Alan Marsh stands next to a 1940 Bucyrus Erie tractor on his property in Temple. —FILE PHOTO
Hillsborough Superior Court has sided with the Town of Temple in a dispute with two residents over whether the residents’ collection of antique construction vehicles and equipment constitutes a junkyard, ordering the residents to either remove the vehicles or apply for the necessary land use approvals. used wheel excavator
The approximately 39-acre property at 32 West Road belongs to John Jackson-Marsh and Alan Marsh, and is located in the town’s rural residential and agricultural zones, as well as in the Village Historical Preservation district. Marsh and Jackson-Marsh purchased the property in 2014, and it is home to a large amount of antique construction vehicles.
The town sued Jackson-Marsh and Marsh, alleging that they were in violation of the town’s zoning ordinance and the state’s junkyard statute, and the court conducted a bench trial on Feb. 22 and 23. Scott Hecker, the chair of Temple’s Conservation Commission, said one of the major concerns of neighbors and the town has been the location of the property, which he said is on a rise, with water washing down slopes and into the town’s aquifer.
“My concern from the beginning has been that any kind of placement of machinery on top of a hill where the slopes run into the aquifer is just not appropriate,” Hecker said. “Despite the owners not wanting to call it a junkyard, it is a junkyard, and it is a massive junkyard.”
Jackson-Marsh and Marsh could not be reached for comment.
Hecker expressed praise for the court’s decision, but said those concerns will remain valid if Marsh and Jackson-Marsh ultimately try to pursue town approvals.
“One of the big issues is the potential contamination of people’s wells, and if it happened, what would be done to clean it up,” Hecker said. “Sometimes the contamination of a well is the end of that well, and in Temple, we don’t have an alternative – we don’t have the option of town water.”
Jackson-Marsh and Marsh are members of the Northeast Chapter of the Historical Construction Equipment Association, and sometimes transport pieces to show at exhibits and events. Some of their pieces are functional and some are not. In January 2017, the town issued a notice of violation of the town’s zoning ordinance and the state’s junkyard statute, after receiving multiple complaints.
Following an inspection of the property, the town issued a second notice of violation on April 6, 2018, requiring them to remove the vehicles within 30 days, or to submit an application to the town’s Zoning Board of Adjustment for a special exception to operate a junkyard.
The special exception was applied for in 2018, but denied by the Zoning Board based on impact to surrounding property values. Jackson-Marsh and Marsh appealed that decision to the board, were denied again and did not pursue further appeals through the court.
Though Marsh and Jackson-Marsh have maintained the collection does not constitute a junkyard, as the collection is for their own personal use and not a business, the court disagreed.
“It is undisputed that since the defendants purchased the property in 2014, the number of construction vehicles and equipment in their collection has continued to increase and expand, currently encompassing at least two-and-a-half acres of land on the property,” wrote Judge Charles S. Temple in his order. “While the placement of these items on the property is somewhat organized, the size and breadth of the defendants’ collection cannot be overstated. During its view of the property, the court observed dozens of motor vehicles in various states of disuse, numerous large motor vehicle and mechanical parts, rusted construction equipment, attachments for construction equipment, nearly fifty loose tires, old ferrous and non-ferrous materials, and several large box trailers.”
The state’s junkyard statute includes in its definition any place used for storing and keeping old rubber debris, waste or junked, dismantled or wrecked motor vehicles or parts and scrap metals, among other possible materials. The definition includes motor vehicle junkyards, meaning any place where there are more than two motor vehicles no longer intended or in condition for legal use, or used parts of motor vehicles or parts.
The law also allows up to five antique vehicles or parts of antique vehicles, which are not stored in a structure. The court concluded that the property “vastly exceeds” the five-vehicle limit.
The court concluded that the construction equipment fit the definition of vehicles, and that while some pieces were still functional, it was a small portion of the overall collection. The court found that while some of the equipment might be brought to a usable state, Marsh and Jackson-Marsh did not own all the parts needed to do so, and while the parts could be attached and function for their intended use, Marsh and Jackson-Marsh did not own every piece of equipment the parts were meant for.
The court ordered the defendants to bring the property in compliance with state law and the town’s zoning ordinance by either removing all material which constitutes a junkyard, or apply for the necessary land use approvals, including a special exception, site plan approval and license, within 30 days. If Jackson-Marsh and Marsh fail to comply with the orders, the town can impose a civil fine of up to $50 per day that the violation continues.
The town also sought the imposition of civil fines, up to $275 per day for the violations of the zoning ordinance, which have continued since May 16, 2019, the date of the most-recent notice violation, through April 3, 2022 – a total of $389,950 in fines and penalties. The court declined to impose those fines.
“The main goal of the town’s present action is to remedy the condition of the property and current land use violations. This order will accomplish those goals. Additionally, to impose such steep fines on the defendants will likely make it more financially difficult for them to bring the property into conformity with the land use requirements, consistent with the terms of this order,” Judge Temple wrote.
The court did order Marsh and Jackson-Marsh to pay “reasonable” attorney’s fees on behalf of the Town of Temple, and ordered the town to submit a full accounting of its attorney’s fees and costs within 60 days for compensation.
Ashley Saari can be reached at 603-924-7172 ext. 244 or asaari@ledgertranscript.com. She’s on Twitter @AshleySaariMLT.
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