The Jaffrey Zoning Board has upheld a decision by the town’s code enforcement officer that the replacement of a culvert on Mountain Road violates the town’s zoning ordinance.
The town issued a stop-work order and notice of violation, issued by Code Enforcement Officer Robert Deschenes, on Sept. 7. The town also issued a cease-and-desist order to property owner Paula Geraghty Sept. 22.
Geraghty appealed the decision, arguing that the work was an improvement of an existing use, not an expansion, and did not alter the surface of the field, which is not allowed in the wetlands district. Although Geraghty denied allegations laid out in both the stop-work order and the cease-and-desist order, the ZBA was only addressing the stop-work order during the appeal process.
The board began hearing the case Nov. 1, but continued the hearing to Wednesday to allow a site visit to see the disturbed ground. The board reconvened at the fire station to deliberate the case immediately following the site walk.
The previous culvert, a single concrete pipe of 24 inches, was replaced with twin PVC pipes, each measuring 18 inches. Attorney Jason Reimers of BCM Environmental & Land Law, representing Geraghty, said the work was an improvement of an existing use that had never been abandoned, and that the field was left at the same elevation it was before the work was done.
Kelly Dowd, the attorney representing Jaffrey, argued that the drainage capacity of the culvert had “obviously” changed. He argued that the original intent of the culvert was to create a dry area for an airfield – a use he said has been abandoned.
“By increasing the drainage, that use has been expanded,” Dowd said. “Where you had one pipe, you have two, and you’re draining more than you did before.”
Dowd said it was a “pretty clear-cut” example of expanding a nonconforming use, which is not allowed under the town’s zoning. Dowd also previously argued that the work changed the configuration of the land – also not allowed in the wetlands zone – by taking out soil and replacing it with a gravel fill.
ZBA member Marc Tieger said he was disappointed the board had not had the chance to hear the case before the work was done.
“I feel bad that it was done this way, because there was opportunity to do it the right way. It bothers me,” Tieger said.
Chair Lee Sawyer said he could agree with points on both sides of the argument, but that he also disagreed with points made by both sides. He said he didn’t see malicious intent in the work done, and that it had been done to professional standards.
“That’s where I’m having a hard time coming down one side or the other,” Sawyer said.
The board voted 4-1 in favor of denying the appeal, with Sawyer opposed.
Ashley Saari can be reached at 603-924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshelySaariMLT.