Jackson ZBA finds McNeil drainage changes violated soil‑disturbance rule; rescinds $275 fine

The Jackson Zoning Board of Adjustment voted unanimously Oct. 16, 2025, that changes to the drainage and stone pit at 59 Middle Mountain Trail violated the Soil Disturbance provision (Section 4.1.6) of the town zoning ordinance and rescinded a $275 fine against property owners Katherine and David McNeil.

The chairman opened the hearing at 7:30 p.m., noting public notice in the Conway Daily Sun and mailings to abutters. Donald M. Ekberg, Esq., counsel to the applicants, asked the board to separate the question of flooding from the ordinance issue and argued that the source of water flowing onto abutter Jean Goodine’s property had not been established, suggesting it may have originated from development uphill across Middle Mountain Road or from an upstream culvert blocked at an unknown time.

Contractor Tom Rozek of Elevated Excavation acknowledged that the culvert was extended beyond the planned location of the stone pit to the back corner of the McNeil lot, saying he acted out of concern for the site's clay and ledge soils and for the stone pit's absorption performance. Town Engineer Burr Phillips said his pre‑construction site visit indicated the town culvert’s outflow had previously been dispersed across the property rather than channeled; the McNeils’ changes produced a concentrated discharge onto the abutter. Phillips also confirmed there was no written notification from him or Code Enforcement Officer Kevin Bennett to the McNeils or their contractor before the SelectBoard issued its violation and fine letter.

After deliberation the board made four determinations by unanimous vote: that the as‑built changes removed the stone pit intended "to lessen impact on abutting lots" and created a concentrated discharge, violating Section 4.1.6; that the operative language of Section 4.1.6 appears in both the March 10, 2015 and March 11, 2025 versions of the ordinance; that the failure to construct the drainage as specified was sufficient for the violation finding and therefore no finding would be made on unrelated matters; and that the SelectBoard's order did not provide adequate written notice to reasonably give the McNeils actual notice of the issue (citing Town of Swanzey v. Liebeler). Based on that lack of notice and the requirements of RSA 676:17, the board rescinded the $275 fine.

The minutes do not record who moved or seconded the board's motions. The meeting adjourned at approximately 9:00 p.m.

Note on dates: the meeting minutes identify the public hearing as Oct. 16, 2025; the document header also shows a published date of Oct. 27, 2024, an internal inconsistency in the minutes record.