Candice K. Harvey v. Town of Barrington

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a curious development in this case. Apparently, um, the property owners, um, Ms. Henderson, Mr. And Mrs. Henderson have revoked their permission to have the brief filer defend the appeal on their behalf, and they have not stepped forward to do so themselves. Um, so it was determined by one of us that the oral argument should never nonetheless go forward. And we all agreed. Um, and so you are, you have 15 minutes.

Thank you, your Honor. May it please the court. My name is Dan Hartley. I practice in Hampton with the Casa Law Firm. I'm here on behalf of Candace Harvey. I think there's two issues in this case. One is the scope and creation of the easement, and the second is whether the zoning board can modify through a variance, uh, property right of a property owner. Candace Harvey owns Lot one Zero and she has an access and utility easement on her property benefiting lot one dash one. And basically when you look at this easement, you have to look at the, the party's intent as determined by the facts and circumstances at, at the time it was created. Now it's our position that this easement was created by the plan, which was recorded in 2006, and the deed, which referenced the easement, which was in 2007. The plan states, I mean, sorry, the deed states that it's a 40 foot wide access and utility easement and it references the plan. The plan is more specific. The plan states that the access is for a single lot at a, at one buildable location only. So it's our position that when you interpret this, this, uh, this easement, it's pretty clear that when you talk about the scope of the use of the easement, that the words from the documents themselves are very clear that it's for one single location, only one single lot. Well, what about, what about the articulate way that you have defined the issue? Uh, and that is whether a zoning board or any land use board, uh, subdivision, uh, approving a subdivision which is subsequently recorded, can impair, uh, or define in any way, uh, individual property rights. I my position that after, after the easement is created, that a zoning board has no right whatsoever to impair anybody's property rights at All. Amen. So it's my position that basically that if, if this court allows a zoning board to change party's rights, it's gonna open a Pandora's box at, I can just envision at the beach, imagine that there's two lots on the ocean. There's a little house in the front and there's a big house in the back. And the big house says there's a, there's a view easement. You can't build more than two stories. And the, and that is not only is it in the subdivision plan, but there's also a view easement recorded. Now, under this scenario, what if the, the front house said, well, we wanna go up 60 feet. It's my understanding that in Hampton and the zoning ordinances between 40 and 50 feet, so they're gonna have to seek a variance. So they would go before the, before the zoning board, they'd get a variance for 60 feet and the back property's gonna say, Hey, wait a minute. I've got a view easement, I've got a subdivision plan. Nope, modifiable we that, that doesn't matter. So for clarity, the plan that was recorded in 2006 was approved by the planning board? Yes. The zoning board prior to that had granted a variance because this was a back lot only accessible by the easement. I'm not sure if there was a variance required for the back lot because it was only one lot. Okay. So it wasn't a zoning board back then, it was only the planning board approving the subdivision of the two lots At issue. That's my understanding, but I haven't really investigated that part of the case. Okay. So regardless, when that plan was recorded, it showed access to the back lot through the easement. Correct. It also showed that back lot had a strip of land that comes down and reconnects with, has frontage on, um, route nine? No, that, that strip of land is on my client's property, Not the easement, but on the other side of her property, there's a strip of land that orders her property on the opposite side. I'm not familiar with that. I know both properties front the main road. Right. I think it's because of the top topography of the land that they couldn't get access in. I don't know if it was wet or rocky. Right. But what it was, but they wanted to use the, the access easement. Right. And then the current zoning board decision and or subdivision that would be planning board decision says you're allowed to subdivide access through the easement, but at such point, if a road were put in, then the easement go to the back lots, then the easement goes away. Correct. That was on the, on the plan. And that, and we say that if, if that's part of the, the language of the easement, then certainly the single lot at one billable location is also part of the easement. Right. And so the, this gets kind of fine point, but the part of the planning board's decision, allowing two lots in back if they have their own road frontage, is that something that your client objects to if they're not using the easement? No, not at all. Okay. If the easement's not at issued, the planning board can give them 30 lots. We're only concerned about accessing those 30 lots through our easement. Yeah. When my client bought the property, they were aware of this easement. They were aware that it could access a single lot. So they figured that the traffic would be minimal on the single lot. So when they went for, they actually initially went for more lots, but the, the, the zoning board only gave 'em two. So, so the Zoning board tried to vary the access along the easement to two lots? Yes. They, they, they pushed him down. My client's concerned that it could later be five lots, you know, but They didn't modify the, the size of the easement. Right. They didn't, they didn't say you have to pave it. They didn't. It's the same easements in the same place, in the same size. Yes. But the only thing that the planning board said was if, if you had three lots, you'd have to make it a road that was in the decision itself. They said if we, if we grant, if you get approval for more than two lots, you have to make it a road. And so back to the zoning board. Did they, and then I'll let you go. Um, did the zoning board address this concept? We don't have the minutes of their meeting, but did they actually pay any attention to this Issue? I believe they did. I believe they, they, they modified the, the, the, the note 12. They said we're here by modifying note 12. And we're, so The zoning board modified the planning board note? Yes, they did In 2021, we're talking about, is that right? Yes. Yes. And and that was a decision that wasn't appealed. It was not appealed, your Honor. My clients were on vacation. They went to the first two hearings and then the, the third hearing snuck up on them and they, and they didn't go to that hearing. Um, but when I look at this case, it, it's, what if the, what if the zoning board had said, um, as part of the subdivision plan, the access and utility easement, now that's owned by the intervener. That's owned by the intervener. And then, alright, we're gonna grant access. 'cause we're, we're determining ourselves, we're determining that this access and utility easement, the interveners own it and they grant it. Now, that would be patently wrong, but this is the exact same case. And it brings me back to law school. When I was in first year, probably the first week of law school, I was in real property class. And it always struck me that property is a bundle of rights. And I think that professor even brought in a bunch of sticks to the class. And I don't know why that has always struck me when I, when I attended that, I, I always, that's what I've always liked real estate. So I've always, it's always struck me. So in this case, one of the sticks of my client is that this easement has, is, is, is only burdened by a single lot at one billable location. So this planning board, I mean, sorry, the zoning board has, they, they've taken that stick and they, they've whacked it and they've broken it and they said, no, that's not your bundle of rights. Now your bundle of rights is two lots and two buildable locations. They are, they are depriving my client of her property. But, but the decision that's before us now is a planning board decision. Right. The planning board decision. But the planning board has to determine access. They have to decide that there's access and, and this court has said access is a legal right to pass and repa, they don't have a legal right to pass and repass for two lots no matter what the zoning board says. If the zoning board said that the individual owned the access easement, the planning board would say no, they don't. And the planning board didn't object to the zoning board changing the note on the old plan. Um, I I, I think there's some political aspect to the planning board, and this was a five two decision. Um, it wasn't a seven zero decision. So I, I get the sense that it might've been a FTA complete on this one before it. Um, but they certainly were aware of the issue and they chose to ignore it. And it wasn't, it wasn't like they didn't have the chance to, they where they were, they were so aware of the issue. They said, well, if you get three lots later, you're gonna have to make it a road. So I mean, this was an issue and they decided, yep, there's access and there's access by depriving my client with one of their sticks, one of their rights to this property. And the zoning board has no authority to do that. And the planning board should have sort of looked at that and said, you have no authority to do that. There's no access here. Um, and, and I don't think it's, I don't think it's a heavy lift. You know, some, some people say, well, you know, people on planning boards and zoning boards, they're just regular people and they're not paid usually and, and they're just doing their best. But this is not a heavy lift. It's not a heavy lift to know that you can't change somebody's easement. I I, there's no statutory authority to do that. There's no case law that says you can do that. I don't think it's a heavy lift for the zoning, for the plating board to say, you know what, that's not right. There's only access for one lot. There's two lots no access. Subdivision denied. So, so what is the legal significance of the 2021 ZBA decision and your client's failure to appeal that? I think there's no significance, no significance at all. Because it's the same as if the, the zoning board said that, uh, well lot one is not owned by, not owned by, um, Candace Harvey. Lot one owned is owned by the Hendersons. They could have said that and they could have granted the plan. Well, what would be the effect of that? That would be a nothing. And it's the same thing here. This is my example is a little more extreme, but it's the same thing. They're still depriving my client of her rights in her property. When she purchased this property. She knew she was subject to one lot at one billable location. And now poof, it's gone. Now it's two lots, two billable locations. And, and, and who knows what's gonna happen later. So this is more of a deprivation of rights case than anything. That's it. Thank you. Thank you. Case submitted. Case submitted. Thank you Counsel Court's in recess. Thank you for reminding me of a first week of property class. Right.