Resident Seeks AG’s Ruling on Removing Nevins Walking Trail

Conservation Commission member Mike Speltz, acting as a private citizen, has sent a letter to Terry Knowles of the Charitable Trusts Unit of the state Attorney General’s office to seek clarification regarding the removal of a walking trail at the Nevins over 55 community.

“The Planning Board approved a modification to the subdivision approval, which allowed the developer to take the trail off the plan, and they kicked it to the Town Council for what the reimbursement should be,” Speltz told the Conservation Commission on Tuesday, March 25. He said the developer offered $19,000 for the trail removal, and at the Town Council, it was noted that town attorney Michael Ramsdell and Morgan Hollis, attorney for Nevins, had come up with an agreement to pay the town $35,000 for buildings that are encroaching on the easement, with the money to be used for improvement of neighborhood trails.

He noted that at the March 20 Council meeting, he and resident Greg Carson, a lawyer, objected to the proposed solution, as reported in the Londonderry Times.

“They are not only asking that we drop the footprint of the three houses that are encroaching on the easement. The proposal is that we carve those out of the easement, so now you have an easement that is 25 feet wide with little niches in three places, but also that the town would relinquish its right to public access and to build a trail,” Speltz said.

Speltz said the value that is lost on the easement is not just the loss of the trail but also the area lost to the encroachments.

The Town Council tabled the matter to its April 7 meeting.

Speltz said he alerted town staff and Town Manager Kevin Smith to the potential problem that when a conservation easement is amended that is considered in the public trust and was donated or is held by a municipality, everyone in New Hampshire has an interest.

“Therefore the Attorney General of the state has to approve an amendment,” Speltz said.

Speltz noted that Smith brought in Ramsdell, who interpreted the matter as instead involving dis-establishment of the trail, not giving up ownership of the land, and thus not requiring the Attorney General’s approval.

This disagreement prompted Speltz’s letter to the Attorney General’s office.

“I laid out the facts and I said, ‘who’s right here? Am I right in thinking that this is subject to your review or not?’” Speltz said.

He said the Attorney General’s office has a guide regarding amending easements, and its thrust is that the public interest can be no worse off after the amendment.

“There has to be either no net change in conservation value or increase in conservation value, and I think the proposal fails on that account because it doesn’t make anything better, it makes it worse. We lose the trail and a few square feet in places where there is a house,” Speltz said.

Speltz said that as the matter stands, it will be reconsidered by the Town Council on April 7. He said if he has not heard back from Knowles, he will tell the Council that it needs to get an opinion. It would be up to the Council to decide whether to get an opinion, delay a decision further, or proceed on its own.

Chairman Deb Lievens said that even if the encroachment were a few square feet, it would be more than that because “you don’t want woods right next your house.”

Speltz said that adds to the problem because the way he reads the easement, no cutting is allowed.

Commissioner Truda Bloom asked how the amount of money was arrived at.

“In my view, it would have to be appraised by a disinterested third party, however staff tried to do that and the applicant made inquiries into it and the cost of doing a complicated appraisal like that would exceed the value of the appraisal, so the two lawyers simply haggled and came up with $35,000,” Speltz said.

He said that in his view, the appraisal would have to include the lost opportunity to build a trail.

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