Superior Court Disagrees with Zoning Board Decision

HAMPSTEAD – In the case of Scott Lancaster versus the Hampstead Zoning Board of Adjustment (ZBA), Rockingham Superior Court Judge Kenneth McHugh found for the plaintiff and granted Lancaster’s request to subdivide his property. But there was a proviso – it would have to be approved by the Hampstead Planning Board.

In November 2012, the ZBA denied Lancaster’s request for a variance that would have allowed a two-lot subdivision of his 4 acres at 18 Lighthouse Lane because it would have had frontage only on a private road. The Hampstead Zoning Ordinance calls for frontage to be on an accepted, approved town road.

The board extensively discussed Lighthouse Lane (Estee Road), the private road that would have the frontage, and listened to abutters and residents of the immediate neighborhood voice their concerns. The road was described as a single lane gravel road that is more of a driveway or pathway.

Planning Board Chairman Randy Clark testified to the ZBA that this would be an inappropriate subdivision and premature for the location. The abutters and neighbors were concerned about increased traffic over the single lane gravel road and over safety concerns.

Lancaster and surveyor James Lavelle of Lavelle Associates contended that the addition of one more dwelling would not have a negative impact and would not alter the character of the area, but the ZBA said the private roadway was more of a trail or driveway and denied the request 4 to 1, with Neil Emerson voting to approve.
Lancaster subsequently went to court and had the ZBA decision overturned. Justice McHugh said that, “It may well be that the condition of Lighthouse Lane (Estee Road) is insufficient to support subdivision of numerous other properties located on it. However what was before the ZBA in this case is the Lancaster application…A finding in favor of the plaintiff in this case in no way suggests that any future application for subdivision of residential property along Lighthouse Lane would have to be approved.”

He said also that no evidence had been produced to say that fire and police personnel would have difficulty in accessing any of the homes on Lighthouse Lane, thus eliminating a public safety issue. In the end Justice McHugh ruled, “The court is compelled to conclude that in this particular case denial of a variance to the plaintiff was unreasonable. Accordingly, that denial is vacated. The plaintiff’s application to subdivide his property is granted. Obviously any construction of any building on the new lot to be created will have to be overseen and approved by the Hampstead Planning Board.”

According to ZBA Chairman Geoffrey Dowd, the board disagrees with the opinion of the court, but respects the decision. While that decision could be overturned on appeal to the New Hampshire Supreme Court, Dowd said that in the interest of fulfilling the ZBA’s commitment to the efficient and responsible use of town resources, it is unlikely an appeal would be filed.

It is possible, Dowd noted, that the private way in question passes over two easements adjacent to Croy Path. As a result, although it is not a ZBA issue, private rights of enforcement by the easement holders with respect to the potential expansion of the use of the easements could occur. In addition, as with any subdivision, Planning Board approval is still required.

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