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July 17, 2013

Windham prevails in N.H. Supreme Court case

Unanimous decision

WINDHAM — The town has prevailed in a legal battle over a zoning dispute that reached the state Supreme Court.

The case, Charles A. Roberts v. Town of Windham, also tested a new state law passed in 2011.

The ruling, released yesterday, upheld a Superior Court decision. That had affirmed the Zoning Board of Adjustment’s denial of an appeal from Roberts aimed at undoing the town’s merger of several lots he owns near Cobbetts Pond.

The new law empowered property owners to ask towns to undo such lot mergers, done without their consent for zoning or tax reasons.

Supreme Court Justice Carol Ann Conboy, writing in the unanimous decision, concluded the evidence reasonably supports a finding that Roberts’s predecessors voluntarily merged the lots themselves.

Conboy pointed to a shared driveway and placement of a garage and bunkhouse as indications prior owners intended to merge the lots for a waterfront estate.

“Accordingly, we hold that the Superior Court’s decision affirming the ZBA’s decision is not unlawful or unreasonable,” Conboy wrote.

The town also had taken the position that owners voluntarily merged the lots by accepting through the years taxation of the lots as a single entity.

“Obviously, we’re pleased the Supreme Court upheld the Superior Court decision that, in turn, upheld the Zoning Board of Adjustment ruling,” said attorney Bernard Campbell, who argued the case on behalf of the town.

It is always good when the courts uphold decisions by citizens who serve on town boards, he said.

“It’s nice to see they have been upheld,” Campbell said.

Roberts has 10 days to ask the court to reconsider and change its ruling.

“I’d be surprised if they go that way,” Campbell said.

Roberts did not return a request for comment.

Campbell said he could recall only two cases in his career of more than 30 years practicing law where a motion was filed. Only one of those was granted by the court, he said.

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