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Brentwood zoning board grants variance for landlocked 3.7-acre lot, limits easement claims
Summary
The Brentwood Zoning Board of Adjustment approved a variance allowing construction of a single-family home on a 3.7-acre, landlocked parcel (Tax Map 217-083-0000), but placed two conditions: the decision does not create or convey any easement over Mill Falls common land, and the applicant must comply with RSA 674:41 before a building permit may issue.
BRENTWOOD — The Brentwood Zoning Board of Adjustment voted to grant a variance that would allow Riverrun Development LLC to build a single-family home on a 3.7-acre parcel that lacks legal road frontage, the board said during a continued public hearing.
Chair Frank Albbert opened the session and confirmed the petition concerns Tax Map 217-083-0000, where the applicant seeks relief from the ordinance’s 200-foot frontage requirement. Mark Johnson, who said he represents the applicant, told the board the property was created before Brentwood’s zoning rules, that the Mills Falls subdivision plan depicted an access easement and that prior improvements (a driveway apron and utility connections) support the owner’s argument that the lot can be used for a single-family residence.
"The planning board’s conditions and the improvements shown on the plan demonstrate the intent to provide access," Johnson said, defending the application and urging the board to focus on the zoning criteria before them.
Why it matters: Neighbors and the Mill Falls Neighborhood Association (MFNA) opposed the request, arguing the 1935 Marcott easement referenced in deeds expired and cannot be revived by labeling on a subdivision plan. Jennifer Fet, president of the MFNA, read a letter urging denial and formally recorded the association’s denial of permission for Riverrun to cross HOA common land for access.
"The applicant is asking the town of Brentwood to bend zoning laws and property rights to validate its investment," Fet wrote in the letter, which was received by the board and entered into the record.
Legal boundary of the board’s decision: Town counsel (the Mitchell Group) advised the ZBA that determining whether a private easement exists is a civil question outside the board’s jurisdiction. Counsel also told the board to evaluate the petition only on the five statutory variance criteria under RSA 674:33 and not to conflate that decision with issuance of a building permit, which is governed by RSA 674:41 and requires proof of lawful access.
Board action and conditions: After public comment and extended deliberation on each of the five statutory criteria, the board voted that the criteria had been met and approved the variance. The approval included two written conditions provided to staff: (1) the variance "does not create, affirm or convey any right of way to the applicant over the HOA's common space," and (2) the variance "does not relieve the applicant from complying with RSA 674:41" when applying for a building permit.
The vote: The board voted to approve the five criteria and the variance; the motion carried and the conditions were recorded in writing by staff.
What happens next: Approval of the variance relieves the parcel of the 200-foot frontage requirement for zoning purposes only. The applicant must still secure lawful access and satisfy building-permit requirements under RSA 674:41 before a permit to construct may be issued, and any dispute over private easement rights would remain a civil matter between property owners or the HOA and the applicant.
The board completed routine business and adjourned the meeting.
