Stoddard v. Stoddard

Sierra Hubbard / Sentinel Staff

Attorney Gary J. Kinyon, representing the Stoddard board of

selectmen in an appeal of a decision by the town’s zoning board of adjustment, makes his case before Judge David W. Ruoff in Cheshire County Superior Court last July.

From appeals of decisions by land-use boards to tax abatements and evictions, towns can wind up in court for a variety of civil cases — and the costs to taxpayers can be wildly unpredictable.

Excluding requests from utility companies for tax abatements, a handful of cases now in Cheshire County Superior Court involve local municipalities. Over the past three fiscal years, some towns have seen legal expenses more than three or four times what they budgeted, while other communities have had relatively quiet years.

Winchester spent more than $90,000 on litigation one year and more than $110,000 the following year, well beyond the town’s $32,000 budget for those expenses. Swanzey, meanwhile, hasn’t used all of its annual legal appropriations since 2016.

Budgeting for courtroom costs is “more of an art form than a science,” according to Stoddard Town Administrator Jim Coffey. It combines looking at active suits, guessing what might come up in the courts and dealing with cases that drop mid-year with little notice. And there’s a balance to strike, too: The town doesn’t want to set aside more taxpayer money than necessary.

“We try not to budget for the absolute worst-case scenario,” he said. “We try to budget based on what we think might happen and taking ... the most likable look at it as possible.”

Steve Dalessio, chairman of Walpole’s board of selectmen, said legal expenses don’t fluctuate too much for the town, though he said the board responds to changes and sets its budget accordingly.

In calendar year 2017, Walpole exceeded its allotment for legal fees of $10,000 for the year by 62 percent, clocking in at $16,252. That year, the town faced planning and zoning board appeals from a real estate company and another from a construction recycling plant.

The board upped its budget for 2018 to $20,000 and spent only $3,250.

For 2019, the budget for legal costs was reeled back to $15,000.

Historically that’s covered the board of selectmen, the zoning board, the planning board and the conservation commission. During budget preparations last year, however, Walpole separated legal expenses for the planning and zoning boards, adding a $1,000 line item for each. Both boards overshot their budgets by a couple hundred dollars.

A Westmoreland resident has appealed a lot subdivision on Wentworth Road in Walpole that the town’s planning board approved in March, and that case has a hearing slated for July, according to court records.

Dalessio, who’s in his sixth year as a selectman, said he doesn’t expect the appeal to push the account over budget.

The town utilizes the Concord-based N.H. Municipal Association, which offers free legal advice to its members, and the land-use boards and commissions are briefed about once a year with a visit from outside legal counsel.

“Periodically, we bring in our town attorney to kind of do a primer, if you will, on things to watch out for … just to keep everybody on their toes and keep them sharp,” Dalessio said, adding that such consultation is less about court appearances and more for guidance and clarification of state law.

In Swanzey, new land-use board members receive plenty of reading materials, including the town’s zoning ordinance, site plan review regulations, board policies and a 100-plus-page handbook from the N.H. Office of Strategic Initiatives.

Planning and Economic Development Director Matthew Bachler serves as the staff liaison to the planning and zoning boards, attending every meeting and offering advice “in case someone is kind of straying from parameters.”

And if an applicant requests a rehearing on a decision, Bachler said part of his role is to explain the implications to the planning or zoning board — including the applicant’s next course of action, which would be the court.

Two Swanzey residents have filed an appeal in superior court of a zoning board decision in February to allow Swanzey Lake Campground to expand its 108 campsites by 36 and put trailer hookups at all of them. That case also has a hearing scheduled in July, according to court documents.

Still, Swanzey Town Administrator Michael Branley said the town has been fortunate to keep its legal expenses relatively low.

In 2016, when Branley remembers fielding a few tax abatements, Swanzey overshot its $25,000 budget by about $2,500.

The board of selectmen increased the legal budget to $35,000 for 2017 and spent about 76 percent of that. Appropriations dropped to $30,000 for 2018 and have stayed there, with the town using about half of that last year and 41 percent so far this year, through April 30.

Branley said the town does its best to plan ahead if appeals or abatements are expected to drag on in court. It’s a difficult task, he added, because “one lawsuit can eat up a lot of our budget.”

But while Swanzey tries to make conservative estimates, Branley noted that legal expenses aren’t optional.

“When the town is defending itself in a lawsuit, that’s an expense we don’t have a choice about,” he said.

Some towns have ended up in the courtroom more often than others.

Stoddard manages three different legal accounts: one for the board of selectmen, one for zoning and another for planning. While the executive account has spilled over budget for the past three fiscal years, that’s been partially offset by underspending in the other two funds.

From July 2016 to June 2017, the board of selectmen exceeded its $20,000 allotment by more than $10,000. Total legal expenses across the three accounts came in at $7,500 over budget, or 31.85 percent.

The following year, the executive account ended 64.09 percent, or $12,818.68, over budget, which hadn’t changed. The zoning board doubled its $2,500 appropriations, but the planning board didn’t pay out anything that year.

Spending decreased this past fiscal year. From July 2018 to June 2019, the board of selectmen overshot the $20,000 mark by nearly $5,000, but under-spending by the two land-use boards left the town’s total over by only $162.89, less than 1 percent.

The year that costs spiked for the zoning board coincides with two appeals in superior court by the board of selectmen. In two separate and unrelated Stoddard v. Stoddard cases, the board of selectmen challenged the zoning board’s decisions and lost.

Coffey, Stoddard’s town administrator, explained that it’s not uncommon for the executive branch to appeal a decision by one of its land-use boards because the board of selectmen enforces the town’s zoning ordinance.

“It shouldn’t be construed as wildly adversarial on a personal level,” he said. “… When we have one board versus the other, there’s no winners and losers in that. It just sorts something out.”

Other town departments are typically pretty frugal, Coffey said, and that helps offset any increases in legal costs.

“In your wallet it’s a significant amount of money, but it’s not enough to buy a cheap car,” he said of the excess spending. “And we’re running a whole town.”

Winchester Town Administrator Karey Miner agreed that the legal expenditures are a small portion of her town’s $4 million budget.

“We make do,” she said of the years when Winchester has spent more than expected on legal costs. “... Some other departments might not be able to pave a road or put up a sign.”

The town separates its land-use boards from the board of selectmen in regard to legal expenses. From July 2016 to June 2017, and again the following year, the executive account had a ceiling of $32,000. The town spent nearly triple that the first year and almost quadruple that in the year ending June 2018, which ended with payments in excess of $110,000.

Among other court cases, the town reached a settlement at the end of 2016 with its then-police chief after a year of litigation.

For the current fiscal year, which ends this month, selectmen’s legal expenses came in under budget with about $3,300 to spare.

The land-use account went over its $20,000 budget the past two fiscal years. Miner pointed out that the account also includes code enforcement, and properties that aren’t maintained can end up in the courts, too.

Over the course of nearly 10 years, the town filed several complaints against two homeowners of a property on Lawrence Street for allegedly violating local ordinances. In July 2017, the town forced their eviction through the Superior Court.

In another legal battle spanning almost a decade, the court last month upheld the Winchester Planning Board’s approval of plans for a gas station, convenience store and Dunkin’ Donuts at a major intersection in town. That follows several years of appeals by a neighboring business, Kulick’s Market, of planning and zoning board approvals for the development, some of which reached the N.H. Supreme Court.

“Residents do speak up on that one,” Miner said. “They don’t like the fact that we’ve spent x-amount of dollars on that when it’s a positive for the town.”

Since that case has previously risen as high as the N.H. Supreme Court, Miner said town officials will keep that in mind as they start to craft the next budget this fall.

While it’s important to educate land-use board members and town officials about the potential legal ramifications of their decisions, Coffey pointed out that those boards can’t let saber-rattling or threats of litigation affect their work.

If he was on the planning or zoning board, Coffey said he “should make a decision based on the facts presented to me, to the best of my ability … and render a judgment without any fear of being sued or without even worrying about it.

“... I don’t think you need to be stupid about it, but you have to make the right decision,” he said.

Sierra Hubbard can be reached at 355-8546 or at shubbard@keenesentinel.com. Follow her on

Twitter at @SierraHubbardKS.