Sanbornton legal fees battle

A pair of legal disputes between private citizens and the Planning Board has led to a disagreement between the board and the Board of Selectmen legal expenses.

The possible resolution of the issue could be to allow the Planning Board to control their own legal expenses in the future. “That’s how it’s done in most communities,” said Planning Board Chairman Helmut Busack. “Next year we’re going to ask for a line item in our budget for legal expenses, which is what most planning boards have.”

Selectboard Chairman Patsy Wells agreed that’s probably the best solution to the disagreement that arose recently.

“The Planning Board has he right to go to the people to ask for a line item for their own legal expenses and have it voted on at Town Meeting,” she said.

Right now, the town’s legal fees are paid through the general budget, which is under the control of the selectmen. The town’s legal counsel is Christopher Boldt of Exeter and Portsmouth.

The financial issue came to the forefront earlier this year after two private citizens sued both the Planning Board and the Town of Sanbornton over Planning Board decisions. Area resident Rick Lepene and his company filed his legal action after the board turned down his company’s proposal to build a $10 million multi-building senior/handicapped cluster-housing development off Morrison Road. Lepene says his Country Oaks Farm project was eligible under the town’s “elderly and handicapped housing” zoning ordinance, which restricts residents to couples that have at least one spouse who is 55 years old or older, and/or handicapped people. (Residents revoked that provision in voted March 2005.)

By a 3-2 vote, the board turned down Lapene’s proposal, calling the area “premature fore (the) development.” The members raised questions about the adequacy of the Class V roads in the area, the lack of sidewalks, the need for more amenities for handicapped people, parking problems and other issues.

Lepene took the decision to Belknap County Superior Court and, in the fall, the Planning Board asked the selectmen for permission to hire attorney Bernie Waugh Jr. of Lebanon to work on the case. Waugh, who was involved in the recent Alton case with New Hampshire International Speedway owner Robert Bahre and his desire to put an auto museum in a building adjacent to his Lake Winnipesaukee waterfront mansion, is considered an expert in state land use issues.

The selectmen discussed the idea and agreed to allow Waugh, rather than Boldt, handle the case. (A hearing on the case was held last month and a decision on the Planning Board’s ruling is expected by the end of the summer.)

Then in March, another suit was filed against the Planning Board and the Selectboard. According to papers filed in the Belknap County Superior Court, Peter and Christine Thompson, and John and Donna Thompson, are suing because the Planning Board refused to grant them permission to turn their 35-acres of land into a 13-lot subdivision. The Thompsons claim that the board is outside its authority because the development fits the “maximum density” allowed under the town’s zoning ordinance.

It was at this time that Planning Board Chairman Busack wrote a memo to the selectmen saying his board wanted to hire attorney Waugh to handle this case as well, and that he expected the Selectboard’s to support its decision. He argued that the Planning Board is an autonomous board under state law. The memo, which is in Town Hall records, says the Planning Board should be allowed to hire its own attorney “now and forever.”

At a meeting in May, the selectmen questioned the idea of the Planning Board hiring its own attorneys because the board does not currently have control over any legal funds.

Selectboard Chairman Wells said she would support hiring Waugh for the Thompson case, but she did not want the Planning Board to understand that she agreed with the memo. She said as long as the selectmen had control over the town’s legal fees it was their responsibility to make the final decision. “After these legal cases have taken their course, then the two boards can discuss together how we’ll handle things,” she said. “Until then we’ll do it on a case-by-case basis.”

The other selectmen agreed.

As it turned out, attorney Waugh was not able to take on the Thompson case immediately, which led to further legal action against the town.

Attorney William Philpot, who represents the Thompsons, told the court in legal papers that the family members had originally submitted their plans in October 2004 and that it was unfair to make them wait any longer. “For over 18 months there was little or no movement from the Planning Board relative to the approval of their project,” he argued. “The actions over the 18 months has exemplified either a high degree of bad faith or, at the very least, gross negligence in the decision making (process.)”

The legal dispute couldn’t have come at a worse time, said Town Administrator Bruce Kneuer. “All of this is being compounded by the fact that on Wednesday, May 24, our part-time Planner David Lorch resigned effectively immediately. He would have been the one who would normally be working with the attorney — but Mr. Waugh is unable to get started on the case right away anyway.”

In Waugh’s absence, Boldt filed a request with the court delay a hearing from later this summer until October. Thompson’s lawyer has objected to the delay and a hearing on the situation is scheduled for August.

According to Kneuer, the town’s normal annual legal budget is set at about $40,000; the figure is established by the state’s Department of Revenue Administration and is based on tax base and other factors, he said.

“But we’ve spent more than that every year since I’ve been here,” Kneuer said. “The problem is it’s unpredictable. It’s not like road salt where you can estimate how much you’ll need. You just don’t know.”?So far in 2006 Sanbornton has spent about $28,000 in legal fees. That figure is likely to go up before the year is over, if only because of the Lepene and the Thompson cases.