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San-Ken files appeal over excavation ruling

SHARON — In an appeal filed in New Hampshire Supreme Court on March 14, attorneys for San-Ken Homes argued that a Superior Court judge ruled incorrectly when she upheld the Sharon Zoning Board of Adjustment’s ruling that a proposed excavation of 108,000 cubic yards of gravel from a 22-acre lot on Nashua Road would require a 75-foot setback from wetlands.

In 2011, landowner Kenny Lehtonen asked the Zoning Board of Adjustment for approval to remove the gravel in order to level the land for a driveway and a house site at the southern end of the lot.

His request was denied in November 2011 when the ZBA ruled that the section of the Gridley River that borders the property is navigable, and therefore a setback of 75 feet is required. The board also ruled that no excavation would be permitted within the 75-foot buffer zone. Lehtonen had proposed excavating up to 25 feet from the property line or from wetlands areas.

Last year, Superior Court Justice Jacalyn Colburn ruled that the zoning board was correct in its ruling that the town’s zoning ordinance requires a 75 foot buffer from wetlands for any excavation.

In the appeal to the Supreme Court, San-Ken attorneys wrote that Colburn was incorrect because the ordinance provisions provide for a 25-foot buffer zone during excavations, which is what Lehtonen had proposed and a 75-foot buffer after completion of excavation. They said the 25-foot buffer was expressly permitted under Sharon’s ordinances and the proposed excavation would not disturb wetlands.

“There is no evidence, or even discussion in the record, supporting the contention that earth excavations within 25 feet of wetlands would have any grater impact on wetlands than would excavations separated by 75 feet from the wetlands,” Lehtonen’s attorney’s wrote. They said the Sharon Planning Board had determined that a 25-foot setback from wetlands was adequate when excavation regulations were adopted.

In an email to residents, Sharon officials wrote that the town has 30 days to respond to the brief.

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