Lyndeborough Zoning Board of Appeals turns down variance request for accessory dwelling unit

Lyndeborough’s Zoning Board of Adjustment turned down Arnold Byam’s request for a variance that would have allowed for an additional accessory dwelling unit Monday.

Byam, who is a member of the ZBA, recused himself for the hearing. In January, the ZBA heard his plan for a septic design to accommodate a third structure on his Old Temple Road property. Byam’s 96-acre parcel includes a single-family house and a garage with an apartment over it. A third structure formerly served as office space, and Byam was seeking ZBA approval for septic plans to use it as residential space.

The Select Board requested that the ZBA revisit its January approval of a second accessory dwelling unit. Concerns included whether appropriate taxes had been paid during the years when the structures and their use were not known to the town, as well as safety issues and the precedent any decision would make for other property owners.

At Monday’s meeting, Byam’s counsel, Will Reddington of Wadleigh, Starr & Peters of Manchester, acknowledged that Byam has “had two ADUs on the property for 24 years” which have gone unnoticed. Reddington said a variance would maintain the status quo. Several abutters spoke of their indifference to the structures on Byam’s land.

“I have no problem with his structures,” said Helen Thompson. “You’re yanking him around.”

“The ZBA and the Select Board screwed up,” said Bob Newton. “You’ve exposed the town to litigation. You should pay it yourselves — we’re tired of it.”

However, Nancy Howe questioned how owning structures in Lyndeborough for a quarter-century unbeknownst to the town was fair.

“No taxes on those places for 25 years? How is that right?” she asked.

Sally Curran asked whether there had been building permits issued for the ADUs, to which Lyndeborough Code Enforcement Officer Leo Trudeau said no.

“If he was on the board (of selectmen), he must have known this was in violation of ordinances.” said resident Peter Markarian. “Is he a friend of someone? He should remunerate Lyndeborough for what he’s earned on income from the properties. Granting exceptions is a slippery slope.”

“If he had done the right thing 24 years ago, we wouldn’t be here tonight,” said Trudeau. “And (Byam) has publicly accused me of having an ex parte conversation with ZBA member Lisa Post on this matter.”

Trudeau produced photographs taken of Post and himself appearing to be speaking earlier this year, citing them as the basis for Byam’s claim, and asking whether there was any audio to suggest what might have been said between them. When pressed for evidence, Reddington said “I’m not going to respond to that.”

Trudeau explained that the construction of additional structures on the property were “illegal and visible from the road.”

One of Byam’s contentions was that addressing challenges to the structures on his property would create a hardship. Trudeau said, “Any hardship on him was self-imposed,” adding that while permits for some buildings on the site were issued, none were issued for various utility work or apartments.

Post, who is also a state representative, noted that “the state hasn’t signed off on more ADUs (on one property site,) so I wouldn’t want to move forward with this.”

Board member Ray Humphries said that “people in New Hampshire don’t want a second ADU — otherwise, the bills (before the state Legislature this past session) would have passed. I have concerns about the buildings’ safety.”

State law specifies five qualifications that any request for a variance must meet, and the ZBA voted 3-2 against Byam’s meeting two of them, including that denying it would create a hardship for him. Asked about the next step on the matter, Trudeau suggested Wednesday that Byam be afforded six months to resolve the issue, and he has 30 days to appeal.