Town awaits next step in San-Ken appeal

SHARON — Both the town and San-Ken Homes have filed briefs with the N.H. Supreme Court regarding San-Ken’s appeal of a lower-court ruling that upheld the Zoning Board’s denial of San-Ken’s proposal to excavate gravel from a 22-acre lot on Nashua Road.

In 2011, landowner Kenny Lehtonen asked the Zoning Board of Adjustment for approval to remove 108,000 cubic yards of gravel in order to level the land for a driveway and a house site at the southern end of the lot. The ZBA denied the request, ruling that a 75-foot setback from wetlands is required, although Lehtonen had proposed excavating up to 25 feet from wetlands areas. Last year, a Superior Court justice ruled that the zoning board’s decision was correct.

In an appeal to the Supreme Court filed in March, attorneys for San-Ken argued that Sharon zoning ordinance provisions provide for a 25-foot buffer zone during excavations 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.

Now the town has responded to the appeal, in a brief filed April 30. The town’s attorney, Gary Kinyon of Keene, wrote that the 75-foot wetlands setback in the town ordinance conflicts with the 25-foot excavation setback, and that the more restrictive 75-foot number should apply. He also wrote that San-Ken should not have an option to replace a natural woodland buffer with a vegetation buffer.

“San-Ken ignores the prohibition in the excavation regulations from removing visual barriers, and the existing woodland in the 75-foot setback is a visual barrier,” Kinyon wrote.

San-Ken’s attorney, Christopher Aslin of Manchester, filed a reply brief on May 20. He stated that the proposed excavation is not actually in the Wetlands Conservation District, which does not extend into wetlands buffers. “Because the proposed excavations are located outside of wetlands, and therefore not with the [Wetlands Conservation District] overlay, the permitted uses of the rural-residential district apply.” Excavation within the rural-residential district is permitted by special exception, Aslin wrote.

The town’s argument that the ordinance prohibits removal of natural woodlands within 75 feet of wetlands is incorrect, Aslin argued. “The town points to nothing that suggests that the 25-foot buffer expressly required by.... the excavation regulations would not provide an adequate visual barrier,” he wrote.

In an email to residents, town officials said the town has no legal right to respond to the May 20 reply brief from San-Ken, and the next step in the case will be either a notice of scheduling for oral arguments or a written decision from the Supreme Court on the appeal.

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