CHESTERFIELD, N.H. — An appeal before the New Hampshire Supreme Court about an alteration to a property on Spofford Lake rehashes arguments heard by both the Chesterfield Zoning Board and the Cheshire Superior Court.
Both the Zoning Board and the local court have ruled that Rob Sugarman, at 217 Route 9A, is in violation of the town’s zoning ordinance by installing 3,769 square feet of pavers on his lakefront property.
The town has argued that a Spofford Lake property can’t have more than 20 percent of its surface covered by a manmade structure that prevents rain and storm water from infiltrating into the soil.
Sugarman increased the impervious coverage on his property by installing pavers that covered nearly 32 percent of the property.
However, Sugarman has argued that the manmade structure the town is referring to is a permeable paver system that allows water to filtrate around the pavers and through a substructure before it moves toward the lake.
In April of 2019, Sugarman obtained a New Hampshire Department of Environmental Services permit to add 504 square feet of pavers to his property. Sugarman actually added more pavers, increasing the total square footage of pavers on the property to 3,769.
While the DES eventually approved the additional coverage, Sugarman never applied to the town for a permit to install any pavers on his property.
Sugarman’s attorney, Michael P. Bentley, has argued in the past and now before the Supreme Court, that the state’s Shoreland Protection Act and the town’s zoning ordinance are in conflict in how they define impervious surfaces. He has also argued that the way the zoning ordinance is written, when there is a conflict, the Shoreland Protection Act pre-empts the ordinance.
Both the Zoning Board and Cheshire Superior Court Judge David Ruoff have disagreed with Bentley’s argument.
“[The] pavers were clearly impermeable under [town regulations] and thus exceeded the total allowable impermeable coverage,” wrote Ruoff in a decision issued in 2021.
Ruoff also noted that, as outlined in Chesterfield’s zoning ordinance, an applicant must receive permits from both the state and the town to alter property around the lake.
The town’s attorneys, Brendan O’Donnell and John Ratigan, of Donahue, Tucker & Ciandella, stated in a brief filed with the N.H. Supreme Court, that while the Shoreland Act sets minimum standards, it “expressly authorizes municipalities to adopt more restrictive local regulations. ... Moreover, the Shoreland Act provides that when the minimum standards set forth ... conflict with other local or state laws and rules, ‘the more stringent standard shall control.’”
Bentley did not deny that his client increased coverage of his property to nearly 32 percent, nor that Sugarman failed to apply for a local permit.
There is no violation, contended Bentley, because the state’s definition of an impervious surface allows for a permeable paver system, even if the town’s zoning ordinance doesn’t.
The state recognizes in the Shoreland Protection Act, wrote Bentley, that patios and walkways that are designed to effectively absorb or infiltrate water, “are a good thing to protect the shoreland as opposed to having surface water flow over and across the ground and, in this case, into Spofford Lake carrying with it such chemicals and sediment that are harmful to the lake.”
“Here the Plaintiff seeks to protect the lake by doing the work which it did and which DES found to meet its requirements, yet the Town of Chesterfield ignores the benefit to the shoreland which the state recognizes,” wrote Bentley, who also maintained that the pre-existing lot coverage was 31.8 percent before any work was undertaken and was grandfathered under the zoning ordinance.
“The town, relying on its antiquated zoning ordinance, and ignoring a clear conflict between the ordinance and [the Shoreland Protection Act], seeks to increase the potential harm to the shoreland of Spofford Lake by causing the removal of the very system that effectively absorbs or infiltrates water that protects that shoreland,” wrote Bentley.
The appeal was filed in November 2021. It’s not clear how long it will take the New Hampshire Supreme Court to review the case and issue a ruling.