Gilford Selectboard denies request to back warrant article breaking restrictive covenant of Mitchell Road property

GILFORD — The owners of 20 Mitchell Road have put in motion another attempt to have a subdivision approved, breaking a restricted covenant put into place by their late relatives, after a first request was defeated at Town Meeting in March.

At the Oct. 28 selectboard meeting, the board voted 3-0 to deny a request from the Sargent Family Trust's attorney Joshua Marshall, of Wescott Law, to recommend breaking the covenant.

Marshall, representing Rob and Ellen Sargent of the Sargent Family Trust, spoke to the selectboard at the meeting, as the Sargents sat behind him. He said the property was inherited from their great-aunt, and had been in the family since the mid-1800s.

“Unbeknownst to them when they inherited it, it was subject to a restrictive covenant,” Marshall said. “This is not the way that modern real estate practice contemplates restrictions on future subdivision, but that’s what was done in the ‘80s by their great-uncle and great-aunt.”

Last year’s warrant included an article asking voters to decide the fate of the land. It was introduced to many for the first time at the first deliberative session in February.

The petitioned article asked voters to authorize the planning board to allow the restrictive covenant to be broken. The covenant was put in place by Rob's great-aunt, and granted by the town in 1980.

Last year, attorney Kyle Amell told the voters, and the selectboard, the rationale for the covenant doesn’t exist anymore, and the family wishes to subdivide the property to build more homes.

The selectboard was made aware of the request, and recommended against the article with a 3-0 vote at a previous meeting. Amell asked them to reconsider at the deliberative session, and they declined to do so. Chair Chan Eddy said this could set a “dangerous precedent,” and foresaw it being a “legal nightmare.” Fellow selectboard members at the time Kevin Hayes and Gus Benavides also did not offer support of the endeavor.

Outside the polls in March, Rob Sargent said the 33-acre property has been in the family for more than a century, and their desire was to subdivide 17 wooded acres of land. He said a partial release of the covenant was approved by the town in 1996, using the same process.

If approved, he said it would have resulted in 11, “year-round, single-family homes on Dockham Shore Road.” Benefits to the town include $160,000 in tax revenue, and an estimated $200,000 annually in future property tax revenue.

The article was ultimately voted down 391-586.

The Sargents renewed the effort on Oct. 28. Marshall said the trust had been working with Town Planner John Ayer and the town’s planning department, and with the last-minute nature of the request, decided to petition the voters. Marshall said that might not have been the best move, as it was voted down.

“We are here again this year, to open up discussions again, and hopefully seek this board’s positive recommendation regarding a warrant article to release that restrictive covenant,” Marshall said. “In doing so, I’d like to emphasize that this, in no way, would affect the planning department’s ability to approve or deny a particular application.”

Eddy remembered the situation, saying the timing was “tight,” and he thought it likely contributed to the negative vote.

Ayer told the board he spoke with legal counsel, who said it was “somewhat uncharted territory,” but thought the selectboard could propose a non-monetary warrant article if inclined. That wouldn’t require a public hearing.

Ayer said the property owner would need to submit an application to amend any requirements to the planning board, following a positive Town Meeting vote. He didn’t believe the planning board needed to be involved if the selectboard were to propose the warrant article.

“As far as the actual action is concerned, if it did get voted through and the planning board voted to amend the subdivision plan, my feeling is that his would allow that property to be sold as the property owners would like to do, and it would also allow construction of more homes in town,” Ayer said. “I see it as a very viable place for building homes.”

Ayer said there is an eight-lot subdivision, approved several years ago there, which has been built out, and they would build the rest of that. He noted the statewide need for homes, and thinks this is a likely spot for houses to be built.

Benavides said it was a good move for the Sargents to start the process earlier. He thought voters didn’t know much about what they were voting on at the time, and said the information wasn’t provided clearly.

He asked Marshall to explain the original intention from 1980. He thought it was that the land was supposed to be restricted to conservation, but Marshall said, “not exactly,” and the intention was unclear.

“My interpretation of this, if you’ll excuse the poor metaphor, is kind of like reading tea leaves from these records,” Marshall said. “But I think it was that their great-uncle and great-aunt were trying to sweeten the deal with the town in the ‘80s, or the abutters, to advance their application for subdivision approval at the time by saying, ‘At this point, we’re done, we’re happy with our farm as it exists.'”

Marshall said they requested “seven or eight or so acres” at that time. He said this is the best explanation he could give as to why the covenant was made then.

“It’s not clear to me that this was a demand either by the town or by the abutters or anything like that,” Marshall said. “My interpretation was that it was just something they offered to sweeten the deal, because those individuals, their intent was to leave it as is, and not further subdivide.”

Benavides interjected, “stop right there for a second.”

He said this is the key part to concentrate on, and asked what their intent was. Marshall reiterated he thought they just wanted to push through their seven-lot subdivision to keep lot No. 8 as 38 acres, and were just happy with their farm, and didn’t intend to profit off building on the property.

“I think they just wanted to keep their large property and that was great,” Marshall said. “It wasn’t in conservation per se. It is now in current use taxation, so there’d be the land use change penalty coming out of that, but it’s not in other conservation.”

Benavides said he wanted to be clear housing is needed, but this isn’t just development on vacant land. They are in this situation due to the covenant.

“The issue that I have is that people of sound mind work their whole life,” Benavides said. "One way or the other, save their money, save their pennies, have this beautiful land, then they decide 'we are not going to develop this piece of land,' and left it that way in their trust.”

Marshall said, “the record regarding their intent is not clear.”

He also said the intent of the applicant isn’t to disrespect prior generations’ wishes.

Clerk Richard Grenier said he’s been around long enough to know nothing is permanent, but has faith in the Gilford voters who went to the poll and voted the article down in lopsided fashion.

“To me, they spoke clearly when they said 'no,'” Grenier said.

Eddy didn’t think it was that cut and dried, and said he thinks a lot of people didn’t really know exactly what they were voting on, and in turn, voted against it.

Marshall asked the board to make a recommendation.

“We would love any improvement upon the 0-3 last year,” Marshall said.

Benavides and Eddy both said they couldn’t make a motion to recommend it. Anticipating the Sargents would petition an article to the warrant, Benavides recommended they present as much information to the public as possible.

“And when you’re at the deliberative session, and people have those questions, you can already be prepared,” Benavides said.

Benavides made a motion to deny Marshall’s request, which carried with a 3-0 vote.