A permit moratorium enacted by the Lyndeborough Select Board is preventing residents with properties adjacent to Western Way, a private road, from receiving approval on any permits until an ongoing dispute between the board and residents Tom and Ginny Chrisenton is resolved.
The Chrisentons recenlty came before the Lyndeborough Zoning Board of Appeals to dispute the rejection of a building permit for a roughly 160-square-foot woodshed based as a result of the moratorium. The deliberation lasted just under three hours, and the board was required to adjourn before 10 p.m. Zoning Board Chairman Richard Roy also noted the complexity of the issue, and said he would like some time for the board to better familiarize themselves with the case before coming to a decision.
The Chrisentons originally applied for a building permit to construct a shed on their property Feb. 28, 2024. On March 26, they received a denial letter from Building Inspector and Code Enforcement Officer Leo Trudeau, who cited an active permitting moratorium, put in place by himself and the Select Board in September 2021.
The moratorium prevents the approval of any permits submitted by property owners with lots adjacent to Western Way, a private road in West Lyndeborough. The Chrisentons use Western Way to access their residence, as well as a two-lot subdivision and another single-lot subdivision approved by the Planning Board in 2007 and 2008. The Chrisentons dedicated the two-lot subdivision as conservation land in 2022, pursuant to section 404.10 in the Lyndeborough zoning ordinance.
The 2021 moratorium states that “The Town of Lyndeborough was recently made aware of issues relating to three specific subdivisions approved by the Planning Board in 2007 and 2008,” referring to the three lots owned by the Chrisentons. “The town’s ongoing in-depth review found irregularities in how these subdivisions were considered and approved, relative to road specifications, design and classification. Owners of all parcels that were a part of these subdivisions are hereby notified that new building permits for any structures on these parcels shall not be approved until such time that the issues have been satisfactorily addressed.”
In particular, Trudeau found that Western Way does not meet the prerequisites of section 404.00 of the zoning ordinance, which requires that “all lots in a large lot subdivision subdivision shall be accessed by a private road constructed to meet the minimum standards detailed in the Town of Lyndeborough street and road design standards.”
Trudeau and the current Select Board determined that the previous subdivision approval was erroneous because it did not properly consider the quality and condition of the road, which technically does not meet the minimum standards of the town’s street and road standards.
In a letter dated June 14, 2023, the Select Board reminded the Chrisentons of the permit moratorium, and stated, “Once the roads are alleged to have been built to specifications they must be inspected, at the developer’s expense, by the Lyndeborough building inspector and code enforcement officer, as well as the town engineer.”
The Chrisentons filed an appeal of the rejection of the building permit, and dispute some of the claims laid out by the building inspector and Select Board.
In particular, they argue that, since the lots were dedicated as conservation land in 2022 in accordance with zoning ordinance 404.10, the subdivision is only beholden to that section, which does not have a road-quality requirement. They argue that 404.00 does not apply to conservation land.
Furthermore, according to a memorandum in support of the appeal written by the Chrisentons’ legal counsel, Will Reddington, “Pursuant to RSA 677:15, any appeal claiming that the subdivision plan approved by the Planning Board was unlawful must have been brought within 30 days of April 21, 2022. No such appeal was taken.”
The Chrisentons added that, through a private road agreement between themselves and the four abutting property-owners, they have maintained the road beyond the minimum standard laid out in section 404.10. Even though it has not been formally inspected and approved by the town, the Chrisentons argue for the road’s safety, as heavy logging and Fire Department trucks have used the road without issue.
Chris Drescher, the lawyer representing the Select Board, argued that section 404.10 in the zoning ordinance is subordinate to section 404.00, the roads must meet the requirements of both sections.
Additionally, he claimed that the Select Board’s 2021 “moratorium” is not an official moratorium per state law, but rather the board exercising its police power to execute a code enforcement action. Drescher said it was given the unofficial name of “moratorium” by the Select Board, but was not beholden to the one-year expiration period.
Finally, he told the Chrisentons that, if the road was built to town standards as they claim, an impartial third-party engineer should be hired, at their expense, to officially inspect the road and give approval. If the road is approved, the Select Board will begin granting permits to the landowners. He added that, from the Select Board’s point of view, it was a matter of health, safety and welfare, as they didn’t want to approve construction on a private road they couldn’t confirm was safe.
In their rebuttal, the Chrisentons and Reddington pointed out that construction on private roads is not uncommon, and the Select Board could agree to sign a municipal wavier of liability to ensure it isn’t liable if someone is injured on Western Way due to the road’s quality. They argued that the moratorium unfairly targeted the Chrisentons, and was an attempt by the Select Board to take back a decision they were unhappy with.
They also said it would cost an estimated $35,000 to hire a third-party engineer to inspect the road.
Steve Brown, who lives in a property adjacent to Western Way, said the moratorium is preventing him and other nearby residents from having any permits granted while the issue is ongoing. He had begun construction on a building that is to be a retirement home, but was unable to renew the construction permit or receive an occupancy permit due to the moratorium. He told the Zoning Board the structure has been sitting empty and unused for two years, and that work couldn’t continue until the issue is resolved.
After the lengthy introduction to the issue, there were only 15 minutes left in the meeting’s scheduled time. Roy told the rest of the board that the issue will be tabled so members can better familiarize themselves with the issue, and that the discussion will continue at the next ZBA meeting June 24.