Governor's Island lot dispute back before ZBA on Tuesday night

By denying Barbara and Edward Aichinger the variance that would have turned their property on Governor's Island from one lot into two, the Zoning Board of Adjustment ensured that it will go at least one more round with the couple when they return to the board this week.

Along with asking the ZBA to reconsider its decision, the Aichingers have appealed an administrative ruling by John Ayer, director of Planning and Land Use, that the property is one lot. The board will hear the Aichingers' appeal of Ayer's ruling when it meets Tuesday. By overturning Ayer's ruling, the board would spare itself from having to reconsider its own decision to deny the variance.

Meanwhile, whatever the ZBA decides, the case will likely wind up in Superior Court. The Aichingers will appeal if the board fails to reverse Ayer's decision or grant the variance while their next door neighbors, Glen and Rita Sutton of 548 Edgewater Drive, will appeal if it does either.

After more than a year of negotiation and litigation, the Aichingers find themselves with two homes — each worth more than $800,000 — and two mortgages on one lot, without discrete collateral for either and with clouded titles to both.

In the spring of 2007, the Aichingers began work at their property on Edgewater Drive, which they believed consisted of two lots , both less than the minimum one acre — one at 554 Edgewater Drive of 0.67-acres and one at 558 Edgewater Drive of 0.57-acres. They planned to build on both lots with the intention of selling one home to pay for the other.

Several months earlier Planning Director John Ayer had advised the Aichingers that they owned two lots. However, in May 2007, after work was well underway, he reversed his opinion on the advice of town counsel Walter Mitchell. Mitchell concluded that the two lots were merged into one in accordance with the so-called "Nighswander Rule" because they were both under the one-acre minimum required. Enshrined in the zoning ordinance (9.1.1), the "rule" stipulates that "when two (2) or more lots of record have the same owner and are contiguous, and one (1) or more of the lots is nonconforming to this ordinance as to size, dimension or frontage, the owner shall be required to merge all contiguous, nonconforming lots with contiguous lots under similar ownership until such contiguous, nonconforming lots are made conforming."

The Aichingers appealed to the selectmen, who in June entered an agreement affirming that the property consisted of two lots in hopes of avoiding litigation. But, the Suttons challenged the agreement in Belknap County Superior Court. In July the court ruled that the selectmen lacked the authority to undo the merger of the two lots, but upheld the building permits for the construction of two residences. Both the Aichingers and Sutton have appealed to the New Hampshire Supreme Court. The Aichingers have challenged the decision to strike down their agreement with the selectmen and the Suttons the decision to uphold the building permits.

In asking the ZBA to reconsider its denial of the variance, attorney Pat Wood, representing the Aichingers, argues that the board either failed to support its decision with facts or reached conclusions contrary to the facts.

The ZBA found that the town has "a method to eliminate small lots" and recognizing the property as two lots "would put the lots back into smaller sizes and change the concept of what Gilford should be." Wood points out that in a number of cases in recent years the Planning Department has divided, or "demerged," adjoining lots of "substandard size" into separate parcels. Barbara Aichinger compiled a list of more than 20 properties where past mergers have been reversed.

The board rejected the Aichinger's argument that treating the property as one lot imposed a financial hardship, ruling "that is not a (type of) hardship to be considered." However, Wood refers to a recent decision by the New Hampshire Supreme Court where, in dealing with an area variance, the justices held that "we also consider whether an area variance is required to avoid an undue financial burden on the landowner." According to the most recent assessments, the property is significantly more valuable as two lots than as one. In 2007, the assessed value of the property as two lots was $2,074, 590, $570,000, or 28-percent, more than when the property was assessed as one lot this year. As well as representing a financial hardship, Wood contends that the reduced value of the merged lot directly contradicts the ZBA's finding that dividing the property into smaller lots would diminish the value of nearby lots. Furthermore, he insisted the board that dividing the property into two lots would not alter the character of the neighborhood and reminded the board that there are a great many waterfront lots on Governor's Island, with residences of comparable size and value served by septic systems and wells.

Finally, the ZBA held that granting the variance would "change the idea of why the Town of Gilford has ordinances," a conclusion Wood remarks "totally ignores the constitutional basis and framework within which all municipal planning and zoning operates and the concepts that separate our great country from places like the Soviet Union or China — the rights of owners of property are protected from unreasonable and confiscatory actions of government." He explains that the Aichingers did not ask the board to ignore the zoning ordinance, but instead requested a variance, which is "a mechanism for the Town to address situations in which the application of the provisions of the Zoning Ordinance to a particular piece of property is too harsh and some relief to the land owner should be granted."