Mark Hayward's City Matters: Missing easement opens protected Manchester area to developmentBY MARK HAYWARD
New Hampshire Union Leader
March 19. 2014 6:04PM
A piece of paper can be a powerful thing.
Properly notarized and recorded, it can prove ownership to land, spell out a debt, warrant someone's arrest.
Or protect eagle perches and fish habitat.
But in city files, a key piece of paper — a conservation easement that would preserve a small natural area on the Merrimack River — is missing. To be precise, it was never properly put in place.
So with that protection lacking, owners at The Pointe — a condo project on the Merrimack River just north of the Amoskeag Bridge — have taken steps to build docks on the northern edge of their property.
That's something the conservation easement would have prohibited. Now, people are asking what happened to it.
"Everyone agreed to the easement and handed it to the city. No one knows what happened after that," said Dean DeLaHaye, a Pointe resident who opposes the docks and found extensive references to the easement while researching the condo project's history.
His research shows that — at best — someone at City Hall didn't do his job. First, some background.
The 68-unit complex was built in 2005 at the edge of the Merrimack River, almost at the mouth of Black Brook. In the western shore of the river, the mouth of Black Brook is one of the river's least developed spots. The waters are a favorite of fishermen, and bald eagles perch on nearby trees.
Twice, the builder of The Pointe violated environmental regulations that protect wetlands and eagle habitat. The city, the state Fish and Game Department and the state Wetlands Bureau shut down the project. Eager to start selling condos, GFI Manchester Riverfront LLC agreed to the conservation easement.
Nothing was to be built on the northern side of The Pointe land. Trees were to be replanted. And all condo owners were to be informed of the easement.
Lawyers drafted the easement, but an easement is a legal document that must be accepted by aldermen, signed by the mayor and recorded in the Registry of Deeds. No vote ever took place; no easement was ever recorded.
"The process of getting the easement registered at the Registry of Deeds was placed in the hands of the Planning Department and the issue was resolved at that point in time to the best of my knowledge," wrote Rick Cantu, the city superintendent of environmental protection, in a memo last month.
So what happened?
Pamela Goucher, the chief planner for the city, said the Conservation Commission should have brought the easement to the mayor and aldermen. The Conservation Commission is a volunteer board, and at the time it had no staff to take care of agendas, paperwork or follow-throughs.
"I wasn't handling this. Everyone who was handling this is gone," Goucher said, mentioning the names of former planning director Robert MacKenzie and former planner Terry Harlacher.
Meanwhile, a former member of the Conservation Commission and outspoken advocate for the environment said she thinks the Planning Department intentionally dropped the easement.
"You don't forget about it. It was major. It was two years in the making," she said. A self-described tree hugger, Jane Beaulieu said the neglect of the easement bothers her more than seeing the trees cut and shoreline disturbed.
"The whole thing is so blatant. It's terrible," she said.
So now, The Pointe is going forward with efforts to build docks. The president of the condo association wouldn't be interviewed.
"We really, at this particular moment, will say no comment," said Moe Morin.
DeLaHaye — who has organized opposition to the docks — said the condo association narrowly voted last year to spend up to $60,000 on the project. One of the first things the Pointe's lawyer did was to remove language from a restrictive covenant that prohibited docks on the property, DeLaHaye said.
Now, tensions are sharp at The Pointe.
In a letter I obtained, Pointe residents David and Linda Dutile complained about DeLaHaye's efforts, saying they are costing the association money and hurting condo values. "There is no upside to this negativity," the letter reads.
The project had been on the Manchester Planning Board agenda for this month. But city officials pulled it last month and said the issue was best left to the state.
A wetlands permit is before the DES, where officials there say they intend to follow the original language of the recently annulled restrictive covenant. Like the easement, the covenant allowed docks only on the southern end of the Pointe property, far from the eagle perches and tributary.
At present, plans call for a U-shaped dock, which will be about 50 feet into the river and would draw most use from canoeists and kayakers. But a second phase would have more docks, with rented slips for power boats and jet skis.
DeLaHaye said two nearby condo complexes already have docks. The Pointe should be different.
"Getting up with my coffee, going on my balcony, looking at the shoreline," he said, "that's what I love about this place."
Mark Hayward's City Matters runs Thursdays in the New Hampshire Union Leader and on UnionLeader.com. He can be reached at firstname.lastname@example.org.