Tom and Ginny Chrisenton can begin construction on a roughly 160-square-foot woodshed after the Zoning Board overturned a moratorium Monday preventing the approval of building permits on lots accessed by Western Way, a private road maintained by the Chrisentons.

The Chrisentons came before the Zoning Board to appeal the rejection of a building permit for the shed, in which the Select Board and building inspector gave the moratorium as reason for the denial. The 2021 moratorium states the initial subdivision plan for the lots adjacent to Western Way was erroneously approved by the Planning Board without consideration of Western Way’s construction.

Lyndeborough’s zoning ordinance indicates that the access road should be constructed to the minimum standards of all town roads, and the road should be approved by the town engineer and code enforcement officer. Western Way is a dirt road that doesn’t officially meet the standards, and the moratorium states that once the road is built to town standards and approved by a third party, the moratorium would be lifted and permits approved.

The Chrisentons maintained that, while not officially approved by the town, Western Way has been maintained beyond the standards of a town road, and pointed to several instances when large, heavy trucks used the road. Additionally, since the lots were approved by the Planning Board in 2008 and no corrective action was taken by the Select Board within 30 days, they maintained the approval of the lots could not be reversed.

They also argued that, since the lots were dedicated as conservation land in 2022 in accordance with zoning ordinance 404.10, the subdivision is only beholden to that section, which does not have a road-quality requirement. The Select Board contends that Section 404.10 is subordinate to Section 404.00, which does have a road quality requirement.

“The permit moratorium enacted by the Select Board is discriminatory – it’s textbook selective enforcement,” said the Christentons’ lawyer, Will Reddington. “We went around to other private roads in town; they’re all less than what’s required in minimum town standards.”

Reddington noted that these other private roads are not subject to a moratorium, and permits continue to be issued. 

Attorney Chris Drescher, representing the Select Board, conceded that the moratorium was selective enforcement, but that it was still in the Select Board’s power to enact it. 

“As for this permit moratorium being selective enforcement – yeah, that’s what the Select Board can do. That’s what code enforcement is. It’s selective enforcement; it’s discretionary.” Drescher said.

Drescher added that, while the 2008 Planning Board did approve the initial subdivision plan, the board was not qualified to determine the quality of a road’s engineering.

“And the notion that we’re challenging a plan after the 30-day appeal period? We’re not challenging the plan,” he said. “What we’re doing is saying that the road is still subject to the ordinance.”

“The most central issue, for me, is that this plan was approved by the Planning Board in 2008, and I don’t believe that  [the Select Board has] the ability for a moratorium,” Zoning Board Chairman Richard Roy said.

Ultimately, a majority of the board agreed that the moratorium represented selective enforcement unfairly targeting Western Way residents, and voted 4-1 to overturn the building permit denial and the moratorium.

The Select Board has 30 days to appeal the zoning board’s Monday night decision.