Illegal occupancy will cost Osborns $122,375

From the Eagle Tribune;

December 19, 2010
Illegal occupancy will cost Atkinson couple $122,375

By Cara Hogan chogan@eagletribune.com The Eagle Tribune Sun Dec 19, 2010, 12:30 AM EST

ATKINSON — It cost Margaret and Daniel Osborn more than $500 a day for each of the 223 days they lived in their 8 Valcat Lane home.

The Osborns must pay the town of Atkinson $122,375 in civil penalties for living in their home without an occupancy certificate, Rockingham County Superior Judge Kenneth McHugh ruled Thursday. The couple also must pay the attorney fees the town incurred fighting the matter in court.

The town ordered the Osborns to install a sprinkler system in their home because it was not easily accessible by fire and other emergency vehicles. A building permit issued in May 2008 specified the necessity for a sprinkler system.

But the Osborns didn't install one and moved in anyway, occupying the house from Nov. 30, 2009 until July 10 this year.

McHugh ordered the Osborns to pay statutory penalties of $275 for the first offense for living there without the certificate and $550 for each subsequent offense — incurred daily.

"They didn't have the necessary occupancy permit," town attorney Sumner Kalman said Friday. "The town sent them a cease-and-desist notice as of Dec. 14 (2009), and they had five days to conform to regulations and they ignored that. The town told them again and again to comply, but it took until the spring of 2010 for the town to go for legal action. It was a long process and it's not like the town didn't give the Osborns enough time."

The Osborns received a $5,700 cost estimate for a sprinkler system in May 2008. But they tried to avoid the need for such a system by building a new driveway instead, according to court documents. A proposed driveway plan, with a grade of 23 percent, was submitted to the town in October 2008. The town immediately deemed that plan as "not acceptable."

The Osborns did have two avenues of appeal, McHugh noted in his decision, but did not take advantage of either one of them. Margaret Osborn testified she wasn't aware of the right to appeal, although she was a member of the Atkinson Zoning Board of Adjustment for two years while that board considered her request to build the home.

Fire Chief Michael Murphy wrote in May 2008 that a sprinkler system should be a condition of a building permit. The town building inspector adopted Murphy's recommendation and made it a construction requirement.

McHugh called the case an issue of "he said, she said," with arguments back and forth between Margaret Osborn and Murphy, along with other town officials.

"The important thing in this case is there was a disagreement between Mrs. Osborn and the chief between what was said in a meeting," Kalman said. "Only one could be believed and it was quite obvious the judge believed Chief Murphy. Mrs. Osborn's story was just not reasonable. It was a good decision."

The Osborns could not be reached for comment Friday. Their attorney, Bernard Campbell, said he had not read the decision and could not comment on it.

If the Osborns install a sprinkler and have the house inspected, they could qualify for an occupancy permit and move in legally, Kalman said.

Town Manager Phil Smith said he is glad the case is completed.

"We want to put it behind us and move onto other things," he said.