Charlestown Selectboard rescinds building permits after opponents find history is on their side

Roger Clarke's land is at the end of a Class VI road in Charlestown, N.H. A group of residents is asking that two of Clarke's building permits be rescinded, claiming they are not in compliance with local building codes or state law and threaten a conservation easement.  (Valley News - Jennifer Hauck) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com.

Roger Clarke's land is at the end of a Class VI road in Charlestown, N.H. A group of residents is asking that two of Clarke's building permits be rescinded, claiming they are not in compliance with local building codes or state law and threaten a conservation easement. (Valley News - Jennifer Hauck) Copyright Valley News. May not be reprinted or used online without permission. Send requests to permission@vnews.com. Jennifer Hauck

By PATRICK O’GRADY

Valley News Correspondent

Published: 08-11-2023 5:46 PM

CHARLESTOWN — The Selectboard has revoked two building permits issued to a landowner who planned to construct a home on Perry Mountain after it was discovered that the access road to the property had been discontinued as a designated right of way more than 120 years ago.

The board took the action last month and town attorney Matthew Decker informed the Perry Mountain Community Group, which opposed the permits, in an Aug. 4 letter to Ben Mortell, of Unity, a retired attorney and a member of the community group.

“The Charlestown Selectboard has reviewed the historical records discovered by PMCG and is in agreement that, based on the information currently available, the relevant section of Borough Road appears to have been completely discontinued by town meeting vote in 1898,” Decker wrote.

Decker went on to say that under state law, “building permits could not be issued to Mr. (Roger) Clarke (the property owner) because the relevant section of Borough Road is merely a ‘private easement,’ which does not meet the definition of a ‘street giving access’ to the Clarke property.”

Before the Selectboard’s vote, the community group had a pending appeal of the permits, which were issued last October, to the New Hampshire Housing Appeals Board. That appeal has now been withdrawn. The Selectboard minutes of July 26 show a unanimous vote to revoke the permits without discussion. The board met in a nonpublic session with Decker before the meeting.

Community group member Sharon Francis, who owned Sky Farm when it was put in permanent conservation easement, learned of the 1898 town vote with the help of Marge Reed, a member of the Charlestown Historical Society.

Francis said she was curious if the Second History of Charlestown, 1876-1954, might have something on Borough Road. Reed showed Francis and Mortell a list of discontinued roads, which listed Borough Road Extension. With further research of town meeting documents, they discovered the vote.

“There it was, 1898, road discontinued,” Francis said. “The vote of the people was overwhelming.”

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They next checked with the state historical society to be sure they weren’t missing anything before going to the town, which did its own research and agreed with the findings.

Roger Clarke had received two permits to build a 10,000-square-foot house with a barn on 40 acres near the top of Perry Mountain, which borders Unity. To access his property, Clarke proposed to widen and improve the roughly half-mile Borough Road Extension that had been designated as Class IV. The Selectboard approved that plan.

In January, the newly formed community group appealed the permits to the Zoning Board of Adjustment, arguing — among other things — that upgrading Borough Road Extension would violate the boundaries of the permanent conservation easement on the Sky Farm property that had been established in 1992. The 418-acre Sky Farm borders the road on either side for most of its length. A gate marks the beginning of the Borough Road Extension that was designated as Class IV.

Jason Reimers, an attorney with BCM Environmental and Land Law in Keene, N.H., said in an eight-page appeal to the zoning board that any upgrades to the road would “adversely impact the purposes and values of the conservation easement.”

The community group also argued that when the Selectboard issued the permits, it failed to follow town building codes and did not obtain Planning Board review, which Reimer said is required under state law.

In January, the Charlestown Building Code Board of Appeals voted 3-1 to uphold the issuance of the permits and in April denied a motion for a rehearing of that decision. The board of appeals said the Superior Court was the jurisdiction that would hear an appeal of the building permits and road widening. The community group then filed its appeal with the Housing Appeals Board.

The Selectboard told Clarke in an Aug. 2 letter informing him of the revocation of the permits, that although he could not build on his property, he could log it.

“If you proceed with your logging plans, it will be a private matter between you and your neighbor whether your ‘private easement’ includes a right to remove timber from your property,” the board wrote.

Reached by phone on Thursday, Clarke said he does not accept the Selectboard’s decision to revoke the permits.

“We are going to fight this,” Clarke said in a phone interview. “It was listed as a highway forever when it was built. What does forever mean? It means the town is responsible for it.”

Clarke said there is insufficient documentation to back up the claim that the road was discontinued and he was not afforded due process when the board voted.

“It says closure of road,” he said, “Not good enough. I was not allowed due process with my lawyer present (on July 26).”

Patrick O’Grady can be reached at pogclmt@gmail.com.

CORRECTION: Ben Mortell, of Unity, is a retired   attorney who is a member of the Perry Mountain Community Group, which opposed building permits the Charlestown Selectboard had initially granted to a Perry Mountain landowner before rescinding them last month. A previous version of this story included an incorrect spelling for Mortell's last name.