Town Council Tables Nevins Walking Trail Removal

A resolution to remove plans for a walking trail from the Nevins over 55 community was tabled to the next meeting after resident Mike Speltz, a member of the Conservation Committee, noted it involved a conservation easement and resident Greg Carson, an attorney, threatened to file papers with the state attorney general’s office, should the resolution to remove the trail pass the council.

The council, meeting Thursday, March 20, voted to table the matter for further study.

The resolution that was expected to be voted on last week references a petition to “discharge and release the public rights to the walking trail” and noted the Nevins Board of Directors requested Gilcreast Realty Holdings join with it in an amendment to the site plan at the Planning Board to remove the trail. That was granted June 5, 2013.

The resolution also states that the Council was made aware that three units within Nevins have been constructed within the area of the trail easement and that the Council believes it is in the town’s best interest to allow the Nevins site plan as amended by the Planning Board to release Gilcreast Realty Holdings from any obligation to construct the walking trail, and to release any rights the town may have to construct any improvements within the easement.

The resolution also states that Gilcreast would contribute $35,000 to the town as full and final consideration  for the release by the town of all obligations of Gilcreast Realty Holdings and/or its successors in interest as the developer of the Nevins Retirement Community, including the Nevins association of homeowners.

The resolution additionally stated that the town accepts the $35,000 as full and final consideration for the release by the town of all obligations of Gilcreast or its successors, including the homeowners association, release of the town right to construct improvements within the easement, including the walking trail, and consent to the encroachments existing within the easement for units 22, 23 and 31.

The money would be placed in an account dedicated to the improvements and enhancement of neighborhood trails.

At last week’s Council meeting, Attorney Morgan Hollis with the firm Gottesman and Hollis said he and the town’s lawyer, Michael Ramsdell, had discussed the issues surrounding the trail’s removal.

“We did fairly extensive research reviewing the history of how the walking trail came to be, how it was associated with the Nevins project back in 2002 and ’03,” he said. “There was a series of negotiations where the Nevins went from a high density multi-family residential housing to a lower density elderly housing, with the conveyance to the town of a significant development right which the town paid a significant amount of money for,” Hollis said.

Hollis said that at the same time there was a dedication of a public walking trail easement area done by both deed and declaration of restrictions.

“So there are two documents of record dealing with this walking trail. It was part of the approval process, and the public owns rights in the walking trail,” Hollis said.

Hollis said the construction of the 6-foot-wide trail in the easement was to be the obligation of the developer.

“We also discovered in locating this trail, through no fault of anyone but obviously through someone’s fault, three units have encroached in the easement area itself,” Hollis said. “The easement is significantly wider than the walking trail. The encroachments did not come within the area of the walking trail but did come within the easement area.”

Hollis said that after discussion with the town’s counsel, there was no desire of the town to give up the easement rights.

“So we’re requesting a modification of the current resolution from a request that the town discontinue and release all rights of the public walking trail,” he said. “What we have negotiated and discussed and what I’m presenting to you is a proposal in which the town would keep the easement. There would be no conveyance of the easement itself, but the town would release its right to build the walking trail within the easement – that is, the town would not have an obligation to build and would not have a right to build.”

Hollis said the developer and the Nevins homeowners association also would not have an obligation to build the walking trail.

“The developer offered to pay and the offer remains consistent of $19,200 for the walking trail easement,” Hollis said. “That is the amount of money that town staff calculated would be the savings to the developer for not having to build this trail.” The town could use that money to build a trail elsewhere, he said.

Hollis said at the same time they came to an understanding that the encroachments ought to be dealt with, both for the residents who occupy the encroaching homes, and the town that owns the easement, and that there should be some payment for those encroachments.

Hollis suggested the sum of $35,000 as payment for the encroachments.

Councilor Tom Freda said he recollected that Nevins residents didn’t want people walking in their back yards, and said that if the easement remained, even with no walking trail, people would still be able to walk along the easement.

Hollis said that theoretically that could happen if there were an access point and people knew where the easement was, but added that if the trail were not built, the average citizen would not know the location of the easement.

Freda said the town could post it as no trespassing, and Hollis said that the town could do what it wanted with it except build on it.

Carson said the town should be getting more money than what was offered by Hollis on behalf of Nevins and that perhaps a couple more zeroes should be added to the left of the current offering’s decimal point.

He said he was a resident when $2.9 million was voted on to be paid to the original developer, and part of that deal was getting the trail developed around the area.

Town Council Chairman John Farrell responded that the $2.9 million was spent because the developer wanted to build a much larger development and the money was for his not building such a large project.

Speltz reminded the Council that the easement was a conservation easement and that the town could not diminish its value.

“That trail easement, that section of the deed, is clearly labeled as a conservation easement,” he said. “The Attorney General of New Hampshire has published an opinion that says that conservation easements, even ones that are paid for, are in the public trust and as such, an amendment to a conservation easement requires approval by the Attorney General’s office.”

Town Manager Kevin Smith said the town attorney disagreed with Speltz on that matter.

“We contacted the town attorney and what Attorney Ramsdell said is that he does not believe that the original requirement that Nevins build a walking trail was created in the form of a conservation easement,” Smith said. “There is a statute that pertains to walking trails and their discontinuance that we looked at previously. The discontinuance of a walking trail does not require AG approval and I believe the documents are OK as is.”

Carson said that the discontinuance of a walking trail may not need the AG approval, but the way that the easement is described looks like it is a conservation easement and he said that the town should table the matter for further study.

Councilor Jim Butler said he was in favor of tabling the matter until the next meeting.

Carson said that if the Council voted on removing the Nevins trail, “I will be zipping up to Concord or Rockingham Superior Court to file something to see if there really is a conservation easement on that property or not.”

The consensus of the Council was to table the matter until the next meeting on April 7.

Newsletter Updates

Enter your email address below and subscribe to our newsletter