November 27, 2013WOLFEBORO — On Nov. 20 the Wolfeboro Board of Selectmen held a public hearing on laying out Winnipesaukee Drive and side road Knights Pond Lane at town roads and raising $1,122,000 for the design and construction cost of upgrading those roads to town standards.
While all parties supported the town accepting the roads, the developer's attorney took the position that the town, not the property owners, should pay all of the costs.
As proposed, the bond issued to pay those costs would be repaid by property owners on the private roads over a period up to 10 years through a Betterment Assessment, an additional charge added to their property taxes. There would be no impact of the bond on the tax rate paid by other Wolfeboro property owners.
Public Works Director Dave Ford introduced the proposal, noting that every year since 2006 residents of the private road have come to the town for help dealing with the deteriorating roadway, which was not built correctly. The residents paid $2,000 this year to have the roads evaluated and an estimate made of the cost of upgrading. The consulting engineer took core samples and determined that the roads need to be rebuilt completely in order to meet current town standards.
In prior meetings the residents and town had come up with the idea of paying for the upgrade through the Betterment Assessment.
Attorney Jonathan Boutin spoke as a representative of 22 residents who have filed suit against developer B & H Development for failing to install an adequate road and maintain it. He noted that the covenant with the developer specified that until 36 of the 48 lots in the development were sold, the developer was responsible for the roads. He said that the suit is still in process.
Of the 48 lots, two are in Alton. The developer still owns 24 unsold lots.
Resident Suzanne Ryan, who does not own property on the road, asked if the road bond had been released. Ford said it had, noting that there were different standards for checking roads at the time. There is a letter in the file noting the bond release, he said.
Ryan asked if the town could attach the developer's lots to pay for the reconstruction of the roads.
Town Counsel Mark Puffer responded that attachment would not be allowed under the petition as presented. The cost has to be assessed on all property owners. He said if the Board of Selectmen lays out the road and a majority of property owners do not object within 10 days, the road is accepted.
Puffer stated that if the voters reject the $1,122,000 bond needed to do the work (even though it will not affect their taxes), the project can not go forward.
Selectman Dave Bowers said he thought the assessment was a win-win situation for all since the property owners themselves could not get loans to do the work.
A new wrinkle
At that point Attorney Randy Walker spoke on behalf of the developer. He said the developer was in favor of the town laying out and accepting the roads. Walker then went on to point out there were many hearings in 1988-89 before the subdivision was approved and a $500,000 bond was required. The bond was released in 1991. A total of 24 lots were sold and 20 lots were built on, assuming the road was built to town standards.
He agreed that the town must accept the road if the conditions are met, but said he does not favor using a Betterment Assessment. He noted that 46 of the lots are in Wolfeboro and all homes need to be accessible by fire and police departments for public safety reasons. The total assessed value of the 46 lots is $7.5 million.
Walker said the Embassy Estates case is relevant to this situation. That development was built at the same time and the town was asked to lay out the subdivision road as a town road. The town denied the request and the case went to the N.H. Supreme Court. That court held that if the town had negligently layed the road out, it should pay the costs to correct the problem, not the property owners, and ordered a retrial, which found the town liable.
He said the developer is asking that the layout be accepted. but that the property owners not be asked to pay the costs of fixing the road. He said he had costs quotes ranging from $50,000 to over $300,000 to do the work – not the $1,122,000 estimated by the town's engineer.
At that point Selectman Bowers asked if there is a conflict of interest with Attorney Walker suing the town while serving as Town Moderator.
Walker responded that he was not suing the town, just asking town to lay out the roads while not imposing a Betterment Assessment.
Attorney Boutin responded that he would support the concept for his clients but felt that the estimates cited by Walker were not up to the level required by the town. For that reason his clients would still apply under the Betterment Assessment because the roads should be built to town standards.
Ryan interjected that the $1,120,000 is not the only cost, since the town will be responsible for maintaining the roads, plowing and salting them, when it is already trying to play catchup with 64 miles of existing town roads.
Bowers noted that property values will go up if the road is fixed and unsold lots will sold, putting them on the tax rolls and more than paying the costs of maintenance.
Boutin concurred. He noted that the current lots pay $80,000 in taxes. If the 24 remaining lots were sold the revenue would be $160,000.
Resident Bob Enos of 34 Winnipesaukee Drive stated "We were lied to and told by the developer that he would redo the road."
Selectmen Chair Sarah Silk closed the public hearing. The board voted 5-0 to approve the laying out of the roads, subject to a Betterment Assessment, providing a majority of property owners do not object within 10 days.
After the vote, Ford stated that the Embassy Estates road was not rebuilt by the town.