- Re:Eminent Domain Taking of Brummitt Court - Wolfeboro Community Forums

VOTE NO WARRANT ARTICLE #28

My name is Frank Sykes and I own Brummitt Court. A lot of people think it's a town road but it's not. It's been a private road since its inception.

Warrant Article 28 purports to create a public highway over our land. The Town is without legal authority to take our property by virtue of this warrant article. To the extent the Town seeks to take our property on the basis of this warrant article, the Town will be violating the statutory law of New Hampshire, the New Hampshire Constitution as well as violating the United States Constitutions fifth & 14th Ammendments which protects our rights to life, liberty and the right to own property.

We will vigorously defend any such unlawful taking of our property and will seek to recover from the Town our costs in mounting such a defense.

If the Town were to proceed based solely on Article 28, that would mean by a simple town meeting vote any person in Wolfeboro could have his/her property taken by the Town Government. Mortgage covenants would be broken and homeowners put in default of their mortgages upon a simple vote at town meeting. This is wrong in every respect and is a result which is contrary to basic notions of fair play and to the core values and constitutional rights we have as private property owners.

In our case, Brummitt Court was the subject of a petition signed by 4 citizens which was received by the Board of Selectmen. We as owners of the property who are directly affected by the petition, expected to receive notice of a hearing on the petition. We expected to be able to produce evidence at the hearing which would clearly establish our rights under the Constitution and provide us with just compensation..

Instead, imagine my wife's surprise, when by happenstance, Cathy saw there was a warrant article purportedly taking our property on Wolfeboro.net and then later confirmed same in the Granite State News. We have never received any notification from the Town nor opportunity to be heard.

Under NH law, Warrant Article 28 does not create legal authority for the Town to take our property. The legal path to achieve that result is the statutory layout process eventually ending in a Town Vote not beginning with a town vote. Article 28, whether amended or not at Town Meeting, must be read as being subject to the layout and Eminent Domain process.

We should not be forced to spend any more of our resources to vindicate this clear legal right, nor should the taxpayers be asked to vote on something they know nothing about and have no idea of the ultimate cost.

If you vote to go down this slippery slope and give the Board of Selectmen the ability to take our property then BEWARE - you may be next.

Small as it is, a message like this will likely change just enough votes to save your property. This is just wrong-headed by the town.

What does your title insurance company have to say about this? They would have a survey.

We have all sorts of surveys and deeds - the issue is the town never notified us - I read it here on Wolfeboro.net - Thank god.

We at least knew ahead of time enough to call our land use lawyer who basically crafted the statement we posted here and read last night at deliberative session. But then again it costs me hundreds, maybe more then $1,000 to have my lawyer educate the town counsel who just didn't get it.

Kind of like those contempt charges they brought against us last summer for having a yard sale and again it cost me hundreds if not thousands to have our land use attorney educate the town attorney that we could indeed have yard sales just like everyone else in town but of course the BOS won't sign the final agreement because they're too busy holding it over our heads I guess. It's been sitting on their to do list for more then 5 weeks.

Why does the town keep doing these illegal things and think they can get away with them? Do they think noone will notice?

I think it's because our Town Counsel Mark Puffer doesn't tell them to stop. He allows them to keep steam-rolling along!

I was wondering, does the town maintain and plow the road on the warrant?

Marty Bilafer asked us to last year and we said yes. They didn't ask this year.

Is the area in question in article 28 part of a "village district" as defined in RSA 52:1?

If not then town must follow 231:28 Conditional Layout for Existing Private Rights-of-Way or Class VI Highways and therefore Article 28 can not yet be voted at Town Meeting.

If it is under RSA 52:1 I(m) then it still can't be voted at Town Meeting at this time!!! It must however be recorded at the Town Clerk's office.

jmho

ARTICLE 28: Acceptance of Brummitt Court To see whether the Town will vote to accept Brummitt Court as a Town highway, from the northerly sideline of South Main Street to the southerly end of Cropley Hill Road. The width of Brummitt Court shall be 12.5 feet on either side of the centerline of Brummitt Court, as it now exists. (Recommended by the Board of Selectmen)

1) Selectmen can not enter this petition. (Recommended by the Board of Selectmen)

2) Doesn't "the southerly end of Cropley Hill Road" already end at "the northerly sideline of South Main Street"? I thought Brummitt Court was North of and parallel to South Main.

It is not in a "village district". I don't think Wolfeboro has any village districts. A vilage district has it own budge process and tax rate on top of the tax rate. For example, Ossipee has several fire precincts which have their own tax rates on top of the town's tax.

This doesn't sound like an Eminent Domaine taking, but rather abutters to a private road asking for it to be accepted as a town road . . similar to what Feildstone Road(place) is asking. Since there are only , what, 3 or 4 abutters, then a majority vote of the abutters would win the right to ask the town to accept. Anyone know any more, I can't find the RSA that deals with this.

QUOTE:
RI Swamp Yankee wrote:
[quote
2) Doesn't "the southerly end of Cropley Hill Road" already end at "the northerly sideline of South Main Street"? I thought Brummitt Court was North of and parallel to South Main.[/quote]

I don't have the map but I think the road from Lehner street to South main street is split part way in, and half is called Brummit court and half is called Cropley hill. There is no "side" or other street or courtyard. If you didn't know they were two "roads" you wouldn't be able to tell.

UV is right - Brummimtt Cour runs down alongside our barn and connects South Main with Cropley.

The issue we have is that I read about this taking here on line and then confirmed it in the GSN.

The Warrant Article as it was written and then ammended called for a 25' road and there isn't 25 feet between our barn and the beuaty shop next door, so I interpret this to mean the barn would have to come down which would be a said day for Wolfeboro, needless to say us.

The proper procedure is to follow the layout process, which calls for notifying the owners, abutters, mortgager holders etc. running public ads and hearings and THEN, following good planning, set up a road and offer just compensation which then can be challeneged with the Board of Tax and Land Appeals and then in the FINAL step go to the voters and ask if they want to pay for that road.

Unfortunately the BOS has jumped right to the end step.

With Fieldstone Road, the owners of the road have asked the town to accept it. We haven't.

The thing that makes me mad is that last fall the BOS ran one ad in the GSN and said there would be a hearing in 2 weeks rather then 30 days as required. They didn't notify us or or mortgage company or abutters, so I called the lawyer and our lawyer spent a good amount of time educating Mark Puffer (Town Counsel) the proper procedure. We never heard another thing. Then I read it here. The BOS won't even say hello to us, in fact Bob Reid cut in line in front of me to register the other night for his voting "W".

The BOS just don't want to use those words EMINENT DOMAIN because there isn't a Yankee in New England that doesn't cringe when they think they are being robbed by their local government. If they gave us the amount of money that this property represents (1/3 of our property) we probably wouldn't mind. But we've already spent more on lawyers educating the town counsel then we'll probably ever get from the taking and we haven't even begun the proper layout process.

And, at Deliberative Session the other day I raised the question about if the BOS have a signed P&S on the farm they want for the sewer infiltration system and they said NO which probably means that will end in an Eminent Domain taking too. The Queen of Control thinks she can take anyone's property she wants.

QUOTE:
Dragonfly wrote:
With Fieldstone Road, the owners of the road have asked the town to accept it. We haven't.

That's what I asked --maybe you haven't, but have the other abutters? A majority of abbutters?

One abutter and 3 renters who live on Cropley Hill as far as I know. None of my other abutters or taxpayers in town have signed the petition.

So maybe next year I'll ask to take Linda Murray's waterfront property on Wentworth. It'd make a nice park for the kids. I'm sure I could get four of my renters to agree to sign a petition.

uneValkyrie wrote:

QUOTE:
This doesn't sound like an Eminent Domaine taking, but rather abutters to a private road asking for it to be accepted as a town road . . similar to what Feildstone Road(place) is asking. Since there are only , what, 3 or 4 abutters, then a majority vote of the abutters would win the right to ask the town to accept. Anyone know any more, I can't find the RSA that deals with this.

The difference is that Fiedlstone Road is owned by all the abutters whereas Brummitt Court is owned by my husband Frank Sykes. Big difference!

Here is an image from DeLorme, which often gets the roads wrong. Delorm shows Cropley Hill Road as going all the way to South Main.



I think the piece marked in red is what DF (and article 28) is referring to, please correct me if I am wrong.

The 3 renters have no standing in the issue, so it is one abutter (property owner) that has some standing in the issue. Under RSA 231 the town must initiate ED before they can consider a warent article. Also under RSA 231, the town must pay all costs to prove they own, or don't own, the property. They may also be obligated to pay DF's legal costs.

Disclaimer: the above does not constitute legal advice and is provided as opinion only. The person offering the opinion is not licensed to practice law in the State of New Hampshire.

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I believe Ms. Silk stated at the Delib Session that the Town has 'maintained' Brummitt Court over the years by plowing and filling holes, but now the Town has stopped 'maintenance' since 'this situation has come up'.
Is this correct?
Isn't the change to the status quo a form of retribution? Is that change legal?

W