He offered it to them for $39,000., the increase caused by taxes and the expense of his previous hearing.
Mr. Bonser stated he gave everything to the Building Inspector that he required. He stated that Plan #498 is available in the Building Inspector’s office. Mr. Bonser is personally aware of permits the Building Inspector has issued recently. He also believes the covenants and restrictions are available to the Building Inspector.
Chair Leib stated that recorded Plan #498 was approved in 1965, but there is another signed plan from 1962 which was not recorded. Mr. Bonser did not know why the two plans differed.
Ms. Bonser stated that the Town accepted the road in 1977, creating a lot, three years prior to the adoption of zoning.
Mr. Howard asked Mr. Bonser if he also owns the ‘landing’ lot. Mr. Bonser replied that he did and that he had tried to sell it to Mr. Limberis for $29,000., but Mr. Limberis only offered him $10,000. for it. He stated that sometime later, they all got together and wrote him a letter stating that these lots were not buildable and they would fight him. They then offered him $2,000. a piece for the lots. Once litigation started, they informed him they would pay him nothing for the lots.
Mr. Bonser stated he had been paying taxes on this lot, as a buildable lot, for 20 years. He read from the covenants, 10 A, stating that the use of the lot was clearly at the total discretion of the grantor.
Mr. Bonser, referring to Attorney Ahlgren’s comment regarding the part of the lot being used by Mr. Papadopoulos explained that Mr. Landry had surveyed the lot and found that if he placed the pins correctly, the line would go through Mr. Papadopoulos’ house.
Ms. Bonser stated, again, that she owned two back lots on this road and everyone knew they did not have beach rights. She stated they knew it because it was not in their deeds, they were not appraised as having beach access, and they were not taxed for having any beach access.
Mr. Cox said he felt Mr. Bonser was aware they were not buildable because he was trying to sell them for pennies compared to what a buildable lot on the water is worth.
Chair Leib asked Attorney Ahlgren if he had any final comments. Attorney Ahlgren replied that regardless of whether or not any of the other’s have deeded beach rights, Mr. Bonser’s deed references restrictions and covenants and the restrictions and covenants reference Plan #498; this is not a lot; it is not enclosed.
Chair Leib stated he felt if it was a beach lot intended for the public enjoyment it would be written somewhere. Attorney Ahlgren stated that when a plan is dedicated and says ‘beach lot’ in a subdivision then everyone in the subdivision understands that they get to go to the beach there. He stated that it is in their deed in that it is in the record and Mr. Bonser’s deed make specific reference to the covenant’s and restrictions, which make specific reference to Plan #498. Attorney Ahlgren stated it is in the Registry of Deeds for everyone to see. He stated it only became a lot for identification purposes when the Town accepted the paved portion of the road. Chair Leib stated that if the lot showed up on the Tax Map before 1980 that would make it a Lot of Record. Attorney Ahlgren
countered that a Lot of Record, by Nottingham definition, is either by described deed or a filed recorded plan. He stated that the Tax Map is just an identification tool, it does not define boundaries, it does not create a subdivision, it does not define a lot.
Mr. Jordan asked if the covenants and restrictions were attached to every lot in Nottingham Shores. Attorney Ahlgren replied that that was correct. Mr. Jordan asked how many lots there are in the development. Ms. Bonser thought around 80. Mr. Jordan inquired about the $24. fee he read in the covenants. Attorney Ahlgren stated that the developer had the right to charge $24 per lot annually for whatever the scope of the phrases in the covenant covered.
Chair Leib asked Attorney Teague if he had any comments for the Board. Attorney Teague stated this is a Land Use Court case that is being presented to the Zoning Board. He stated the Board is not empanelled to make this kind of decision. He stated that the Board is entitled to be presented with a set of facts upon which they can depend, and then they apply the Zoning Ordinances to the facts, however in this case, the facts themselves are being fought between two parties. He stated that it may be a pre-existing lot, noting not every lot has four square corners around it. He added that some lots are created by left-overs, some by development, some by abandonment. He noted that the 1965 Plan #498 clearly shows the beach lot has been left out of the sequential numbering, and says “beach” on it. He stated that covenants usually and clearly give everyone a right to common land and it is not spelled out in these covenants at all. Attorney Teague stated he felt the Building
Inspector would have been faced with the same problem although he didn’t think the Building Inspector was aware of that because there is a possibility that he was not provided with the whole record. He stated that the evidence is not conclusive on either side.
Attorney Ahlgren commented that Mr. Bonser could bring a declaratory judgment action in the Court and ask the Court to resolve the Lot of Record issue. He added that when there is a dispute in the facts and the Zoning Board, in a willy-nilly manner, decides to uphold the Building Inspector’s decision without researching the facts, the Board gives up its purpose. He noted that this case will be going to Superior Court either way and encouraged the Board to vote in their favor.
Mr. Bonser stated this is an appeal to an administrative decision and the decision is based on whether the Building Inspector, with what he was presented, issued a valid building permit. He stated the answer is yes. He feels the other issues do not come under the Zoning Board’s ruling. He asked the Zoning Board to uphold their first decision.
Mr. Jordan stated he feels the Bonsers have asked a modest amount for this property and they have never gotten paid by anyone for any usage. He added that he feels if people are so interested in saving it, they should buy it and sell off beach rights to people.
Mrs. Burke stated she felt the Building Inspector needed to answer some questions before a decision could be made.
Attorney Teague stated the Board decided to rehear the case and they need to make a decision. He noted that it will most likely go to Superior Court where the outcome may be that it ends up back in front of the Zoning Board. He did not know if the Court, in a Zoning Board appeal, will tackle the issue of title, noting the only way to get that resolved is to file a petition to quiet title. His concern, from the Town’s point of view, is that an Administrative Appeal will keep things in a constant state of status quo. He stated that the Zoning Board could not resolve this case, to his satisfaction, because the facts are in dispute and they do not have the authority to resolve this. Attorney Teague stated that one argument is that the Building Inspector issued a permit on what he had at the time. He
stated that the Zoning Board’s decision is whether the Building Inspector’s decision was correct based on what he had in front of him. He added that the Board is entitled to take into account any subsequent information that was not in front of the Building Inspector and say it is because of the new information, not that the Building Inspector was incorrect but that he did not have all the information, and overrule it. He then stated that the Zoning Board has to make a decision one way or the other.
Mr. Bonser stated the Zoning Board granted the rehearing based on the thought that they were going to hear something new and nothing new was presented. Attorney Ahlgren informed the Board that the statement that there has to be new information is incorrect, noting that if the Board feels there was an error or oversight, they can rehear the case.
Chair Leib informed the parties that if no one else had anything more to say the Board was going to close the case and make a decision within 30 days.
Mr. Russo made a motion to close the public hearing on Case #07-04R. Mr. Jordan seconded the motion. By a show of hands, Chair Leib, Mr. Russo, and Mr. Jordan voted in favor of the motion. Mr. Morin and Mr. Howard voted against the motion. Motion passed 3-2.
Mr. Howard stated he would like to make a decision. Chair Leib informed him that he was outnumbered so he would have to wait until the next meeting. Attorney Ahlgren stated he did not understand Chair Leib’s comment as he thought the motion was simply to close the public hearing, not to delay the motion. Mr. Russo confirmed that Attorney Ahlgren was correct. Chair Leib apologized for not making his intent clear when he called for a motion. He stated that if the Board wanted to make a vote, he would entertain a motion after they discussed it some more. Ms. Chauvey asked if Mr. Morin and Mr. Howard were still opposed to the motion with its clarification. Mr. Russo offered to re-motion.
Mr. Russo made a motion to close the public hearing portion of the meeting but to have the case remain open for discussion among the Board on Case #07-04R. Mr. Morin seconded the motion. All in favor. Motion passed 5-0.
Chair Leib told the Board that he feels that the case needs to be decided by authorities that have more power than the Zoning Board. He stated that the Building Inspector had a copy of the deed that he needed. He further stated that the Building Inspector told him he had all of the other information that he needed. Chair Leib informed the Board that he would entertain a motion to uphold the previous decision. Attorney Ahlgren, respectfully noting that the meeting had been closed to public comment, stated that the Chair has just informed the Board that the Building Inspector had told him he had all of the information required but Attorney Ahlgren had viewed the file personally and believed that to be incorrect. He did not feel that that was a proper piece of information to be passed along to the other member of
the Board after the hearing had been closed, noting it goes beyond deliberation and commentary. He stated that Chair Leib is suggesting the file was complete when Attorney Ahlgren’s motion for appeal had suggested it was not. Chair Leib stated that Attorney Ahlgren’s argument had been whether or not the lot was a Lot of Record. Attorney Ahlgren replied that that was part of the argument, further stating that he had arrived early to obtain the building permit application file, however, the Building Inspector had left early for medical reasons. Chair Leib stated the he felt a good attorney should be better prepared. Mr. Bonser commented on the point of order. Chair Leib acknowledged that they should not still be discussing this.
Mr. Russo stated that he is sensitive to the Town being dragged into a case that is essentially between two other parties. He noted that the only thing the Board could look at was the actions of the Building Inspector in issuing the permit and whether he made an error, not of commission but of omission. Mr. Russo stated that in his opinion the Building Inspector was not presented with the full set of evidence. He stated that he did not know if there was a way for the Town to extricate itself from this legal battle, adding that he feels it will take an expert deed and planning type person to sort out the details of this. He noted that this is a very old mess and he sees layers of errors at different levels. He stated he would be interested in hearing if there is a way for the Town to make a decision that
extricates them from the legal battle. Chair Leib stated he did not know and invited Attorney Teague to speak. Attorney Teague stated that if the parties are agreeable, the Zoning Board can put the matter aside until they go and work it out, but the Board could not make them do this. Mr. Russo asked if both parties were willing. Mr. Bonser replied that he was not. Attorney Ahlgren suggested that if the matter is not placed in litigation in Court within 60 days then the Board decides the issue. He stated that his party does intend to go to Court on the declaratory judgment and petition to quiet title on both the beach lot and the landing lot. Mr. Russo stated it appears his idea of having the Town stepping out was not going to work.
Mr. Howard stated he was the one to make a motion to rehear this case. He made the motion because he was trying to understand what the Building Inspector’s role was and what his job description was and what his responsibility before issuing a permit was. He stated that what is in front of the Board is far beyond them and he further believes that whatever decision the Building Inspector made they would still be here. Addressing Attorney Ahlgren, he stated it is clear that they intend to take this to court and he believes that is where it belongs.
Mr. Howard made a motion to uphold their original decision that the Building Inspector did, and was able to, issue the permit. Mr. Morin seconded the motion. By a show of hands, Chair Leib, Mr. Howard, and Mr. Morin voted in favor of the motion. Mr. Russo and Mr. Jordan voted against the motion. Motion passed 3-2.
OTHER BUSINESS:
Ms. Chauvey excused herself as the Zoning Board Secretary and sat in the public seating area. She asked if Mr. Howard had received answers to the questions he had posed at the last meeting. Mr. Howard replied that he had not. Ms. Chauvey stated she is interested in finding the answers and asked the Board how to obtain them. The Zoning Board directed her to the Selectmen.
Mr. Morin made a motion to adjourn the meeting. Chair Leib seconded the motion. All in favor. Motion passed 5-0.
Meeting adjourned at approximately 9:40 PM.
Respectfully submitted,
Traci Chauvey
Zoning Board of Adjustment Secretary
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