Although the selectmen's meeting last night began at 7:00pm, it was not televised until 7:45pm.
What happened is that the selectmen asked conservation commission chair Tim Dzerchowski(tim, we hope we spelled that right?) to come in to speak to the legality of Valcat ln. as a town rd. This blog can think of no reason that the conservation commission would be asked an opinion on roads, but that is another issue. Tim gave a great discussion about the Shoreline Protection Act, and how Mrs. Osborn's construction on the lake has apparently violated it. He discussed the apparent violations of various EPA and NHDES regulations regarding storm water runoff, and proximity of construction to wetlands.
After Tim left, the meeting began to be televised, and Mr. Artus came in to make a presentation about the situation on Valcat ln. While Mr. Bennet maintained that he had spoken with town counsel that day until 4:30pm and that town counsel was still convinced that Valcat ln. was a private way, Mr. Artus showed him and the board a Deed Covenant signed by the board of selectmen and the Osborns last year which was made as a condition of issuing a building permit to the Osborns, which stated clearly that the Town recognized it's responsibility in maintaining Valcat ln. as a public right of way, and that the Osborn's would be liable for a damage to it, and prohibited form any restriction of the public's right to access those lots further along Valcat. This convenant was drafted BY TOWN COUNSEL IN MAY 2008! Yet he obviously couldn't remember it yesterday.
The conservation commission was having their meeting simultaneously in which the chairman reportedly informed the commission of his intent to file a complaint with NHDES for the environmental violations on that project.
Mr. Friel was visibly upset when Mr. Artus' production of that covenant, signed by him and Mr. Sullivan, pursuant to a unanimous vote of the board on May 19, 2008 to do so, apparently jogged his memory on the subject. The covenant required the Osorn's to obtain all permits necessary to their construction, they have apparently missed a few; to not damage valcat, or restrict the public right to pass, they clearly have violated that one. Not to mention the unpermitted constructions and modifications of the shoreline.
The selectmen agreed to review Mr. Artus packet of information, which included a memo from the NH Bar Association, with all the relevant RSA's noted about the dedication and acceptance of roads, the deed covenant, the deeds in question, and the relevant case law. Mrs. Killam of the Planning Board, stepped up to explain that she had done some research on this matter as well, and researched the deeds and law back to 1917, and was basically in concurance with Mr. Artus about the town's responsibilities towards valcat ln. as a class VI road in Atkinson. She pleaded with the board to consider carefully their course of action, as the planning board has for years tried to establish rules and procedures for dealing with class VI roads in town, and to turn a blind eye to the current mess would negate years of work in this same field all over town. And what of the other residents in town who have played by the rules, built homes, followed the rules for permitting, sprinklered their homes, to allow this house to be built and occupied waiving all of those policies, means that those policies can not exist for anyone else either.
Atkinson Town Hall
The Norman Rockwellian picture of Atkinson
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Hemlock Heights was originally planned and development for seasonal residences, with private roads. In the early 50s, I think, one of the houses was sold and occupied as a year-round home. Te question for the time, at the time, was how to provide fire department services, if needed, in a "seasonal" development. (Bunch of kids living in that one house.) I think that's when the town declared all those roads as "fire lanes", thus giving FD access for any of the buildings there. They may have been roads on the plot plan, but not to the town. Just thought you'd be interested.
Well the town agreed in a legal document filed with the registry of deeds that they had the responsibility to maintain the status of valcat as a public right of way.
everyone forgot?
the lawyer forgot?
the bos forgot?
maggie forgot.
Clearly she has moved the town road. I think she ought to be forced to move it back where it was.
well, eye went to the atkinson site to find the documents and guess what? they weren't there.
is this a scam these alleged docs?
where are they? what gives jmo?
are they up the oriface? smells like it to me.
The BOS signed the covenant, and town council reviewed it, and neither remembered it????????
?????????????????????????????
Thank you Leon for preventing this abuse, and preventing our BOS from doing NOTHING about it!
Where's the beef?
See following documents at Rockingham County Registry of Deeds
Book 4241 Page 812 (deed)
Book 4909 Page 1131 (deed addendum)
Book 4921 Page 123 (waiver of municipal liability, agreement signed by Osborns and selectmen)
Well looky there. Jerry Springer made another appearance. Things must be slow in his town.
Hey 4:33 Are you totally insane? They were just produced last night at the selectmen meeting, Even the selectmen haven't had a chance to read them all yet, how would anyone get them to put them up on the Taxpayer website yet?
What a Moron!
Thank you Mr. Springer
Curt, me bucko, "It's a hard road to travel", n'est ce pas?
Moe: "I have a very severe case of Short Term Memory Loss as everyone knows if they remember. Doesn't look like my writing on that 2008 legal document and I guarantee you I have never been to the registry of deeds in my life that I can remember, I think. But I sort of remember Curly signed it. But then, I forget."
Larry: "I have Alzheimers. Brain dead since 1964. Wasn't me. I never signed it. Did I forget? What year was 2008?
Curly: "I'm glad I didn't sign that legal document your honor! They did it. But I promised em I wouldn't tell ya! I must of promised or I wouldn't be telling ya now."
Bailiff: (speaking extremely fast) Doyousweartotellthetruth, thewholetruth, andnothingbutthetruth? (the oath of truth in the courtroom)
Curly: Huh? I told you I never signed it! Whew!
Bailiff: Doyousweartotellthetruth, thewholetruth, andnothingbutthetruth?
Curly: Are you tryin' to give me the double talk? I told ya. They done it in 2008! Swear them in.
Bailiff: (angered) Doyousweartotellthetruth, thewholetruth, andnothingbutthetruth?
Judge: (angered) Why don't you answer him?
Curly: He's talkin' pig Latin. I don't know what he's sayin'!
Judge: He's asking if you swear...
Curly: No! But I know all the words. And I never signed that piece of paper.
Judge: He's asking if you'll swear to tell the truth!
Curly: Truth is stranger than fiction, Judgie-Wudgie. --His Honor Alzheimer told me he bowled a hole in one at the Atkinson Country Club....
Judge: Kindly address THIS COURT as "Your Honor," and take the oath.
Bailiff: Doyousweartotellthetruth, thewholetruth, andnothingbutthetruth?
Curly: Soitenly! What've I got to lose? I know it's NOT a town road. Dig it up. And I ain't drinking no Hemlock Heights over it, nuther.
Judge: Take the stand.
Curly: (lifting chair) Where'll I put it?
Judge: No, no...take the stand!
Curly: I got it. Now what'll I do with it?
Ben oui mon ami, un chemin dur :-)
Tim refers to the manual on roads in NH, "A Hard Road to Travel." This is one of the most litigious areas of NH law.
Danville is currently embroiled in Blake Road, which was laid out in the 1830s and discontinued by town vote in 1924, making it a private road. Unfortunately the town granted some building permits as recently as a couple of years ago, in the mistaken belief that it was a Class VI road. The town lost a court case after it denied a petition to reopen the road, partly because reopening the road will effectively legalize the building permits that should not have been granted on a private road.
That was our third loss in court over the status of old roads. One of the other cases went to the NH Supreme Court and is regularly cited as an example in statewide ZBA training manuals as an example of how not to handle road cases.
Curt,
Are you suggesting the Town of Atkinson should never have issued the building permit on Valcat knowing their position it's a private way?
The reason I was invited by the selectmen to provide input on Valcat Lane is because I am a member of the planning board, not because I am the chair of the conservation commission. I attended the ZBA meetings when Malborn was first seeking variances to build this house. Pat Goodridge expressed her concerns and shared her research into the history of Valcat, and also told me about a state law which prohibits issuing building permits on class 6 and private roads unless the town is absolved of responsibility for maintaining the road. This is RSA 674:41.
Nobody in town hall I talked to had heard of this at the time, and I was concerned that the law as written would prohibit even things like reroofing, so I brought it up at the next planning board meeting in summer of 2007. The planning office consulted with Sumner and we adopted a procedure for approval of individual building permits on a case by case basis by the PB and selectmen, with a recorded waiver, as required by the RSA. There have been four of these permits issued so far, and based on the waiver Leon dug up, we still haven't gotten it right.
The problem is that the same waiver process applies whether the road somebody wants to build on is a class 6 town road or a private road. Sumner apparently used the wrong form, but the signing of that form by the selectmen doesn't in and of itself make Valcat a town road.
The good news is that the Osborns, by signing and recording the waiver, have put themselves on the hook for repairing the damage they themselves caused to Valcat. It couldn't happen to nicer people.
To anon@October 7, 2009 9:55 AM
I will defer to Tim on what your BOS should or should not have done under the circumstances.
Danville's zoning ordinance only allows building permits on public ways, which would include Class 6 but not private roads. I don't know what your ordinance says about this.
Tim, I must say you are perhaps the most valuable contributor to this blog. You comments are always well researched and eloquently presented, without any of usual hyperbole that accompanies the blog owners posts.
You don't go off spouting about conspiracies, don't call anyone names, and don't speak in a self serving way. In other words, you come off as credible which is a far cry from what we usually see here.
It is your kind of posts that gives people confidence. Many who post here should and need to learn from you examples.
We're damn lucky to have you. Thank you sir.
Sumner didn't "use the wrong form" The deed covenant attached to the Osborn's deed is a legal agreement between the town and the Osbor's signed by both, laying out conditions upon which the building permit would be issued.
IT WAS DRAFTED BY SUMNER!
It STATES that the town recognizes it's responsibility to maintain public access via Valcat, and it's status as a public right of way.
It is filed with the registry of deeds, the building permit was issued, based upon those conditions, and they have been violated! Why is the town looking for excuses to look the other way?
Maybe it is time for a new town attorney. This isn't the first "mistake" that he has made that will probably end up costing the town a shitload of money!
He is the guy who spent all of 2005 defending Phil as being able to deal with police matters as a selectman. Court said NO! He is the guy who filed the appeals to the supreme court, failed again!
What about the vietnam memorial debate?
It is time to get rid of this "selectmen's attorney" and replace him with an attorney that will look out for the "TOWN'S" best interests.
"I don't know what your ordinance says about this."
Curt, we thought you knew everything. Another myth shattered.
What makes Curt special is that he knows how to find answers for what he doesn't know.
That skill, the internet, and a library card will get you anywhere you need to go. Just ask Andrew Carnegie.
I also want to thank you Tim, you're one of the "good guys" that believes in truly open government, and you have the guts to stand up to the people on the planning board that shouldn't be there in the first place because of conflicts of interest.
You do an incredibly valuable service representing the citizens of Atkinson on that board. Thanks!
To anonymous@12:23 PM:
Whether Sumner drafted the form or modified a stock one, there is no question that he (and the selectmen's office) screwed up. By recording that waiver, they increased the chance that a court case could establish Valcat as a town road. All of the town's road data, maps, plans (1924 through 1985 and the town meeting where hemlock heights roads were accepted) and the state DOT map of Atkinson roads have Valcat as either nonexistent or private.
The reason the state passed RSA 674:41 back in the early 80's was to prevent somebody from buying cheap land on a dirt road, building a MacMansion, and then demanding Your Tax Dollars to upgrade the road.
I reread the waiver at registry of deeds book 4921 page 123 and noticed that clause 10 states that a a certificate of occupancy must be obtained withing one year of the waiver date (5/29/08) or the building permit expires. So the town is within its rights to issue a stop work order on that basis and halt this whole mess.
If you think this is bad wait until Shirley Galvin retires later this fall and the whole planning office falls apart. AFAIK the selectmen have made no plans yet to replace her.
I have always found Mr. Springer's comments to be well researched, and logical, which is more than I can say for some in our own town government.
Was this covenant drawn up in your competent legal hands? You know the judge is gonna see this.
Absolutely right! ---But I don't know. It was my idea to write it up, but I don't think much of it now.
What? And this Valcat Lane goes back to Henry the 8th !!!!!
We're in a tough spot, men!
Yeah, its gonna take brains to get us outa this!
That's why I said we're in a tough spot!
We're losin' altitude, we gotta get rid of some weight!
"What'a'ya lookin' at me for!? I got a little booklet here-- how to train your memory in 5 easy lessons. --Don't you dare question my recall... you know I'm not normal.
We need a way out of this. Ok...You take the right frank. And you, take the left frank. And we'll take the Prozac!
OMG. The Judge could give us life!
Hmmmm. While I can't put this in writing: I advise that where there's life... there's hope.
Only fools are positive! Are you sure?
I'm positive!
Leons facts are distorted, I was up there today, Valcat lane has never looked better. Finally the homes up there have a decent way to access there houses. You can now find Valcat and not drive up someone elses driveway. It also looks safer. Reviewing the Osborns deed shows the right of way they opened. Valcat Lane is not blocked off as Leon states. The only homes that have a right to use Valcat are lots one through six. Which are the homes on Valcat Lane. Looks like Leon is looking for another way to file a Lawsuit against the town. He is no friend of town residents, all he does is cost the tax payers money. Leon has no right to harass the Osborns or anyone else in this town. He is looking for money. Get a job (Leon) and pay your taxes on time like the rest of us. The way you acted Monday night, the Osborns should be taking action against you.
I agree with the last statement. Leon is a bully looking for free money from the Town. The Osborns are nice people. Hope Maggie gives the BOS a piece of her mind for letting Leon trash her with false statements on public channel. Maggie come out with your boxing gloves on we want your side. Call the Derry News, go on Channel 20. You have not done anything wrong except let Leon and the BOS push you around.
Really, did you not see the 8' deep ditch across valcat? did you not see valcat continue on the other side of the ditch for about 60- 80 more feet, that no one can get to now?
And the Osborn's deed says "a right of way" that's what valcat has always been. Nowhere does it say she can build a NEW right of way across somebody else's property, or that she can improve the existing right of way.
Nowhere does it say she can violate the agreement she signed with the town to get the building permit in the first place. And imagine how her next door neighbor must feel, he had to sprinkle his house to get an occupancy permit, and she doesn't?
Why do we even have laws if they only apply to certain people?
Why is Leon Artus involved with this? What does he expect to gain. Hope he is not looking for votes for selectmen again. GOD SAVE US ALL if that happens!
No one has a right to use that side unless it effect their property. The only property needing to use that right of way would be the owners of lot one through three. Do you own those lots?
Seem to me the road agent works for the BOS and he had full knowledge and issued a permit. So they asked and BOS gave them permission to construct through their road agent!
Whats Leon doing stalking Maggie Osborn, how does he know where she sleeps. Creepy... Thought he lived on Maple Ave
If the road is public the town should pay for the road to have access.
7:01 read the deed of the property owner it state that the property owner is subject to that right of way. It is the original right of way. Can't believe someone didn't find it sooner. Learn to read a deed?
NOBODY Gave them a permit to excavate the rroadway, dont you get it?
NOPE, nice try, there has never been a right of way where maggie has excavated the driveway, and it isnt her property anyways,
how would you like it if she laid a driveway across your yard?
I'd like to know what Leon's interest is in this also. If it is affecting other residents why aren't they making the complaints or going before the BOS?
Is he just being a good Samaritan or does he have some underlying purpose?
Two questions: 1) Something was said about his performance at the BOS meeting. Details please. 2) Does he have a real job?
Rumor has it that Leon wants to use valcat lane to get to his girlfriends property next to the Osborns. Problem is that his girlfriends property doesn't have a deeded right to valcat lane. So Leon gets Mrs. Davis fired up that the Osborns are stealing her land. Leon will help her fight the Osborns in court, she just needs to pay the Attorney fees. Leon will make the Osborns pay. Maybe Mrs. Davis will give him permission to use her driveway to get to the private road he is trying to claim as public road so he has room to build his three car garage on the narrow property owned by his girlfriend and use the Osborns deeded access as his own. Now who is bullying the helpless neighbor and steeling others rights. His job...take what he can from others and pay nothing to do it. Where is Leons proof, has he paid for a survey? How does he know where Valcat starts or ends and who can use it? Good Samaritan? I think not more of a (con-artus) if you ask me.
To the idiot writing the previous posting attempting (weakly) to slander Leon:
Only in Atkinson could a person spend countless hours helping people (for no charge) reduce their tax rates (due to a shoddy assessment paid for by the BOS with our money), face down an unresponsive BOS repeatedly, and risk being put on the local enemies list of an out of control police chief and STILL be defamed by the neanderthal idiot that has been posting against him here!
To the twit defending the Osbournes: Leon has more civic value in his pinky fingernail than you will ever manage in your sad lifetime. Climb back under your rock and go self-reproduce...
This guy slandering Leon Artus and so many other good people is the most intelligent imbecile I know!
I wonder sometimes if he might be schizophrenic, but hey, I’m no psychiatrist. His "poison-ality" makes me laugh out loud and I do understand that he is just temperamental. (95% temper, 5% mental)
I love it when he says things like--
"Hey fellas! Artus was stranglin' me. No kidding. Right outside deliberative session. He ripped both my arms off. He--He--He put a TURD in the punch bowl at the selectmen's party too! I know cause Dale drank a whole cup of it and threw up! And he calls himself a good Samaritan!"
Ha! Ha! Ha! Good for Leon Ha! Ha!
You act as though the Sword of Damocles was hanging over your head. Lady, you must be psychic!
Hey night shift, take your medication!
The immediate situation seems to be one of trespass. If a “person” has no legal right to property there is a need to protect that property and not allow adverse use. It is the “user” that must demonstrate a property right.
Deeds do not give property rights beyond the "bounds" of the deed. They(deeds) may ref. a "deeded" right but the right is established in the deed of the property upon granted for the reason and consideration stated.
Leon's girlfriend doesn't need a ROW from Valcat, her property is on Chase Island Rd.
Shirley Galvin is retiring and the place will fall apart? This is an indication that the building inspector's office is poorly managed. No dept should fall apart when a secretary leaves. That's insane.
The first question is: Over what ROW was the property accessed BEFORE the NEW driveway was built? Was this a legal ROW for accessing the property?
"Shirley Galvin is retiring and the place will fall apart? This is an indication that the building inspector's office is poorly managed. No dept should fall apart when a secretary leaves. That's insane."
The building inspectors job is part time. Do you expect him to run the office all day? Sue Killiam volunteers her time to the Planning Board. When Shirley was in the hospital not long ago Sue put in many hours of her own time to cover for Sue. Do you expect her to cover it full time for free?
The solution: Two full time people staffing the office. Is that what you want?
When the only full time person in an office retires, yes, it is going to cause problems. If the BOS were to have hired a second person most everyone here would have bitched about it.
Grow up and get some life experience. It is not mismanagement, it is a small town with limited financial resources staffing the way any other small town would.
"To the twit defending the Osbournes: Leon has more civic value in his pinky fingernail than you will ever manage in your sad lifetime."
And he's suing us to boot. I must have been in the wrong civics class.
But it was OK when Frank Polito sued the town over an access road miles from his house, that case was thrown out by the court. And it was OK when Lt. Baldwin sued the town over getting a job the voters never approved.
By your standard you must lump Polito and Baldwin in with Leon, Brownfield, Steve Lewis, Mark Acciard and Carol Grant.
Fair is fair.
"The building inspectors job is part time. Do you expect him to run the office all day? Sue Killiam volunteers her time to the Planning Board. When Shirley was in the hospital not long ago Sue put in many hours of her own time to cover for Sue. Do you expect her to cover it full time for free?
The solution: Two full time people staffing the office. Is that what you want?
When the only full time person in an office retires, yes, it is going to cause problems. If the BOS were to have hired a second person most everyone here would have bitched about it.
Grow up and get some life experience. It is not mismanagement, it is a small town with limited financial resources staffing the way any other small town would."
What a bunch of stupid and far fetched conclusions you drew from my comment. Get real.
I never suggested we pay two people but the one getting paid is not irreplaceable, no one should be.
Any individual is expendable or the dept is mismanged. All the records are on paper and it's about time to bring these people into the 21st century or let them go retire.
Buh-bye.
I personally think some of these admins in town hall are preventing progress. When they fight to keep their paper records and oppose any kind of automation and progress, we don't need them any more.
Anon@October 8, 2009 7:56 AM wrote:
"Deeds do not give property rights beyond the "bounds" of the deed. They(deeds) may ref. a "deeded" right but the right is established in the deed of the property upon granted for the reason and consideration stated."
This is incorrect. I have direct experience as the current owner of land that has been in my mother's family since the 19th century. It used to be backland.
The legal theory of prescription, similar to adverse possession can create non-deeded rights of way and abolish deeded rights of way, based on actual usage over time. Essentially they are undocumented easements that pass with the title to the described parcels in a deed.
Additionally, if you live on an old public road in NH, including town roads and unbypassed state routes, the general rule is that you own the property between your described boundary (e.g. a stone wall) and the center line of the traveled way. The public has an easement for travel over the land. There is case law about the rights of landowners to maintain or cut down trees or otherwise assert ownership as long as it does not interfere with the public's right of travel and maintenance of the traveled way.
CS is stating the EXCEPTION not the RULE. AND the EXCEPTION is always open to contest as the rule is not.
12:08, Mrs. Davis went to him. She came home to find her property destroyed. Valcat is a public right of way, and has been acknowledged as such by the town in a deed covenant to Mrs. Osborn's property. None of this gave her the right to build a driveway across Mrs. Davis' land. Nor did it give her the right to dig through valcat without town permission. Valcat is the right of way to all of those lots up there. has been for 70 years.
Artus did not get Mrs. Davis "riled up", and fighting mad, she was mad because her property has effectively been stolen by her neighbor, leaving her with not enough land for her lot to even be sold as a normal sale. It is now a non conforming lot.
The town never should have backed down on the conditions for issuing the building permit in the first place.
Nice try to shoot the messenger instead of dealing with the issue at hand.
Nice try, Maggie.
9:08, right of way has always bee Valcat for last 70 years.
Another ET article on this topic
Damn! Don't Come in!" "Don't Come in!" "I said don't come in! I don't live here. Nobody lives here. No one here to accept any legal demand order. THIS IS A RECORDING! You hear me? THIS IS A RECORDING.!
Wow...this blog has sunk to new lows. Sad.
The moderator should remove the above post as well as the post about Mr. Brownfield/Artus on a previous topic.
Good fill someone in on and this post helped me alot in my college assignement. Say thank you you on your information.
Well I agree but I dream the collection should secure more info then it has.
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