Legal battle for Bryant Island

If you own an island, do you have any abutters? Do your "neighbors" have any legal "standing" to try and stop you from building on your island?

Those questions frame just one of many legal issues swirling around the battle over Bryant Island in Lake Wicwas. Issues that are almost certainly going to wind up before a judge in Belknap County Superior Court, and perhaps beyond that venue.

Here's another one: Does a state law that says one can't routinely be granted a building permit to put up a structure on a lot if the street giving access to that lot doesn't meet certain standards apply to your lot if it has no street access at all?

Some lawyers say yes. Some lawyers say no. And all of them are going to bill a lot of hours before this all gets sorted out.

Doug Hentz and Brian Moriarty, doing business as Henmor Development, bought little 3.6-acre Bryant Island — which has also been known as Brandt Island and Chase Island — from Edna Swank of Bedford in May. The island came with a little thumb of land on Chemung Road, located just east of the Pickering Park boat ramp, that was used by the Swank family for access to the island.

Henmor's plan was to subdivide the island into two lots and build two seasonal homes for sale. They made six trips to the Planning Board before their request was conditionally granted.

In September, before the subdivision was approved, Town Code Administrator Bill Edney granted a permit to build one home on the island, conditional on the developers getting an okay from the Board of Selectman to use the Pickering Park boat ramp as a launch site for the men and materials necessary. After several meetings on that subject, permission was given just a couple of weeks ago.

The Lake Wicwas Association — an organization of more than 100 people who own property on and around the lake — has fought Henmor's plan for Bryant Island every step of the way. There apparently have never been any homes or camps on the islands in the 326-acre lake — including on 26-acre Sheep Island — and the association wants to keep it that way. They have retained the Laconia law firm of Normandin, Cheney & O'Neil to represent them.

The Bryant Island file at the Planning Department offices contains dozens of letters pleading for town officials to stop development on the little island. Season residents David and Suzanne Larsen of Lexington, Mass. wrote to say that "island development on this small lake is seen as an assault on a pristine and beautiful gem".

Mary Ann Morse, who told planners her family has been in the area for 200 years, wrote that she was "completely shocked and heartsick to think that someone would consider putting buildings on an island in beautiful Wickwas Lake."

Town officials say they can only apply the zoning laws they have in front of them.

The most recent battleground was the Zoning Board of Adjustment (ZBA). The Lake Wicwas Association and shorefront property owners Dean Dexter and Morse (with her brother Joe Morse) appealed Edneys granting of a building permit for the island to the board but the ZBA unanimously ruled it had no jurisdiction in the case.

Admitting that a party who had been denied a permit could appeal that decision to them, ZBA members — backed by an opinion from town counsel Tim Bates — nonetheless argued there was no provision in law for an appeal to the ZBA of a permit that was granted.

Normandin, Cheney & O'Neil attorneys Robert Dietz and Jim Kennedy have repeatedly told both the Planning Board and the Zoning Board that a state land-use law (RSA 674:41) demands that the town not grant Denmor permission to build on Bryant Island, arguing the law's provisions clearly state that it "supersedes any less stringent local ordinance".

Dietz and Kennedy must now go through the formality of asking the ZBA to reconsider its decision before they can appeal to Superior Court for relief.

RSA 674:41 is called "Erection of Buildings on Streets". And attorneys Dietz and Kennedy — as well as New York attorney Brooks Banker, who has been speaking for the Morse family — have been arguing the Supreme Court has interpreted that statute to mean that no building permit can be issued for any lot in New Hampshire that is not served by a proper street. There are provisions for exceptions, including one whereby townships, by a vote at an annual meeting, may exempt island lots "for islands served exclusively by boats" from the law, but the lawyers have pointed out that Meredith has never exercised its right to adopt that exclusion.

The exact legal advice that town boards have gotten on the matter is not public information, but this summer Planning Board Chairman Herb Vadney told Dietz that he was privy to two legal opinions that held that RSA 674:41 "applies only to islands with streets of them" because that is a literal interpretation of the title of the law: "Erection of Buildings on Streets".

Concord attorney Douglas Gartrell, who has been representing Henmor, has said the same thing.

Interestingly, the language about exceptions to the provisions of RSA 674:41 for island lots was amended just this past summer by a bill sponsored by Senator Carl Johnson of Meredith. The new language makes it possible for a vote of town meeting to except "any lot" from the law requiring acceptable street frontage, not just island lots.

Yesterday, Johnson said he introduced the legislation at the behest of a constituent in the Town of Orford who had been denied a permit to build a cabin on a lot back up in the woods, away from approved roadways.

And then there is the matter of whether or not Henmor's critics even have "standing" to make a legal issue of the development plans for the island.

Gartrell has argued they may not. Noting that Dexter calls himself an abutter to Bryant Island because he owns property on the shoreline some 750-feet away, the attorney asked the Zoning Board, "If he's an abutter, who isn't?"

New Hampshire law (RSA 672:3) defines an abutter as one who shares a lot line "or is directly across a street or stream". Testimony, on the other hand, can be taken in land-use cases can be taken from any person "able to demonstrate that his land will be directly effected by the proposal under consideration".

Dietz has written that to deny his clients standing in the Bryant Island matter would be an "unconstitutional denial of due process under the New Hampshire Constitution".