A Hillsborough County Superior Court judge has ordered that two residents of Temple be allowed to intervene in a case between the town and the owners of a abutting property containing a collection of antique construction equipment.
The order follows a lawsuit between the town and John Jackson-Marsh and Alan Marsh for civil penalties related to land-use complaints. The sides entered mediation outside the court in March of 2021 and a settlement was reached, conditional on whether the Nashua Superior Court would agree to allow neighbors John and Connie Kieley to become intervenors.
An intervenor is a third party with specific interest in a case who has stakes in the outcome, and therefore a right to involvement in the legal proceeding. Both the Marshes and the town objected to the Kieleys intervening in the case, but Judge Charles Temple ruled in the Kieleys’ favor, citing case law that allows parties to intervene when they have a “direct and apparent interest” at stake.
Normally, the order stated, no “private person” is allowed to intervene in cases where public officers are engaged in litigation to protect public rights carried out to maintain public interests.” However, the order states that “the procedural history of the settlement troubles the Court in part because it suggests the town may not be adequately protecting the public interest with respect to the junkyard.”
The Marshes own approximately 40 acres of property on West Road in Temple that abuts the Kieleys’ and others’ land. According to the court order: “Beginning sometime after their acquisition of the Property, the defendants have been using it as a motor vehicle junk yard, storing old motor vehicles, motor vehicle parts, construction equipment, pieces of scrap metal and other materials.”
In April 2018, Temple Select Board members served the Marshes with notice that the operation of a junkyard on their property was illegal, and that they must cease such use. The Marshes then applied for a special exception that would permit them to continue their use of the property, which was denied. The Marshes did not appeal the denial and did not cease their use of the property.
In August 2019, the town sought injunctive relief, requiring the Marshes cease “operating their junkyard,” according to the recent court order. The town also sought civil penalties and reasonable attorney fees and costs. After mediation, a settlement was agreed to that would allow the Marshes to use a designated 4-acre portion of property as a “collection area,” but with some limitations as to materials and visibility, as well as some inspection and environmental testing requirements.
It wasn’t until February, at a Select Board meeting, that the Kieleys learned the board had voted in favor of the settlement and members were prepared to sign it. In early April, the Kieleys filed a motion to intervene, and board members signed the settlement conditioned on the outcome of the request to intervene.
The counsel for the Marshes had filed in Nashua Superior Court requesting that the court require the town to sign the settlement agreement, despite Select Board members’ misgivings. The town’s attorney, Laura Spector-Morgan, advised board members that it was unlikely the court would side with the town, and advised the board that delaying signing could lead to the town being liable for court costs.
Temple’s order allowing the Kieleys to intervene regarding the settlement will allow them to formally address the court on the matter. In their request to intervene, the Kieleys asserted that because their land abuts the Marshes property there are direct impacts to their property and that the settlement did not provide adequate testing and safeguards. They are also “skeptical of the town’s ability to monitor the junk yard operation,” the order states.
Another abutter to the Marshes’ land, Ivy Bibler, said she is concerned for the safety of the Temple aquifer, which is partially fed from a pond on her property that sits below the Marshes’ land.
“[The Marshes] have been doing this for some time without containment,” she said, referring to the storage of what she described as over 30 pieces of large equipment on their property. “It’s not a matter of if, it’s a matter of when there is a contamination of the water.”
John Kieley pointed out that the Town of Wilton has also expressed concern about the aquifer, and that they have other concerned citizens working with him and his wife on the case.
Temple Conservation Committee Chairman Scott Hecker is concerned that there have been no consequences for a “mess that could occur from even one piece of machinery.”
“[The Marshes] say they’re just rusty old machines with no liquids in them. That’s not true,” he said. “Back in the early days, they were not cooperative about letting people see things. But aerial maps show what looks like a really big junk yard.”
The Marshes have denied the equipment on their property constitutes a junkyard, Hecker said, but he disagrees. And he would like to see the denials from the past adhered to.
“I want to see that place shut down and the equipment removed,” he said, adding that he is speaking as chair of the Conservation Committee and a former abutter to the Marshes’ property. “There is potential damage to streams going from [the Marshes’] property to Ivy’s pond and the Souhegan watershed and beyond.”
Hecker is frustrated “with the simple fact that after being denied twice from the Zoning Board and with a cease and desist from the Select Board, nothing became of it.”
Part of what makes the case to remove the equipment from the Marshes’ property visually compelling, Hecker said, has been made possible by beavers that have made a lodge where the water comes off the Marshes’ property and into Bibler’s pond.
“Beavers built their lodge exactly where water comes off junkyard into Ivy’s pond, which is at the bottom of the hill and sits on the aquifer,” he said. “[Beavers] have been excavating that stream and taking mud where her outlet is and there is an oil-like material there. It could, of course, be natural oil and have nothing to do with petrochemicals.”
The Marshes have until July 15 to appeal the order, but another issue at hand is the motion to compel, asking the court to force the town into a settlement agreement, Kieley said.
“Once we get by those two hurdles, the appeal and the motion, a big decision will need to be made about the court case from three years ago between the town and the Marshes. There’s a trial date set for August this year. Or they will try to settle this again,” Kieley said.
The Marshes’ attorney Jonathan Sistare, whose office is in Dublin, was not available for comment.