EagleTribune.com, North Andover, MA

New Hampshire

January 14, 2008

Judge chides town for poor records; Homeowners prevail in seasonal vs. year-round case

HAMPSTEAD - A Superior Court judge cited the town's poor record-keeping in his decision to grant two Sunset Lake properties year-round status.

And Judge Kenneth McHugh said the town should determine the status of other properties within Recreation Zone B - and notify property owners of those determinations.

The ruling last month caps a battle between property owners James and Amy Johnston and the town, a battle that lasted for more than a year and finally wound up in Superior Court.

The Johnstons own three houses on Abbie Lane, all of which are for sale. When a prospective buyer went to the town office to inquire about one of the properties, the town's top building official said the property was seasonal, although it was being marketed as year-round.

That sparked the long and sometimes contentious battle over the status of two of the three houses. The Johnstons didn't contest the town's contention that 26 Abbie Lane is seasonal.

Part of the issue rested on the property cards kept by the town. The two lots in question did not have seasonal designations on their property cards and that prompted a rebuke from McHugh in his ruling.

"The plaintiff's strongest argument for prevailing on the issue of whether or not both lots can be used for year-round occupancy rests with the written records, or lack thereof, kept by the town," McHugh wrote.

He went on to say that reliance on tax property cards alone is insufficient, and the town didn't offer any other documentation to support its contention that the two lots in question were seasonal.

McHugh said the town is obligated to make a property's use clear - and, in this case, the town failed to do so. He chastised the town for poor record-keeping.

Chief building official Kris Emerson said that process started more than a year ago and continues today. Many homeowners already have been notified by mail as to the status - seasonal or year-round - of their property.

The Johnstons appealed Emerson's initial decision to the Zoning Board of Adjustment and then that board's decision to Superior Court.

Emerson said he used property cards and information from the building department files to determine all three lots were seasonal. He said he also relied on information from people who were familiar with the properties prior to 1976, when the seasonal zoning ordinance was enacted.

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