Case Against Town Remanded to Superior Court

The battle over the Pelham Fire Station continues

October 31, 2014

by Diane Chubb

On Oct. 24, the New Hampshire Supreme Court remanded the case regarding the Pelham Fire Station back to Superior Court to make a decision based on merits.

The main question is whether, in constructing the new fire station, the town violated several restrictive covenants that had been placed on the land by the former owners.

The fire station is built on land known as the “Mills Property.” Retired Judge J. Albert Lynch and former business partner Louis Fineman purchased the land in the 1980s. The land, then owned by Elizabeth Mills, was intended to be sold to local developers. When Fineman found out about the proposed deal, he and Lynch determined that the property should be used for town purposes. They purchased the 24-acre property as trustees, intending to sell it to the town.

In 1985, the town purchased 18 acres of the land from Lynch and Fineman for town purposes. As part of the deal, the trustees set forth various conditions for the use of the land. The restrictive covenants included that any building constructed must be of “Colonial architecture … no building shall have a flat or single pitch roof and no building shall exceed two stories in height, excluding the basement.”

Other requirements included the planting of pine or fir trees along the southern property line, and reconstructing and maintaining the stone wall along Marsh Road.

As the remaining trustee, Lynch sued the Town of Pelham in April 2012, claiming that the new fire station violates the covenants. In his suit, he pointed to the flat roof over the garage bays, the trees that were removed to avoid drainage issues, and the demolition of the prior stone wall.

The Superior Court originally dismissed the suit, claiming that Lynch did not have standing to sue. The reason was that as trustee, Lynch did not own any land that benefitted from the covenants; he was not an abutter.

The court said, “aesthetic concerns ‘cannot be considered legitimate where [the trustee] does not own any nearby property.’”

As the fire station construction was already completed, the court also found that equity “favored the unrestricted use of the town’s land as endorsed by its voters, over the aesthetic concerns of the trustee.”

Lynch appealed the decision, arguing that the court did not apply other accepted principles of deed interpretation. The covenants were to be “in gross,” meaning that it is a personal covenant, binding on the town as the owner, rather than the land itself. Moreover, the covenants were intended to benefit the community, and not the owner of a nearby parcel of land.

The New Hampshire Supreme Court reversed the trial court decision. The opinion written by Judge Bassett states, “the parties’ intent can be discerned from both the circumstances surrounding the transfer as well as the plain language of the deed itself.”

Citing the Restatement (Third) of Property: Servitudes, Section 8.1, comment c at 488-89, the court quoted, “Requiring that the person seeking enforcement who does not own benefitted land show some legitimate interest in enforcement of the servitude is intended to provide a substitute means of preventing opportunistic use of servitude violations for extortion or other improper purposes.”

Thus, the court determined that the covenants are in gross. As trustee, Lynch has standing to enforce the covenants, even though he does not have interests in abutting property.

The case has now been remanded to back to the Superior Court for a decision on the merits.

Lynch will try to convince the court that the new fire station is not designed as “colonial architecture,” as specified in the covenants. He will also seek enforcement of the other restrictions in the deed.

Board of Selectman Chair Ed Gleason was disappointed in the Supreme Court ruling. However, the town is ready to defend itself, believing that it has met the requirements set forth in the restrictions on the use of the land in order to prevail.