By Mark McDonald
It is easy to read the outcome of our case for a wood shed on Old Ashby Road and think the BOS and ZBA acted rationally. In fact, while the court has so far upheld the board’s decision, they did so on different grounds than what the board even considered. There is so much more to this case than you might read at face value from the court’s decision.
For starters, look at what unfortunately came out of this case: a 72-square-foot accessory structure on stone blocks is now considered a “building” and requires a building permit. Also, the law in town is selectively-enforced. There are many other such structures close to the road in town, including school bus shelters and even wood sheds. As we tried to mention, an extremely large (and not-so-historical) propane tank on the complainant’s property sits on a permanent concrete pad, directly across the street and close to the road, installed without any intervention from the BOS, whereas our wood shed is in violation. Perhaps only wood is “chattle”, but propane is not categorized as such. Or, perhaps justice is really only blind because it looks the other way when it is convenient to do so.
So, why did we fight for our right to a wood shed? It started with an attempt to clean up the wood piles we had. Cleaning front yards is apparently the subject of yet another BOS intervention.that is now [trending on the Mason Gazette]. Instead of piles of wood with unsightly bright blue tarps that frequently fly up or are carried away by the wind, we thought it would look much nicer, be more secure, and be more in keeping with the historical district if we built a small shed in which to store our wood. Because of past issues with speeding traffic on 123 and danger of walking with a load of wood up that icy hill, we decided to locate the shed on Old Ashby Road. Familiar with the zoning ordinance from previously volunteering as a member of the ZBA, Mary knew that, “Conventional accessory structures such as play equipment, tent, mail box, outdoor fireplace, and similar structures normally found on such lots, also roadside stands, fences, warning signs, walls, trees, shrubs and all vegetation may be located on the lot in any location that does not interfere with the normal flow of traffic on a public right-of-way.” That is, no setback is required.
However, an attorney across the street on Old Ashby Road, who has been at odds with us (and even called the police) over the years about our attempts to clear snow in front of our shared mailbox so mail delivery could be resumed, sent a single letter to the selectmen suggesting that we need a building permit and did not meet the required building setback. She asked that they take any and all action to remove our shed. In our first appearance before the selectmen, before a single word from us on what we were doing, attorney Charles W. Moser, select board member and chairman at the time, declared her to be in the right. We tried to explain that it was in the public interest to allow a shed instead of piles of wood covered with blue tarps, to which one selectman asked if that was some kind of threat. To each suggestion that we could follow alternatives that were far less attractive, Chairman Moser replied that we’ll see. When we heard this, we came to believe that, unless we stand up for ourselves, our right to use our land is really in question. Our neighbor seemed to have more right to determine our land use than we did.
So began a long process as Chairman Moser walked this issue through every hearing to ensure the outcome agreed with his original proclamation. We started unopposed, attending the historic district review, where the shed passed without any objection from the community. At the ZBA hearing, we were surprised at the added attendance of our next-door neighbor on Old Ashby Road, whose chief complaint seemed to be, “I can’t see my house from your house”. Responding to an attempt to move the shed around in that location to address complaints, the original complainant said she did not want to even see the structure.
Chairman Moser did suggest we hire an attorney, which we did. At one point, it seemed as though we had found a firm legal precedent that would turn the case in our favor. Shortly afterward, we were invited before the selectmen to apply for a building permit to resolve this issue. Not seeing the legal requirement for a permit, but eager to resolve this matter amicably, we appeared before the selectmen with our permit application in hand. Chairman Moser pointed out that there were two possible outcomes – resolve the issue that night, or continue going back and forth in the application process between boards for months. We thought for sure he was going to resolve this issue on the spot. After all, that’s why we were invited there, right? But then, he proudly announced they would follow the second course – it seemed it was all a ploy. By applying for a building permit, it helped make it look like we agreed what we had was in fact a building. On top of that, it required us to go through additional delays of applying and appealing, each with their own costs in time and money. Each new hearing requires exhausting all appeals if you expect to get to superior court.
And so went the tone and tenor of all such future meetings, with Chairman Moser arguing points to the effect of, a square is a rectangle, and therefore a structure is a building. The laws in our town are sometimes ambiguous and subject to interpretation. As one long-standing ZBA member put it, they allow flexibility in enforcement. In our case, that selective enforcement was applied against us, but not our neighbor.
If you appear before the ZBA in such matters, it does not bode well for you that you did not ask permission beforehand, even if you thought you were within your rights not to do so. We struggled at every turn for a reasonable hearing. Even the meeting minutes were skewed, containing selective content – for example, a question we adequately answered about storing tools for the building of the shed while it was still being built made it into the minutes (and even the court’s decision) only as a point that the shed was being used to store other items besides wood. Our attorney even had to press the RSA 91A (“right to know”) law just to get a copy of those ZBA minutes before they were approved. To make matters worse, the courts do not consider the manner in which the ZBA arrived at its decision, especially after the town hires an attorney to smooth over the finer points of their process in his arguments by making it sound as though group think is actually unanimous wisdom. In the end, the court’s finding is based on whether there is a reasonable interpretation of the law that agrees with the board’s decision, not whether a board acted rationally in reaching that decision. Had the ZBA found in our favor and the neighbors appealed, I could see the court finding a way to again agree with the ZBA – there seems to be sufficient latitude to allow a board to make whatever decision they want, up to a point. Our concern is that every case in which the ZBA can consider they have won will embolden them to do this again and again. Like an outsider who becomes a politician, they learn to hone their message into what works for them based on applause and recognition. We can’t escape the feeling the system is rigged in favor of these insiders. Even in superior court, our judge honorably recused herself because she is an acquaintance of the original complainant. The case was decided offline by a different judge that we never met, using materials presented in the initial hearing to the recused judge. Back at home, boards do what they know they can get away with, rather than trying to reach an agreement or compromise that serves all the people who pay taxes, including the ones who pay the tax on the land whose use is under dispute.
The one silver lining in this, the small win, if we can read it that way, is that the court’s decision mentions our right to store wood at that location. So, even though Chairman Moser left us with the impression that he feels the law is what he wants it to be, rather than what is written, we at least have some assurance that some of our rights are preserved. If the selectmen had left us with that assurance from the beginning, instead of battling us the way they did, this issue might never have gotten so far.
People skills are not a strong suit for some of our boards in town and it will take a lot of smaller battles like this to turn the tide. Armed with the full power of our tax coffers, Chairman Moser might appear to be a giant in his ability to hire more attorneys to carry out his agenda. But, to quote his own words he used in another ongoing land rights struggle here in town, our case “could be poking the giant with a stick, but I’d like to think of it more as a death by a thousand cuts kind of thing”.
I sure hope things change for the better. If they don’t, we’re in for a lot more lawsuits, which in the end will really only benefit the attorneys.
Mark McDonald is currently the vice chair of the Mason planning board. As such the real life consequences of Mason’s planning ordinances have come home to roost for him. We are happy to publish his viewpoint; however, Mark wants you to know that these are his personal opinions and not necessarily those of the planning board.
We also happen to agree that the court left open the possibility of storing wood at the identical location underneath a tarp is probably acceptable as far as the zoning ordinances are concerned. So chattel under blue tarps vs. under a roof, there’s a legal difference? The ugly solution has been hinted at in numerous conversations on the issue. It will satisfy neither the McDonalds (who would have to hassle a tarp) nor their neighbors (who would still face a pile of stuff along side the road). We’re not sure a Solomon like decision works in this case.
Recently there’s been much fury about the appropriateness of an evil corporation burying a pipe in numerous peoples back yards; but how is that different from a town regulation of what one can or can’t do in one’s front yard or other portions of ones property?
Tough questions. The reference to the woodshed court decision can be found here