He said what?????

i-dont-know Sometimes you hear or read things that just can’t be true!

On Juniper Ridge we are dealing with the issue of a home owner building a motocross tack on the rather small piece of property in the Village Proper residential zone.

One neighbor wanted to build a fence because of the noise and dust nuisance. The town actually had to vacate a town owned Right of Way, give the property to the owner so he could erect a barrier fence to wall himself off from the intrusion.

I am the other abutting neighbor. I asked how this track is even allowable under the zoning ordinance? motocross-from-the-desk-of-dr The Supreme Court has ruled in Forster v. Henniker that all buildings and use must be accessory and customarily incidental to the primary use. The court ruled that customarily incidental means that is has to be, ““[I]ncidental” and “subordinate” incorporate the requirement that the accessory use be minor in relation to the primary use and that it bear a reasonable relationship to that use. Id.; see Marchand v. Town of Hudson, 147 N.H. 380, 383 (2001). “[C]ustomarily” imposes an additional requirement that the accessory use “has commonly, habitually and by long practice been established as reasonably associated with the primary . . . use” in the local area.”

The court goes on to state the following; ““While the strength or degree of the customary or habitual association does not lend itself to definition by formula, and while the combination need not occur in a majority of instances of the principal use, the uses must be associated with a frequency that is substantial enough to rise above rarity.” Alfond, 129 N.H. at 29 (citation omitted).”

The first response that I was able to get out of the Select Board Chairman was a rejection because there was no commercial activity being conducted at this motocross track. I didn’t ask about that!

The next was the “not a nuisance” no violation response… I didn’t ask about nuisance. How about we apply the Supreme Court’s ruling regarding accessory use doctrine to everybody????

This is unbelievable folks…if it wasn’t on paper I would not believe it myself! legal-opinion-motocross-track

 

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