Dispute between developer and abutter kicked back to city Planning Board

LACONIA — The 10-month-long dispute between an abutter to the Paugus-Elm development project in Lakeport and the city will be back before the Planning Board next week as the abutter presses to have problems caused by the installation of a retaining wall addressed.

Peter Brunette, of 19 Park St., whose property abuts the rear of the multimillion-dollar mixed commercial residential complex being developed by Scott Everett, said when the 35-foot interlocking steel plates that make up the retaining wall were driven into the ground the resulting vibrations caused damage to his driveway and cracks in foundations on the property, among other problems.

Brunette is chair of the Planning Board. But because he is an abutter he has not participated in any board discussions or votes regarding Paugus-Elm.

The matter finds itself back before the Planning Board as a result of a Superior Court judge’s ruling earlier this year that the retaining wall was a structure under the city’s zoning ordinance and therefore should have been placed five feet or more from Brunette’s property.

City Planning and Code Enforcement Director Dean Trefethen determined last June that because the wall would not be visible after the project was finished it was therefore not a structure, but a construction technique, thus allowing it to be placed within the five-foot setback.

Brunette appealed that decision to the Zoning Board of Adjustment which sided with Trefethen’s opinion, and then in July it refused Brunette’s request that it reconsider that decision. Brunette then appealed the ZBA decision to Belknap Superior Court in August.

In issuing the ruling in February, Judge James D. O’Neill III sent the matter back to the ZBA which then sent it over to the Planning Board.

Besides ruling that the decision to define the retaining as a construction technique was wrong, the ruling also required that the site plan for the project be amended to show the location of the retaining wall.

When the Planning Board took Paugus-Elm’s application to amend the site plan last month, the board tabled the matter to allow Brunette and the developer “to reach some sort of agreement in settlement of the abutter's potential claims against the applicant,” according to the draft minutes of that meeting.

Trefethen said what is on the agenda for next week’s meeting is strictly the developer's request to revise the plans so that they show the pilings.

“But Brunette wants to expand that discussion,” Trefethen said.

Brunette said he believes the city and Paugus-Elm are both liable in the matter — the city because the incorrect decision that the wall was not a structure allowed it to encroach on the normal setback, and Paugus-Elm because it proceeded to install the retaining wall while the issue was being appealed — first to the ZBA and then to the Superior Court.

In July Trefethen told the developer that any work it did within five feet of Brunette’s property was being done at the developer’s risk, ”and they understand that,” Trefethen said at the time.

Brunette said the installation of the retaining wall caused some damage to his property which he believes he should have to pay to correct.

“Since the project is too far along to correct the numerous setback encroachments, it seems to me that mitigation is appropriate for consideration by the Planning Board,” Brunette said in an email he sent to the board.

The corrective work that Brunette is asking to be done includes repairs to his driveway, repairs to the cracks in the foundation, installation of a fence between his property and the Paugus-Elm project, and washing the accumulated dust from the roofs of the new buildings when construction is finished.

“I would estimate that all the mitigation would cost no more than $10,000,” he said. “They already have crews on site to do a lot of that work.”

“There is encroachment,” Brunette stressed. “So there needs to be mitigation (of the damage).”

Attorney Joseph Driscoll IV, who is representing the city in the matter, said that because the matter was currently before the Planning Board he would not comment on the situation.

Everett did not respond to requests for comment.

Brunette was particularly critical of Trefethen, saying his construction technique decision was responsible for the problems that he is now facing.

“Is the planning director working for the best interest of the city?” he asked.

When given an opportunity to respond to Brunette’s remark, Trefethen responded, “I choose not to.”