When John Jackson-Marsh and Alan Marsh moved to Temple from Boston in 2014 they believed – and still do, notwithstanding the years-long legal battle over antique construction equipment on their property – they had found an ideal place to live.
Their property, 40 acres off of West Road, sits on a hill, with a view to the west of Holt Peak and Temple Mountain.
A protracted legal fight to keep dozens of pieces of antique construction equipment, including cranes, bulldozers and tractors on their property – equipment neighbors have argued poses environmental risks to the aquifer nearby – continues to this day and has cost the Marshes and the town thousands of dollars, as well as some bad blood among neighbors and many hours of time.
A settlement between the town’s attorney, the Marshes’ attorney and a couple that lives near the Marshes was not reached at a non-public hearing on Aug. 22, and the financial and emotional strain for all involved has already taken its toll.
According to Temple Selectman Bill Ezell, to date Temple has spent well in excess of of $10,000, and even if a settlement is agreed to between all parties, there could still be a trial if the judge in the case disagrees with the terms.
“We’ve spent a lot of money and time and if there’s no settlement we’ll spend thousands more,” Ezell said, adding that this has been a complicated case involving “hot feelings all around.”
“I’ll be glad when it’s all over,” Ezell continued.
Alan Marsh, who is originally from Lincoln, Mass., shares his love of construction equipment with his husband John. He said he “blames” his mother for his love of construction equipment after she began taking him to construction sites at a young age.
“By the time I was 10 she’d take me there and I’d explore,” he said. “I’d ride on machines for two or three hours.”
What began as a boyhood passion for construction machinery grew into a 45-year professional career for Marsh, primarily as an operator of drag line cranes, as well as bulldozers, steamrollers and other pieces of equipment. When it comes to land conservation, Marsh said he considers himself a conservationist and a liberal Democrat and doesn’t understand how the current situation surrounding his property has gone on for as long as it has.
“I grew up with a land conservation mindset. That’s who I am,” Alan Marsh said, explaining that his upbringing in Lincoln, known for its emphasis on land conservation, shaped his mindset regarding the protection of land at an early age. “That’s who I am.”
When Alan and John, who belong to the Historical Construction Equipment Association, began searching for property outside of Boston, using a nail and a piece of string on a map to draw a radius, Alan said they searched in Rhode Island and western Massachusetts, eventually choosing Temple after driving up the driveway to what is now their property off of West Road.
“We both fell in love with it and said ‘this is the place,’” said Alan Marsh. “But before we bought it, my husband, a former police officer who used to teach constitutional law and knows what’s what, read the zoning regulations. Zoning laws, like any statutory law, if it’s not prohibited, it’s allowed and there’s nothing in the Temple zoning that affects us.”
The issue of environmental risks posed by the antique construction equipment that some neighbors have cited – equipment Alan Marsh said does not contain hydraulic fluid and very little oil – was disputed by a report done in May of 2021. The report, put together by the environmental consulting firm GeoInsight in Manchester, found no issues with contaminants on the Marsh property.
Licensed geologist David MacLean of GeoInsight performed a site reconnaissance as well as soil tests of the Marsh property using United States Geological Survey maps to locate aquifers. He found the Marshes property was not located on a sand and gravel aquifer.
MacLean’s report also states that “Laboratory testing of soil and water samples at the property did not indicate impact from petroleum products or hazardous wastes” and that there are no problems with the way the property is being managed.
“The only potential area of concern I identified was a floor drain where regulated materials were stored but there was no indication that anything had spilled,” MacLean stated, adding that after testing the soil where the floor drain emptied there was no sign of contaminants. “The only other item identified in the soil on the Marshes’ property was arsenic, which is naturally occurring in the Town of Temple. None of this was related to the land use on the property.”
According to Ezell, some of the abutters have disputed GeoInsight’s study.
“Some abutters have said that it’s a terrible study and needs to be better,” he said. “The primary concern is water quality.”
Issues began in 2016
The problems between the Marshes and the town began in 2016, when Alan said he was approached by Temple Select Board Chair George Willard, who informed him there was a complaint regarding storage dry vans that were sitting in their field. Willard was wondering what the plan was with the vans, Alan said, explaining that a concerned citizen in Temple had driven up his driveway and noticed them.
“It was never our intention to keep [the dry vans] there, and I told [Willard] we were planning on moving them, just not when,”Alan Marsh said. “Since then, they have been moved. I don’t like looking at them either. They were at least 300 feet from the road and I learned later the complaint originated with Connie Kieley, and here’s where it gets kind of ugly.”
Connie Kieley said she originally brought up the matter at a Select Board meeting. Her and her husband John’s property sits on a hill across from the Marshes on West Road, and Alan said he wishes his neighbors would have come to him before going to the Select Board. The Kieleys have said they were advised by their attorney to not comment on the issue at this time.
“If that was you and you didn’t like the look of those trailers, most people would come see the person with whom they have a problem,” he said. “They went to the Select Board.”
When this issue was brought up to the Select Board, Alan Marsh, who was in attendance, said he made what was one of the biggest mistakes of his life by inviting the board to view his property, which by then also included the antique construction equipment.
“This is where the word ‘junkyard’ comes into effect,” he said, adding that he wishes newspapers, judges and others would stop using the term. “It’s a loaded term and has actual legal meaning. We’re not a junkyard. We don’t sell parts or disassemble machines. There’s no commercial activity. None of that.”
But abutters to the Marsh property disagreed, filing a complaint with the town in 2018 which stated: “The conduct on the site consists of the placement of truck bodies, heavy earth moving equipment, heavy machinery of sundry uses, size and type, much of it in dilapidated condition and various state of deterioration and disuse.” Even if the activity was construed as an attempt to store historical and significant items of equipment, it would require a special exception, the complaint read.
New Hampshire state law defines a junkyard as “a place used for storing and keeping, or storing and selling, trading, or otherwise transferring old or scrap copper, brass, rope, rags, batteries, paper, trash, rubber debris, waste, or junked, dismantled, or wrecked motor vehicles, or parts thereof, iron, steel, or other old or scrap ferrous or nonferrous material.”
Following the complaint, Temple served a notice of violation to the landowners in April 2018 at the behest of the Select Board, and the Marshes applied to the ZBA for a special exception to continue their use of the site that May, but it was denied. Although there was visual screening on site, the ZBA didn’t believe the the Marshes proved their activities wouldn’t impact adjacent property values. Specifically, the board was concerned about negative valuation impacts due to the visibility of the vehicles from Google Earth.
In their minutes, the ZBA also provided a list of conditions for addressing concerns about groundwater and soil impacts, which included limiting the collection to 25 pieces, storing any equipment containing antifreeze, oils or gases on an impervious service and submitting to annual inspections and inventories.
Marsh said the Kieleys demanded a $750,000 irrevocable bond in case there was a problem with the equipment and a limit of four acres on the amount of property that could be used to store it. Connie Kieley said she wouldn’t comment on the terms discussed, and said she was “surprised” Marsh released that information.
Temple served a second notice of violation in May 2019, and filed the lawsuit Town of Temple v. John H. Jackson-Marsh, et al, that July – which is still pending –according to court documents. The Marshes request for a jury trial in September of 2019 was denied, and Hillsborough County Superior Court Judge Charles Temple ordered alternative dispute resolution in late October. In April of 2021, after mediation, the case remained unsettled despite an agreement between the town and the Marshes, according to Alan Marsh.
The settlement would have allowed the Marshes to use a designated 4-acre portion of property as a “collection area,” but with some limitations regarding materials and visibility, as well as some inspection and environmental testing requirements. A year later, the Kieleys filed a motion to intervene which was objected to by the Marshes and the town but granted by Judge Temple in July of 2022.
An intervenor is a third party with specific interest in a case who has stakes in the outcome, and therefore has a right to be involved in the legal proceeding. Judge Temple ruled in the Kieleys’ favor citing case law that allows parties to intervene when they have a “direct and apparent interest” at stake. The judge’s order stated that normally, 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, but 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.”
Alan Marsh believes an accommodation with conditions should have been agreed upon at the original ZBA meeting over four years ago, and that the settlement the town did agree to should have been honored. This, he said, could have avoided the need for the current legal case and increasing legal fees for both sides. A motion to compel the town to honor the agreement was filed by the Marshes in April, but remains unsettled.
“The Temple ZBA at that time was made up almost entirely of attorneys, and they started making stuff up, talking about how many pieces of equipment we should be allowed to have,” Marsh said. “They asked how many pieces we had and I said we didn’t have an inventory. People began throwing numbers out. ‘Well, I don’t think they should be allowed to have more than five pieces.’ They were pulling it all out of thin air. There’s no legal basis for any of this. But the [ZBA] rejected our application.”
Marsh, who said he would like to have open houses where people could come to learn more about the history of the equipment on the property, doesn’t understand why there has been as much pushback from other citizens in Temple.
Jonathan Sistare, the Marshes’ attorney, said, “We are still hopeful that an agreement can be reached with the town and the other interested party to avoid additional litigation for all parties.”