CHESTERFIELD, NH — An appeal to the New Hampshire Supreme Court over an alteration of a property on Spofford Lake reheats 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 violated the city’s zoning ordinance at 217 Route 9A by installing 3,769 square feet of pavers on his lakefront property.
The city has argued that a Spofford Lake property cannot be covered more than 20 percent of its surface by an artificial structure that prevents rain and rainwater from seeping into the ground.
Sugarman increased the impervious coverage of his property by installing pavers that covered nearly 32 percent of the property.
However, Sugarman has argued that the man-made structure the city is referring to is a permeable paving system that allows water to filter around the paving stones and through a substructure before moving toward the lake.
In April 2019, Sugarman received a permit from the New Hampshire Department of Environmental Protection to add 504 square feet of pavers on his property. Sugarman actually added more pavers, bringing the total area of pavers on the property to 3,769.
While the DES eventually approved the additional coverage, Sugarman never applied to the city for permission to install pavers on his property.
Sugarman’s attorney, Michael P. Bentley, has argued in the past and now in the Supreme Court that the state’s Shoreland Protection Act and the city’s zoning ordinance conflict in how they define impervious surfaces. He has also argued that the way the zoning ordinance is written, in the event of a conflict, the Shoreland Protection Act preempts the ordinance.
Both the Zoning Board and Cheshire Superior Court Judge David Ruoff disagreed with Bentley’s argument.
“[The] Cobblestones were clearly impervious underneath [town regulations] exceeding the total allowable impervious coverage,” Ruoff wrote in a 2021 decision.
Ruoff also pointed out that, as outlined in Chesterfield’s zoning ordinance, an applicant must obtain permits from both the state and the city to modify any property around the lake.
City attorneys Brendan O’Donnell and John Ratigan of Donahue, Tucker & Ciandella said in a brief filed with the NH Supreme Court that while the Shoreland Act sets minimum standards, it “explicitly empowers municipalities to impose more restrictive local regulations.” to enact . … In addition, the Shoreland Act provides that if the minimum standards set … conflict with other local or state laws and rules, ‘the more stringent standard shall apply.’”
Bentley did not deny that his client increased coverage on his property to nearly 32 percent, nor that Sugarman failed to apply for local approval.
There was no violation, Bentley claimed, because the state’s definition of an impervious surface allows for a pervious paving system even when the city’s building code does not allow it.
The state recognizes in the Shoreland Protection Act, Bentley wrote, that patios and walkways that are designed to effectively absorb or infiltrate water are “a good thing for protecting shoreland rather than surface water flowing over and over the ground.” to let and in. In this case into Spofford Lake carrying with it such chemicals and sediments that are detrimental to the lake.”
“Here plaintiff is attempting to protect the lake by carrying out the work which he has undertaken and which DES has determined meets his requirements, yet the City of Chesterfield is ignoring the benefit to the shoreline recognized by the state,” Bentley wrote , who also claimed that pre-existing lot coverage was 31.8 percent before any work was done and was adopted under zoning ordinance.
“The city, which relies on its antiquated zoning ordinance and ignores a clear conflict between the ordinance and [the Shoreland Protection Act]seeks to increase the potential damage to the Spofford Lake shoreline by causing the removal of the very system that effectively absorbs or infiltrates water protecting that shoreline,” Bentley wrote.
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 make a decision.