December 12, 2013WOLFEBORO — In response to a second petition objecting to the use of a Betterment Assessment to pay for improvements to the roads in the Winnipesaukee Estates subdivision, on Dec. 4 Wolfeboro selectmen formally withdrew its 2014 warrant article calling for a $1,122,000 bond to rebuild the private roads to town standards and pay for the work through a Betterment Assessment added to the property tax bills of all property owners.
The board had held a public hearing on Nov. 20 on a first petition from 22 residents asking the town to lay out Winnipesaukee Drive and Knights Pond Lane as town roads and rebuild them to town standards at a cost to be paid over 10 years by all property owners in the subdivision. During the hearing Attorney Randy Walker, representing B & H Development Corporation, spoke in favor of laying out the roads as town roads but against the use of a Betterment Assessment to pay for the work. Instead he argued, based on the case of Embassy Estates on Wolfeboro Neck where the town had also approved a substandard road in a subdivision and was blocked in court from requiring a Betterment Assessment to pay for it, that the town should pay for the work itself at no cost to property owners. B & H Development still owns 24 of the 48 lots in the subdivision.
Following the hearing selectmen voted unanimously to approve the petition and place the $1,122,000 bonded article on the 2014 warrant.
Under state law the imposition of an assessment can be blocked if a majority of the property owners on the road object within 10 days. Since B & H Development still owns a majority of the lots it was able to block the assessment by filing the second petition. In that second petition B & H cited as bases for its objection as "primarily because the homeowners [who submitted the first petition] are seeking to have B & H pay 100% of the same in a separate civil action" and the rejection by selectmen of bids of $90,000 or $312,000 from local contractors for "reduced scope work" on the road.
Selectmen submitted the issue to Town Counsel Mark Puffer, who agreed that the second petition blocked the first and that the board should withdraw the warrant article. He cited the opinion given by longtime N.H. Municipal Association attorney Bernie Waugh in his book on state road laws titled, "A Hard Road to Travel."
B & H Development also submitted a third petition asking the town to lay out the roads without a Betterment Assessment. The board voted against accepting the third petition.
Residents of Winnipesaukee Drive at the meeting objected to the board's decision on the second petition.
Bob Enos of 34 Winnipesaukee Drive spoke from the audience to argue the point made by the homeowner's attorney Jonathan Boutin that the state law's requirement that a blocking petition must be signed by "a majority of owners of property abutting or served by the existing private right-of-way" does not mean that a single owner of a majority of lots can oppose a majority of lot owners. Boutin claimed that "the New Hampshire Supreme Court consistently interprets statutes using the plain language of the statute. Enos urged selectmen not to make an "arbitrary" interpretation of the law and to seek a second legal opinion.
Selectman Dave Senecal said the board has to rely on the opinion of Town Counsel since he will have to defend the town if challenged. He said he was sympathetic to the homeowners' plight.
Selectman Linda Murray said her "mind boggles that the developer would not want others to help him pay for the upgrade of the road," since it would be able to sell its lots if the road were improved, but she too would have to go with the legal opinion given.
Enos asked if he could get a copy of Puffer's email with the opinion. Town Manager Dave Owen noted it was not marked confidential. Selectman Chair Sarah Silk polled the board and it agreed to release the email opinion.
Selectmen Dave Bowers proposed that the residents consider only upgrading the part the road where they live to reduce costs and take the developer out of the picture. Enos responded that one residents lives in the developer's section. "Besides," he noted, "the developer owns the road."
John Russell of 46 Winnipesaukee Drive asked if the homeowners bought one more lot, would they become the simple majority?
Tom Mechachonis of 31 Winnipesaukee Drive asked if the Attorney General can be asked for his interpretation of the language.
Neither resident received a response.
Leo Briand of 49 Winnipesaukee Drive asked what the board's position was on the developer's petition to lay out the road without an assessment. He too was not answered directly, but the board subsequently voted 5-0 not to accept it.
In the end Murray moved to remove the Winnipesaukee Drive article from the warrant and it passed unanimously.
Other warrant articles
The board reviewed, for a second time, the list of warrant articles for the March 2014 ballot. The articles are not yet numbered, so they are referred to by letters.
Article B, Middleton Road Construction was unchanged.
Town Counsel Puffer submitted revised wording on Article C, Reduced Scope Renovations of Wolfeboro Town Hall that placed the donations pledged by the Friends of Wolfeboro Town Hall closer to the beginning of the article.
On Article E, Public Works Garage Facility Upgrades, Selectman Brad Harriman proposed not bonding the $160,000 cost. Town Manager Owen pointed out that the rest of the work on the garage had been bonded and that each $100,000 would cost eight cents on the tax rate. The article will stay bonded.
Article I, Temporary Relocation of Town Offices, added the figure of $50,000 and the board approved the proposed lease with Huggins Hospital for the space – the same amount and lease that was offered in Article 16 in 2011.
Article L, to Establish a Wastewater Treatment Plant Capital Reserve Fund and place $125,000 in it, was added.
At the end of the review the board voted to hold a public hearing on the three bonded warrant articles at 6:35 p.m. at its next meeting on Dec. 18.