Filed

File Date: 9/13/2024 7:38 PM

Grafton Superior Court
E-Filed Document

STATE OF NEW HAMPSHIRE

GRAFTON COUNTY, SS. SUPERIOR COURT

XYZ Dairy, LLC

v.

The City of Lebanon, New Hampshire

and

Calvin Hunnewell, in his official capacity as

Building Inspector for the City of Lebanon, New Hampshire

215-2024-CV-00311
Docket No. _______________

COMPLAINT FOR TRO AND PRELIMINARY AND PERMANENT INJUNCTION ON

THE BASIS OF MUNICIPAL ESTOPPEL

(Jury Trial Demanded)

(Evidentiary Hearing Requested)

The Parties

1. Plaintiff XYZ Dairy, LLC (“XYZ”), is a Delaware Limited Liability

Company, with a physical address of 57 Main Street, West Lebanon, New Hampshire, 03784.

2. XYZ Dairy, LLC is engaged in the business of real estate development.

3. Defendant City of Lebanon, New Hampshire (“City of Lebanon”) is a municipal

corporation with a physical address of 51 North Park Street, Lebanon, New Hampshire, 03766.

4. Defendant Calvin Hunnewell (the “Building Inspector”) is the former Building

Inspector of the City of Lebanon, New Hampshire, and, sued here in his official capacity, has a

This is a Service Document For Case: 215-2024-CV-00311

Grafton Superior Court
9/19/2024 12:10 PM
physical address of 51 North Park Street, Lebanon, New Hampshire, 03766.

Jurisdiction and Venue

5. This Court has jurisdiction pursuant to N.H. RSA 491:7

6. Venue is proper in Grafton County Superior Court pursuant to N.H. RSA 507:9.

Facts

7. The City of Lebanon’s Building Inspector Calvin Hunnewell issued Building

Permit #2016-00293 (the “Building Permit”) to XYZ on December 31, 2019. See Exh. 1.

8. The Building Permit authorized XYZ to develop a “[n]ew mixed use commercial

building within Lot #1 of the River Park subdivision” located at 1 River Park Drive (Tax Map

44, Lot 21) in West Lebanon, New Hampshire (hereinafter “River Park”). See id.

9. XYZ paid the City of Lebanon $90,492.00 for the Building Permit. See id.

10. The “Description of Work” on the Building Permit states: “New mixed-use

commercial building within Lot #1 of the River Park subdivision.” See id. The planned use was

a complicated life sciences building with research laboratory space, requiring a multi-faceted

planning and development process.

11. The Building Permit contained only the following five standard conditions of

approval to be satisfied at various points during the construction process, with no stated

deadlines for completion or other requirements except that “work shall not proceed until the City

inspectors have approved the following stages of construction:

(1) Foundation footings, forms and reinforcements. Lot pins must be in place at this
inspection to assure the setback requirements are met. If the pins are not set and the
setbacks cannot be verified, the construction will not be approved or allowed to
continue. Mistakes in the location of boundary lines are the sole responsibility of the
owner. DO NOT POUR CONCRETE UNTIL THE ABOVE HAS BEEN
APPROVED!
(2) Foundation insulation, waterproofing, and drainage, prior to backfilling.
(3) Structural rough frame, rough electrical and rough plumbing, prior to covering.

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 (4) Prior to concealing any work authorized under this permit.
(5) Final inspection for Certificate of Occupancy, to include plumbing, heating,
electrical, and any other code issue or miscellaneous item as applicable to the project,
including site improvements. PLEASE SCHEDULE THIS AT LEAST 5 DAYS
IN ADVANCE. A building or structure shall not be used or occupied in while
or in part until a CERTIFICATE OF OCCUPANCY has been issued.
See id.

12. Section 105.5 of the New Hampshire Building Code, which adopts the language

of the International Building Code, states, in its entirety:

“Every permit issued shall become invalid unless the work on the site authorized by
such permit is commenced within 180 days after its issuance, or if the work authorized
on the site by such permit is suspended or abandoned for a period of 180 days after
the time the work is commenced. The building official is authorized to grant, in writing,
one or more extensions for time, for periods not more than 180 days each. The extension
shall be requested in writing and justifiable cause demonstrated.”

13. In response to a written extension request from XYZ dated December 9, 2021

necessitated by the Covid-19 pandemic, the Building Inspector approved a 180-day extension of

the Building Permit by memo dated January 18, 2022.

14. The Building Inspector’s January 18, 2022 approval memo acknowledged that the

COVID-19 pandemic represented adequate justification for granting an extension of the Building

Permit through July 17, 2022.

15. The Building Inspector’s January 18, 2022 approval memo also clarified that the

Building Inspector was granting the multiple retroactive extensions required to date back to the

original issuance of the Building Permit on December 31, 2019. See Exh. 2.

16. On May 3, 2022, XYZ submitted a written request for a second 180-day extension

of the Building Permit, again citing various Covid-19-related justifications.

17. The Building Inspector granted this second 180-day extension of the Building

Permit by letter dated May 27, 2022.

18. The Building Inspector’s May 27, 2022 letter again noted that the COVID-19
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pandemic represented adequate justification for granting XYZ’s request and extended the

Building Permit through January 13, 2023. See id.

19. The 2022 construction season was adversely impacted by an exceptionally tight

labor market, and supply chain issues were rampant due to the lingering effects of the Covid-19

pandemic. XYZ experienced months-long delays in sourcing the materials needed to proceed.

XYZ was finally able to begin construction activities at River Park on November 29, 2022. See

Exh. 3 at 4.

20. These construction activities included the staking out of the foundation area and

excavation of a portion of the basement area of the planned mixed-use commercial building on

Lot #1 at River Park. See id.

21. This excavation work was also done to locate the City’s stormwater line running

from catch basins on Route 10 to a ravine on the River Park site for which the city neither had an

easement nor sufficient documentation as to its location or construction.

22. During the course of this excavation work, XYZ’s excavation contractor

encountered the City’s stormwater line. See id.

23. The depth of the stormwater drainage pipe put the pipe in direct conflict with

XYZ’s foundation excavation of the planned mixed-use commercial building on Lot #1 at River

Park and as such, the pipe could not simply be abandoned in place. Best construction practices

called for the removal of the City’s stormwater drainage pipe and accommodating the

stormwater runoff through some other temporary means of stormwater management. See Exh. 4

at ¶7.

24. XYZ’s excavation contractor also expressed significant concern that the pipe was

made of clay, posing significant additional risk of crushing the pipe, and increasing both the

4
process required, and the cost to move it.

25. XYZ’s civil engineer sought and received permission from the State of New

Hampshire to install a temporary bypass line in compliance with all code and regulatory

requirements, and amended XYZ’s alteration of terrain permit to reflect those changes.

26. With the State’s permission in place, all that remained was for the City of

Lebanon to grant permission to XYZ to disconnect the stormwater drainage line and permit XYZ

to make the connection to the temporary bypass line that XYZ had already installed for this

purpose. The temporary line was entirely contained on XYZ’s property and did not require any

disturbance of state or municipal property.

27. In furtherance of this outcome, on December 9, 2022, XYZ sent a letter to Deputy

City Manager David Brooks, DPW Engineer Brian Vincent, and Building Inspector Calvin

Hunnewell, stating that XYZ had “commenced construction on 1 River Park Drive in

accordance with City of Lebanon Building Permit #2016-00293.” The letter specified that

“[i]nitial excavation within the building footprint began on Tuesday, November 29, 2022,” but

that XYZ’s contractor had located and unearthed the City of Lebanon’s stormwater drainage

pipe and solicited feedback from the City of Lebanon as to how to handle the stormwater runoff

issue on a temporary basis, as the pipe itself was considered to be municipal infrastructure. See

Exh. 5.

28. The City of Lebanon did not respond to XYZ’s December 9, 2002 letter for nearly

two months – importantly until after the Building Permit’s January 13, 2023 expiration date

29. Finally, on February 2, 2023, Deputy City Manager David Brooks sent an email

back to XYZ addressing the stormwater management issue and providing additional information

regarding options for addressing the conflict. He then added that “[w]ith respect to the

5
commencement of the construction on Lot 1, I understand that the Planning Department will be

reaching out separately to request additional information” on that issue. See Exh. 6.

30. Two weeks later, on February 15, 2023, 68 days after XYZ’s December 9, 2022

initial communication on the issue, the Building Inspector sent a letter to XYZ addressing XYZ’s

November 29, 2022 “commencement of construction” and attempted to unlawfully impose

retroactive conditions on the Building Permit in order for the permit to “remain active.” See Exh.

7. Among those conditions were requirements that XYZ produce:

● “contract agreements with description of the project, the scope of work, and
construction schedule”
● A “Construction schedule, including the project’s intended completion date, and
start and finish times for each phase of the project;” and
● “cost estimates” and other financial information

31. The Building Inspector’s memo also added “several other steps that need to be

completed prior to the resumption of construction activities (and which should have been

completed prior to the commencement of any construction).” Those “steps,” however, were

NOT related to the Building Permit in question, but rather to the Phase 1 Infrastructure work

that was subject to a different permitting process and, per the written conditions of approval

from the City of Lebanon, only needed to be completed prior to requesting the Certificate of

Occupancy for 1 River Park. See id.

32. The Building Inspector, however, stated in his February 15, 2023 letter that

without this additional information, I “will revoke the permit as of January 13, 2023.” This

letter from the Building Inspector, however, was dated nearly a month after the date that he

threatened to revoke the permit. See id.

33. By letter dated March 7, 2023, XYZ provided additional information to the

Building Inspector, but also asked the Building Inspector to provide the source of the authority,

either in the Building Code or in the City of Lebanon’s regulations, that supported the additional

6
conditions the Building Inspector was attempting to place on XYZ in order to for its Building

Permit to “remain active.” See Exh. 8.

34. The Building Inspector never provided XYZ with any source authorizing him to

impose retroactive conditions on an already issued and active building permit.

35. On March 16, 2023, the Building Inspector met with representatives of XYZ to

discuss the situation.

36. The Building Inspector did not accept XYZ’s physical work on the River Park site

as evidence of work having commenced under the Building Permit. Instead, the Building

Inspector requested that additional evidence in the form of receipts for project materials be

provided to substantiate the preparatory work that XYZ claimed to be doing. XYZ provided

those receipts later that same day.

37. The Building Inspector memorialized the subject matter covered at this meeting in

a March 24, 2023 letter from the Building Inspector to XYZ. See Exh. 9.

38. The Building Inspector’s March 24, 2023 letter to XYZ acknowledges that the

following topics were discussed at the meeting:

● Determination of commencement of work

● Timing and continuance of work
● Existing stormwater situation
● Inability to complete the excavation of the building
● TF Moran designing potential solutions
● Meetings with project partners
● Project expenses and requested documentation

39. None of these eight topics discussed, involved, or established that the City was

relying on any actual physical on-site construction work at River Park to establish that “work”

had occurred under the Building Permit. To the contrary – all of these topics involved work

preparatory to any further actual, on-site construction. See id.

40. The Building Inspector’s March 24, 2023 letter to XYZ concluded as follows:

7
 “we agree that you have justified [that] the preparation work you have been
preparing with your construction partners constitutes commencement of work at 1
River Park Drive in accordance with City of Lebanon Building Permit #2016-00293.”

See id. (emphasis supplied).

41. Accordingly, in his March 24, 2023 letter to XYZ, the Building Inspector took the

position that it was “the preparation work” that XYZ had “been preparing with [its] construction

partners” that constituted “commencement of work” under the Building Permit.

42. The Building Inspector acted within the scope of his authority in making such a

finding as it was his duty to administrate building permits in the City of Lebanon – including

XYZ’s Building Permit.

43. In the very next paragraph of his March 24, 2023 letter to XYZ, however, the

Building Inspector re-introduced the unlawful conditions that he again claimed “need to be

completed in order to maintain activation of the building permit.” These unlawful conditions

included:

● “Design of the storm water solution”

● “Confirmation that the registered design professionals are in your hire and ready
to proceed
● “contract agreements with description of the project, the scope of work, and
construction schedule
● Construction schedule, including the project’s intended completion date and start
and finish times for each phase of the project
● “Scope of work, including which contractors and subcontractors are responsible
for each component of work,” and
● “Cost estimates”

See id.

44. The Building Inspector’s March 24, 2023 letter contained no reference to the

authority permitting him to impose these additional retroactive requirements on XYZ after he

had already concluded that the preparatory work that XYZ had been engaging in with its

construction partners was sufficient to constitute the “commencement of work” under the

8
Building Permit.

45. By email dated April 10, 2023, XYZ again sought a response from the Building

Inspector seeking clarity about (1) the date that the Building Inspector was using to determine

the “commencement of work” under the Building Permit; (2) the need for the City’s permission

to make the bypass line connection; (3) the re-started work on the Civil Engineering; and (4) the

legal basis for the Building Inspector’s demand for this additional information as a condition of

maintaining the Building Permit’s “activation.” See Exh. 10.

46. The Building Inspector did not respond to XYZ’s April 10, 2023 email.

47. XYZ was concerned, given the lack of a response from the Building Inspector, the

four months of uncertainty that had already transpired, and the Building Inspector’s ongoing

attempt to improperly impose retroactive conditions on the issued and active Building Permit,

that the Building Inspector would again attempt to revoke the Building Permit.

48. As such, on April 25, 2023, XYZ took an administrative appeal of the Building

Inspector’s retroactive imposition of these additional requirements on its Building Permit to the

City of Lebanon’s Building Code Board of Appeals (the “BCBA”) (Docket #BCBA2023-01).

XYZ took this action in order to (1) protect its investment-backed interests; (2) get clarification

as to XYZ’s obligation to comply with these requirements; and (3) determine the source of

authority, if any, for the Building Inspector’s imposition of these requirements. See Exh. 11.

49. The BCBA held a hearing on July 11, 2023 and dismissed XYZ’s appeal, holding

that the Building Inspector’s March 24, 2023 letter to XYZ imposing the additional conditions

on XYZ did not constitute an official “administrative decision.” In so doing, the BCBA

concluded that the Building Permit remained in full force and effect without the additional

conditions. See Exh. 12.

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 50. Immediately following the BCBA’s July 11, 2023 decision, XYZ re-started its

development activities in furtherance of the work authorized by the Building Permit.

51. XYZ memorialized the re-initiation of these efforts in an August 3, 2023 letter to

the Building Inspector. See Exh. 13.

52. XYZ’s actions included (1) reengaging with XYZ’s contractors, architects,

engineers, and consultants; (2) meeting with officials from the City of Lebanon to arrive at a plan

with respect to the drainage pipe; and (3) taking steps to adequately secure the River Park

construction site by expanding the construction fencing on the site. See id.; Exh. 14.

53. In parallel with these efforts, XYZ re-started negotiations with prospective tenants

to obtain leasing commitments for the completed building. See Exh. 15 (names redacted).

54. The Building Inspector did not respond to XYZ’s August 3, 2023 letter.

55. On August 17, 2023, XYZ held an on-site meeting with engineers from the City

of Lebanon’s Department of Public Works with respect to the connection of the temporary

stormwater line to allow work on the site to continue – reflecting that XYZ was actively engaged

in work on the site. The City of Lebanon’s Department of Public Works engineers had no issues

with XYZ’s proposed temporary solution, but XYZ could never get permission to proceed with

the temporary solution from officials in the City of Lebanon’s Planning and Development

Department. These delays, and the City of Lebanon’s moratorium on winter excavation, are

what pushed XYZ’s commencement of construction out of the 2023 construction season.

56. On January 5, 2024, XYZ provided another written update to the Building

Inspector, documenting that its contracted architects, Elkus Manfredi, and its General Contractor,

Engleberth Construction, were actively and diligently working on the plans and specifications for

the commencement of construction activities in the Spring of 2024 as soon as the City’s seasonal

10
excavation moratorium was lifted. See Exh. 16.

57. Then, despite having heard nothing from the Building Inspector since his March

24, 2023 letter, and despite the Building Inspector’s failure to respond to multiple

communications from representatives of XYZ, on February 1, 2024, the Building Inspector sent

a letter to XYZ stating that:

“It is my determination that the work on the site authorized by Building Permit #2016-
00293 has been suspended or abandoned for a period of 180 days. Consequently, Building
Permit #2016-00293 has expired and is invalid.”

See Exh. 2 at 1.

58. In the 180-day period preceding the Building Inspector’s February 1, 2024

determination that the Building Permit had expired, XYZ had been actively engaged in

additional preparatory activities for the River Park site. In connection with those preparations,

XYZ spent $221,838 in direct costs for the site and entered into contractual obligations to pay

another $652,303 in professional and contracting fees. See Exh. 17 (Affidavit of David Clem);

Exh. 18 (Findings of Fact of City of Lebanon Building Code Board of Appeals at Finding of Fact

#8)

59. During that same 180-day period, XYZ also formally re-engaged three subject-

specific engineering firms and one architectural firm in an effort to move the River Park project

forward in the Spring of 2024. See id.

60. The amount of money XYZ invested in the River Park project in the 180 days

immediately preceding the Building Inspector’s revocation of the Building Permit equates to

more than nine times the original cost of the Building Permit and more than seven percent of the

original $12,296,100 budget for the entire 1 River Park project. See id.

61. This decision by the Building Inspector was totally inconsistent with the position

taken in his March 24, 2023 letter that preparatory work undertaken within a 180-day window

11
was sufficient to maintain an active Building Permit.

62. The Building Inspector’s unexpected decision required XYZ to once again

suspend the work of its contractors, architects, engineers, and consultants in order to protect the

investment-backed interests of its investors. The timing of this appeal also jeopardized XYZ’s

ability to move forward with the River Park project during the 2024 construction season. See

Exh. 19 at ¶11.

63. The Building Inspector’s decision also interfered with XYZ’s leasing activity,

since the disruption of XYZ’s construction activities affected XYZ’s ability to project the

completion of the space for lease, jeopardizing time-sensitive tenant needs and expectations, and

the overall financial viability of the River Park project. See id.

64. XYZ timely filed its administrative appeal of the Building Inspector’s decision

with the City of Lebanon’s BCBA pursuant to NH RSA 674:34 on February 29, 2024. See Exh.

20.

65. In an effort to mitigate its rapidly accruing financial damages caused by the

Building Inspector’s actions, however, XYZ, through XYZ’s prior counsel contacted the

Building Inspector and Planning Director via the City’s attorney and asked the Building

Inspector to either rescind his February 1, 2024 decision, or to permit work to continue under the

Building Permit on a temporary basis. The Building Inspector refused. See Exh. 19 at ¶13.

66. The City of Lebanon BCBA held hearings on April 1, 2024 and April 18, 2024.

The Board heard testimony from XYZ representatives David Clem and Chet Clem, and legal

argument from XYZ’s prior counsel. The Board also heard legal argument from the City’s

attorney, and from the Building Inspector himself. All parties were invited to submit additional

briefing and any information that they wanted to provide to refute, rebut, or clarify any

12
arguments.

67. On May 17, 2024, the City of Lebanon BCBA issued its written decision,

REVERSING the decision of the Building Inspector that XYZ’s Building Permit had expired on

February 1, 2024 due to inactivity on the site, and granted XYZ’s request to reinstate the

Building Permit. See Exh. 18.

68. In its written decision, the City of Lebanon BCBA made several factual findings

relevant to the claim at Bar. First, the BCBA found that:

“[t]he development of a new building on a previously undeveloped site is a complex, multi-

part endeavor. This endeavor requires engineering, architectural planning, multi-agency
coordination, materials procurement, and contractor scheduling. Although not unusual for
any major construction project, these complex activities are distinguishable from common,
single-action activities that also require permits, such as a minor residential electrical upgrade or
heating furnace installation.”

See id. at ¶5 (emphasis added).

69. Second, the BCBA found that:

“the Building Official issued a letter to XYZ on March 24, 2023. That letter identified 8
bullet-pointed topics discussed on March 16, 2023. None of the eight topics discussed
involved actual completed physical work at the building site.”

See id. at ¶6. Finally, the BCBA observed, the written determination of the Building Inspector

in his March 24, 2023 letter, after reviewing those 8 bullet-pointed topics, was that:

“… we agree that you have justified the preparation work you have been preparing
with your construction partners constitutes commencement of work at 1 River Park
Drive in accordance with City of Lebanon Building Permit #2016-00293.

making it clear that the Building Inspector had previously considered the engineering,

architectural planning, multi-agency coordination, materials procurement, and contractor

scheduling that XYZ had been engaged to constitute “work” sufficient to keep its Building

Permit active. See id.

70. Third, the BCBA found that the City conceded ALL of the following points in the

hearings:

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 a. “Section 105.5 does not set a high bar for ‘work’
b. That it is “obvious that there are aspects of construction projects that are supported
by offsite operations and preparation to perform”
c. That “‘one day of work every 179’ would be sufficient to keep the permit active”
d. That the “City believes that it ‘must do what the law says even when it makes no
sense’”
e. That “there are items of work that could occur offsite that the City would accept as
work”
f. That Section 105.5 of the IBC “does not purport to regulate the intensity or pace of
work progress”
See id. at ¶9.

71. Amazingly, at 4:30pm on June 5, 2024, the very last day of the appeal period, the

City of Lebanon appealed its own BCBA’s decision to the State Building Code Review Board

(the “New Hampshire BCRB”). See Exh. 21.

72. The City of Lebanon did not provide its BCBA with independent counsel to

defend its decision at the New Hampshire BCRB.

73. As such, XYZ was required to intervene in the proceeding to defend its rights

under the Building Permit that the City of Lebanon’s BCBA had reinstated.

74. The City of Lebanon’s appeal from its own Building Code Board of Appeals was

based on the interpretation of the word “work” in the New Hampshire Building Code –

specifically, what actions qualify as “work” sufficient to keep an issued building permit active

under Section 105.5 of the International Building Code as adopted by the New Hampshire

Building Code.

75. As the New Hampshire BCRB observed in its Final Order, see Exh. 22, an

ordinary reading of the relevant code sections provides a member of the public with no clarity on

the subject:

“[s]ubsection 105.5 uses the term ‘work’ three times. And Section 105,
Permits, as a whole uses the term ‘work’ nineteen times. Yet the term is
undefined in this section and throughout the Code.”

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 76. The New Hampshire BCRB’s decision thus, would turn on a question of statutory

construction – specifically, whether the Lebanon BCBA incorrectly interpreted the language of

Section 105.5 of the IBC – which states, in its entirety:

“Every permit issued shall become invalid unless the work on the site authorized by
such permit is commenced within 180 days after its issuance, or if the work authorized
on the site by such permit is suspended or abandoned for a period of 180 days after
the time the work is commenced. The building official is authorized to grant, in writing,
one or more extensions for time, for periods not more than 180 days each. The extension
shall be requested in writing and justifiable cause demonstrated.”

(emphasis added). See id.

77. No part of the IBC, the New Hampshire Building Code, or any other provision of

the City of Lebanon’s ordinances, rules, or regulations sets forth definitions or standards for what

constitutes “work,” or the “commencement,” “abandonment” or “suspension” of such work

under a building permit.

78. In the absence of specific provisions in the IBC, the New Hampshire Building

Code, or the City of Lebanon’s Code of Ordinances, New Hampshire’s well-established common

law rules of statutory construction applied. See Trottier v. Lebanon, 117 N.H. 148, 150 (1977);

see also Loughlin, O., 15 New Hampshire Practice, Land Use Planning and Zoning (4th Ed.) §

6.01.

79. Pursuant to New Hampshire’s rules of statutory construction, “words and phrases

must be given their ordinary meaning unless it appears from the context that a different meaning

was intended. Greenland v. Bunker, 118 N.H. 783, 785 (1978). “Doubt about the meaning of an

ordinance is determined in accordance with the intent of the … body that enacted it, and any

ambiguity is to be resolved by reference to the apparent object of the provision.” Id. citing

Storms v. Eaton, 131 N.H. 50 (1988)(emphasis added).

80. Thus, in undertaking a proper legal analysis of this question, the New Hampshire

15
BCRB first determined the object of Section 105.5 of the IBC. As the City of Lebanon Building

Code Board of Appeals had correctly found, the intent of Section 105.5 of the IBC is “primarily

administrative” in nature. See Exh. 18 (Ruling of Law #1)

81. The City of Lebanon’s Director of Planning and Development admitted in

testimony before the City of Lebanon’s BCBA that the Planning and Development Office has to

contend with how to dispose of the “voluminous numbers of permits that are applied for and

never acted upon” – in other words, to administratively dispose of those permits where no work

at all is undertaken in pursuit of the permit within the 180-day timeframe. That, as the City of

Lebanon’s BCBA concluded, is the object of Section 105.5.

82. There is nothing in Section 105.5, however, to suggest that its object is to regulate

the pace of construction pursuant to a building permit where activities in pursuit of that permit,

whatever their pace, have actually been undertaken by the permit holder within the 180-day

timeframe.

83. Instead, as the City of Lebanon BCBA concluded:

“It is possible that one developer may believe it to be economically advantageous to

hyper-accelerate a project and complete a project quickly, paying substantial overtime
and expedite fees in doing so. Conversely, it is also possible that a different developer
could elect to proceed at a more leisurely pace.

See Exh. 18 (Ruling of Law #1)

84. Pursuant to New Hampshire’s rules of statutory construction, then, “words and

phrases must be given their ordinary meaning unless it appears from the context that a different

meaning was intended. Bunker, 118 N.H. at 785. The plain and ordinary meaning of the word

“work” is broad. According to Black’s Law Dictionary, “work” is “physical and mental exertion

to attain an end.” Black’s Law Dictionary (11th Ed. 2019), or as the City of Lebanon BCBA

defined it, “effort, exertion, or activity.” See Exh. 18 (“Ruling of Law #4).

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 85. In seeking to develop a reasonable interpretation of “work” under Section 105.5,

the City of Lebanon BCBA, as New Hampshire law directed them to do, looked at the purpose

for which the Building Permit was issued. See Bunker, 118 N.H. at 785 (in defining words, a

Board should refer to the apparent “object” of the provision). The approved “Description of

Work” in the Building Permit states that the Building Permit is for a “New mixed-use

commercial building within Lot #1 of the River Park Subdivision.” Therefore, the BCBA

concluded, when the project is completed, the resulting “New mixed-use commercial building”

would be the product of the “effort, exertion, or activity” required to bring it about. Based on

this working definition, the BCBA stated, a reasonable interpretation of the “work” contemplated

by Section 105.5 would be “any effort, exertion, or activity directed to accomplish the “New

mixed-use commercial building.” See Exh. 18 (“Ruling of Law #4).

86. Importantly, the Building Inspector’s March 24, 2023 letter to XYZ completely

supports the City of Lebanon BCBA’s interpretation of Section 105.5.

87. In that March 24, 2023 letter, the Building Inspector interpreted the word “work”

in Section 105.5, and acknowledged to XYZ that “the preparation work you have been

preparing with your construction partners constitutes commencement of work at 1 River Park

Drive in accordance with the City of Lebanon Building Permit #2016-00293.” (emphasis added).

88. As the City of Lebanon’s BCBA properly observed, in order not to be arbitrary

and capricious, the decisions of the building inspector must either adhere to precedent or state a

compelling and valid reason why a different result must be reached on essentially the same set of

facts. Here, since the Building Inspector in this case had already concluded that XYZ’s

“preparation work” constituted “work” under Section 105.5, XYZ’s later, nearly identical

preparatory work, which occurred in the 180-day window prior to the Building Inspector

17
declaring the Building Permit expired, must also count as “work” under Section 105.5. As the

City of Lebanon BCBA determined in its May 6, 2024 decision:

“we hold that since “work” as previously found by the City in the March 2023 letter
includes “preparation work”, similar “preparation work” must also count as work
in the absence of a valid justification of a different approach.”

See Exh. 18 (“Ruling of Law #2).

89. There is nothing obvious in the language of Section 105.5 that required XYZ to

engage in specific, physical, on-site construction activities in order to keep its Building Permit

from expiring. The approved “Description of Work” in the Building Permit simply states that

the Building Permit is for a “New mixed-use commercial building within Lot #1 of the River

Park Subdivision.” The City of Lebanon BCBA found that the “work” contemplated by that

Building Permit was any action taken that advances the project toward the end result of the

creation of that “New mixed-use commercial building.” XYZ had assumed the same to be true

because the Building Inspector had so concluded in his March 24, 2023 letter. There was no way

for XYZ to know or learn otherwise.

90. As noted above, in the 180-day period preceding the Building Inspector’s

February 1, 2024 determination that the Building Permit had expired, XYZ incurred direct costs

relative to the development of the site totaling $221,838, and incurred contractual obligations

totaling an additional $652,303, for a total financial outlay during that six-month period of

$874,141.

91. In that same six-month period, XYZ also contractually engaged three subject-

specific engineering firms and one architectural firm in an effort to move the River Park project

forward.

92. The amount of money XYZ invested in the River Park project during this six-

18
month period immediately prior to the Building Inspector revoking the Building Permit for

“inactivity” equates to more than nine times the original cost of the permit and constitutes more

than seven percent of the original $12,296,100 total estimated cost of construction of the entire 1

River Park project.

93. XYZ also engaged in inter-departmental and inter-agency communication and

activity to advance the River Park project during these 180 days.

94. It defies credulity to suggest that all of these activities undertaken by XYZ in

furtherance of the River Park project did not constitute “work” under Section 105.5 sufficient to

maintain its Building Permit as active.

95. The City of Lebanon BCBA found, in its review of the record of this case, that the

City had conceded this point several times, and had recognized that there are multiple off-site

activities that could constitute “work” under Section 105.5. See Exh. 18 (Finding of Fact #9)

96. The New Hampshire BCRB disagreed with the City of Lebanon BCBA’s analysis

of Section 105.5, and REVERSED the BCBA’s decision, holding that “the BCBA incorrectly

interpreted the word “work” given the context and use of the word throughout Section 105 of the

Code.

97. As the New Hampshire BCRB stated:

the term “work” refers to activities that are regulated by the Code. The
activities range from constructive acts to destructive acts and vary from
large to small. But it does not include all efforts, exertions, or activities
directed toward an ultimate end result. Nor does the term “work”
encompass efforts and activities that occur beyond the identified and
definitively located site listed in the permit and where the permit must be
posted… the BCBA interpreted the term “work” as used within Subsection
105.5 to encompass more than physical activities and favorably cited a North
Carolina decision holding the word “work” includes the mental effort to
overcome obstacles… We conclude this interpretation of “work” goes too far.
We find the meaning of the term “work” within Section 105 to be more
limited…. Qualifying activities are those that are authorized by the permit

19
 and occur at the identified location, i.e., physical acts that take place at the
physical site where the permit must be posted.

See Exh. 22 at 4.

98. The New Hampshire BCRB, however, recognized the fact that the City of

Lebanon BCBA had based its interpretation and ultimate holding, at least in part, on the fact that

the Building Inspector and other City Officials had made representations to XYZ about what

qualified as “work” in the earlier stages of the River Park Project. The New Hampshire BCRB

recognized that:

Because the City previously communicated in a March 2023 letter to XYZ

that “preparation work” was sufficient to meet the requirements of “work”
under Subsection 105.t, the BCBA held similar “preparation work” must
also suffice as “work” in 2024. It is beyond our jurisdiction to opine on
whether there are equitable claims against the City of Lebanon for
representations to XYZ. Here, our authority is limited to reviewing the
interpretation of the text of the Code by the BCBA. And it is beyond our
authority to waive or grant variances to requirements of the code.
Accordingly, we do [not] review whether the BCBA or another body may
appropriately find the City is estopped from invalidating the permit because
of representations made by city officials concerning the types of conduct that
would qualify as work under Subsection 105.5.

See Exh. 22 at 5.

99. As the New Hampshire BCRB decision demonstrates, this is not a case where

XYZ could have simply looked up Section 105 of the New Hampshire Building Code and

determined that the Building Inspector had given XYZ an improper reading of that Code section

in his March 24, 2023 letter. Here, as already established, neither the New Hampshire Building

Code, nor the International Building Code defines what “work” or the “commencement” or

“suspension,” or “abandonment” of “work” is. No local ordinance provision provides any

greater clarity. And the only recorded judicial decision interpreting Section 105.5’s definition of

20
“work” found that a local permit had not expired simply because there had not been on-site

work. See Morris Communications Corp. v. City of Bessemer Zoning Board of Adjustment, 365

N.C. 152, 157 (2011).

100. In the Morris Communications case, the North Carolina Supreme Court held that

the fact that the zoning administrator did not observe construction-like activities on the site was

not dispositive, because the term “work” had a broader meaning than mere visible evidence of

on-site construction. The City of Lebanon’s BCBA seized on this, observing:

“[a]lthough out-of-state rulings have no precedential value over us, the Board references the
highly informative ruling from the North Carolina Supreme Court in Morris Communs. Corp v
City of Bessemer… ruling in favor of the landowner who argued that “work” encompasses the
border range of activities necessary [to complete a project]… and Webster’s Dictionary defines
‘work’ to include ‘sustained physical or mental effort to overcome obstacles and achieve an
objective or result…’ Applying this definition to the Bessemer City ordinance, the term “work”
has a broader meaning than mere visible evidence of construction.”

101. Here, XYZ has never demonstrated, either by any overt act, or by any failure to

act, any intention whatsoever to stop or abandon or suspend “work” on the River Park project for

180 days. To the contrary, XYZ has, at all times, continuously, diligently, and in good faith

pursued completion of the “work” authorized by the Building Permit.

102. XYZ completed two Code Compliance reports and has made all necessary

updates and adjustments to its building plans to bring those plans into full compliance with the

updated IBC and submitted those changes to the City of Lebanon. XYZ’s building plans are

fully up to date with the latest code requirements, and its development of River Park should be

allowed to continue under the existing Building Permit.

COUNT I
MUNICIPAL ESTOPPEL

103. Plaintiff restates and incorporate herein by reference all of the preceding

21
paragraphs as if fully set forth herein.

104. Municipal corporations, like natural persons, are subject to estoppel. Concord v.

Tompkins, 124 N.H. 463, 469 (1984).

105. Here, the City of Lebanon Building Inspector, Calvin Hunnewell, made an

affirmative written representation in his March 24, 2023 letter to XYZ that “… we agree that you

have justified that the preparation work you have been preparing with your construction partners

constitutes commencement of work at 1 River Park Drive in accordance with City of Lebanon

Building Permit #2016-00293.”

106. The Building Inspector was acting within the scope of his authority in making this

determination, as it was his duty to both interpret and enforce the NH Building Code in the City

of Lebanon.

107. The Building Inspector’s representation was made, in writing, in a March 24,

2023 letter to XYZ.

108. Not only was XYZ ignorant of the truth of the matter – XYZ had absolutely no

way of knowing or of possibly discovering that “preparatory work” did not actually constitute

work under Section 105.5 of the Building Code. “Work” is not defined anywhere in the Building

Code, or anywhere else in the City of Lebanon’s ordinances – and the only recorded legal case in

the county interpreting Section 105.5 interpreted “work” the way that both XYZ and the City of

Lebanon BCBA did – to include offsite preparatory work.

109. The Building Inspector made this representation to XYZ with the intent that XYZ

would rely on his ruling that the Building Permit was still valid. The Building Inspector’s March

24, 2023 letter to XYZ makes that abundantly clear.

110. Given the interpretation of “work” that the Building Inspector made in his March

22
24, 2023 letter to XYZ, XYZ acted reasonably in subsequently relying on that interpretation later

in 2023 and in the beginning of 2024, in assuming that the continuing preparatory work XYZ

was engaged in - investing in professional contracts, purchasing materials, engaging with City

officials to design a workaround for the drainage pipe, and engaging in all manner of preparatory

work in anticipation of the Spring 2024 construction season – was sufficient “work” to keep the

Building Permit active.

111. XYZ was induced by the Building Inspector’s March 24, 2023 interpretation to

rely on that interpretation, and did so, and XYZ has been financially damaged as a result of that

reliance.

112. The City of Lebanon has conceded that “there are aspects of construction projects

that are supported by offsite operations and preparation to perform.” See Exh. 18 (Finding of

Fact #9).

113. The City of Lebanon has also conceded that “there are items of work that could

occur offsite that the City would accept as work.” See id.

114. Finally, the City of Lebanon has conceded that Section 105.5 of the IBC “does not

purport to regulate the intensity or pace of work progress. See id.

WHEREFORE, XYZ Dairy, LLC respectfully requests that this Honorable

Court:

A. Schedule an Evidentiary Hearing on the Plaintiff’s Request for a Preliminary

Injunction if the Court deems it necessary prior to providing the relief

requested; and

B. Enter a temporary restraining order, and a preliminary and permanent

23
 injunction reinstating the Building Permit to allow XYZ to continue to timely

develop the River Park project and enter into leasing arrangements with

prospective tenants; and

C. Enter judgment against the Defendants, City of Lebanon Building Inspector

Calvin Hunnewell, and the City of Lebanon; and

D. Award XYZ their reasonable attorneys’ fees incurred in taking this action –

which should never have been required as XYZ was forced to defend a clearly

defined right; and

E. Enter such other and further relief as this Court deems just and proper under

the circumstances of this case.

Respectfully submitted,
XYZ DAIRY, LLC

By and through its attorneys,

SHEEHAN PHINNEY, P.A.

Date: September 13, 2024 __/s/ Robert H. Miller____________

Robert H. Miller, Esquire
1000 Elm Street, 17th Floor
Manchester, New Hampshire 03105-3701
Telephone: 603.627.8145
Email: [email protected]

24
EXHIBIT L
 CI?Y OT LEtsANCII\i Ferrnit Number
2016"00293
Suilding Perrnit
Lebanon, NH 03766 Dat* of l$sue
603'448-1524 1r/3112013
www, le ba nn rltl il, ttg-V

OWNefI XYZ DAINY LLC

Appllcanh XYz DAll{Y LLC

tocathn sf Workr 173 N MAIN STIWEST LEBANON

{h}o- *nd $treet} {unlt or Bullding}

Dcsrrlptlon of Workl New mlxed ilse tommercial buildlng rvithin LOT ll1 of the {tlver Fark subdivislon

IONXHG FATA: Distrlch R3 " R3 Map\Lotr 44-3

CONTRACIOB: CONSIGLI coilsr{lU gilON

RIMARI{!r
THts N[nMlr t5 BElilfi tssuED WtrH THE FOLLOWIN6 CONDITIGNS:
SE€ ATTACHEN COFIFITIO*'s TIST

woRKSHALLNOT pnOC€ED UNTILTHE CITV lNSpfgrORS I{AVEATpROVEO THE FOILSWING STAGES OF

CON$TRUCT*ONI
1, Foundation footings, forms and relnforcements, lot pins must be ilr place at tl'lis lnspectlsn to assure tfie
s€tba{k rlfled, the constructlon wlll
not be approved the sole rerponsitrllltY af
the swner, OO
2, FEundatlon dral
3. S$ucturaf rough frame, rough bing,
4, Pnlar to conc*allng anr; work autharlzed under tlrls per*'ltit.
5. Final Inspection far Certiflcate of Oceupancy, to lnclude plumblng, heatlng, electrlca[, and any otlrer code issue
or miscellaneous ltem as applicable to tlre proJect inctuding slte irnprovements. pl[AgE sCH€DULE THIS AT
TEAST 5 DAYS IN ADVANCE.
A buildlng sr strileturc shall not be used ln whole or ln part rrhtil a CERTIFICATE OF SilCUFANCV
rr occuplad
has been lss$ed.
AFPROVEO PIANS MUST BE KEF AT THg JOF 5ITS. THI$ EA*} ?V'IUST SE I(fPT {JilTIL PSSTES UNT'I FINAL
INSPECTIONS HAVE BEEN COMPLETEU

Permlt Holderr XYZ DAIRY, LLC

tlaklng fie$pohriblllty for the work)

CornprnylAffiliati*n: XYZ DAIRYI ILC loh $ite Fhsne Numberi

gonstr Costi Permlt Fenl $90,492.00 eheck No.: ! $0,0G

The rmlt Card Shall be Pcsted and Visible Fro the $treet Furi Con$ffuctlon

12fsrlZoLe
Oate

CR112
 coNqI?IoNs LI$T rig,q P$R&{IT 20X6-2?3 (44-3)

Satvin llllrrrc,uc*ltr t]iltldinq kiqF.eclor:,$gl {48 145? #{1f,. " .

lrlng calch hasi* LeB-13. 'l'hs ft)uttd',tiorr
i

BI, .l.he
plans slow th
pounel;atar inhlsiutt witlr the
cngincering rrpod recontrnc,ds ths bftscrnent *puiu l* proiected agtinst
lfhc drainagr* $y$lsms arc rcco$]msntJcd [0
installatlnn alin perhncte, nnd u,ta"r rrlah <lrainlEo syslenr's,
lilhc eodrr reqrliros ths subsoil tlrainrrgo 'rystem io
itroin to a st*-*rr diaiu rvhicl ls not subjool ter su clrarge,
buildings to bnakw'atcr of tlre s*bscil drairr
di*clnrge into sn qppr:ovetl lcsation, Ths eode rcrp'iie* llLrjcef
vnlve. .Aciditi+tttrlly, stttrsoil sun:p ancl purrrping $yst€'mfi
t * pro6rt"C by *n ac"er.sibls losat{:al baskw*lcr
e.ngin*ering dauur*etrtfltinn bc pruvick:d tlotnor$tratiilg.LCB-l3 will
ruay tro rreq*ireei. Requesl arlclitionnl
fr,undgriofl druinnga *y*t*r* to niutchnrgelbnckwater, 200q IBC I fr05'4, I[)C lit]ctit:ns
iroiuulrj**i*re
Iilt, t1t2&1113
"l'ltc ootlc ltqltires acces*lble routos within the sitc trc pl'avitl cd lionl ptrblic tmnripotttiion
stops;
n?. to sccessible
sidewnllc$ lhe
uccossible park ing; *rcc.cssible Fsssengel' loading uonesi and Pu,hlie lttfeets $r
building entrance s.er'\/ed. Request a$snssiblti rontcs hc irlentified {ll thu.sitc pfan* with sr:fficicnt delaiL to
dentorstlato cautPliatrce rvith the uecesslhltriry standaffls, 2C09 lnC See 1 104,1
fiotr tlre
l]3. Accessiblo Parkirtg spacos arc req*ired to be located on llrc uhortest ttcccssible rcutc oftrarrel entrflncc$ willt
v;ith ruultipte asscssittlc
ncljncent eccess *isle to the {rceessibtc buikting snhsnce, Builelings
n{Rcent pa rlting,n lequires aceessli:lc pnrlting to lrc dlsparsed and locttsd tteu tlto acsessible
parking; Irowover, they are
errtrnrruoti" "l'he subnrittcd nns r{o, irrdicate some disbursemunt nf acce*sibls
qrrr *hou an
n$t lcsatcd
oxucsslvs
l,r"rt 3. Requcst
being
clarl{iantion brr'
achieved. 06.6
I}4. The dourl *t 1?3 North Main
is 3 storl' vriltr o liill
$lrcct, Wesf J,ebanon, Nll. , A{roording tc the *ubrnitted dgsuirronts the lxlldlng
Lrnselnsnt approxin, at t:lY 45 fcet in hoight with $ total buildirrg arc*
of npprorirnately 6?, 1 85 $qraili
first flonr atca is apprnximalelSt
fbct, 'l'hr: $Bgt'Egats tlasemcnt slca i$ ullploxirnately 14,1ftO squnrc ftor,
14,084 squ{ra fbet, scc,sn{l floor nrca ls appnxlrnntely 15,1(tg 'squilt's f-bct, thir:d floor: area is apptoxt:nulely
i5,49t sq$$rc fec! and the penthousc approxirnntely 2,653 square fect'
85, 'r*e buiklittg revlew witl Lre sonsidered n$ il llsn"sopnmtsd mlxed"usc buiklirrg of Storlrge $rnup
S"1-

Gtnqt M, Asso:nltly Ot'ott p A-2 *nel Business GrorrP Il.

Modcr*te-hazard OecuPancY, Mcrruntile
jnslulled thrr:ttghout tltc
86, Thc subtxittccl PI*ns nnd docr.rrle*ts indicatr tirat a sprirlkler systent is
tire protectlve sig*aliltg sy+tcnt
buildiirg in nccortlutlce 1{ith NFI]A 13, ll"he building l* indicated lo ltave a -fupcIII3.
fbr i ld ing is
irr accortlattcc wllh NfI'}A ?2' Tht type o{' corrstructiern intl ieateel th e bu
agellsY shall inuhde
ft?" I'rnjeot iltallrrrl seotiot 014320 ilsrl 3.1-C- rl-b,, nates in par{ thnt ths tasting
Cener:a J Contl*ctrr and
suhnti*sion of teports to the following: Owneri Alchltcct' Struetulal Bngineur"
of tltc liBittsment *f Speclal
Lupeotionnl Selvices, $uhtilissiun cf reP*rls required to be distributed
as F6ri
IBC Seotiotts l?fi4"1,2 & 1705
l*spet:tirrns inciude sul:ntissiott fu llrc Bui]ding tUfir"'inl, 20{i9
riatcd 12/18/tS dues not indicute tltc
8S. 'I'hs *rlimiltcd Stntcntent cfl $truutut'tl $pccial hlspcotiotts
a*d cr agcncis$ porfbrm ing lh* inspcctions bc
intlapertdent lcstillg Bgetlcy. Rcquesi tfie appro-vcd agettcy
pat't of thc Siatsntcnt of Sftur;lursl Speci*l
idcntilieel, in plnr:e of the iuricpcrtdent tcsting {tgslrcy {fBD}' as

Inspcctiotu.
'IJre cods reqrtircs t minlntum 2-exils for
Bql i:ru*iug A02l inrlieates ths baserD$nt requifc$ olte exit, 2009I1i}Clisctiani02l
t|cbutionterl{space. Rcquestplrin*indicatceppropf;afsreguirct!numbmofaxitc' 'l"he codc rccpirer a l*inlntunt
nurnbot' of cxi{s,
B l t), Drawi'g 4025 e oe* ,roi i*dicatss tke raof riqrrhcd
requircd nurtrbel *f exils' ?$09 lBc seuti()tt
2 axiis {Err the l.oof space, R".1*r"st pl*rrs inditalc appr:apl'iate
r0?l

CR113
D1 l. Clnr{$ rrupport cf shal}s and bstluln enelusur{r. shafl.t orp rcquircct to be sup}orlecl by fire t.llittg
ootrsislcul wilh slrafl rating,
R l Z. tr);6rar1ng A0?1 irr{iialgs the bascnrcrrl leqrires one uxit, TJto
crttls rcquitts * rninirrutn 2 exjts {hr
thqj t)ascnrcrrt frrace. Itequcst plnn,s irdisnt* r'U?llr,lprials requircd nutrrtrct af exitx. 2009 ltlC $cQiiclls
1015,1 & l02l
'Ihe code rcquircs n
I] 13, Drawi$g A025 doea nnt fndiaatc the nu!:bcl of tlqrtii:etl ';xils on the roo['
tniuimum 2 exlts lbr tlrs loof space. ile{u€$t plans indicutc tlppropt'iatc requircd ttltntber ofexits, 2009
tBC Seqlion 1021
* f +.- nr,fu.*t aclditianal details be yrervidcd fur rhalt continuity {tud 1$p tnd bottom enelosure. 2009 I}1C
Scction ?08
!]rarvings Al01 in{iaate tlre 1wa lrcure.xitsi*irways {}xitiug thraugll corddor I l'1 and lotiby 101
<tn
BI5-
iire :nain lc.lef fl,,l drrwiggu do n*t cle arty inrlisa{e the fir:c rating *f con'idor I I tr tho oxit
protoctcd with the samc r*ting ns llte exit
fnr*ug"*tnp The cndo requir:ed tln Bxi{:paisagerviy be
*tuirtiay, ?hc q,rdc req*ircs th* errlire at'en olithc lcvel of exit dischnrge br scparirteei froin tha area below
t! *ti*fnrctinn eorrf{il:;nirg ta ttrre tirc-rcsistarrce !'stirlg for thp cxit entlosrrrc, lieqrest cl$rifisatiort bc
proviaed dc{niling th* desiln inlerrt tbr cxit conlinuityn terr:rinatic'n ancl elisohnrgc, 2S09 ltsfl Ssction

1020 titrough I023

R16. T5e iifi: sare.ty ck*wings indicate {ir,s r'{te{i asscmbliss fcr'somo rvalln, ttetail dmwings do lrrrt s|ecily
tjn: ratsd rrssemblies consiststrt with ths lilb safely drarvirtgs. Request ptrrrns be reviscrl fftr consistency"
Bl.?, ?ri6t.tg iuskrllrtion of linr s*fe.ty *nd snrokp Beat Rt thc void crcilled at lhe interscatian af *xtcrior
wall asserrrhly aud ftnor asscmtlly approval of ths $ystctlls is requiled' 2009 lBf-: Scc{kur ?14.4

F1. Fire alar:m

arcns ansl in 1bs
rrreans of cgrcss req*ired
Ir2, Ps'City o sh*ll trs
installed in the vioinily of all prnpan E fueled henting aplrliancras
Psr ths ?015 liditiorr of thc lntefl$ti(nt I FiLe Cade, Appendix J, a buildlng infcrmatiott *ignshnll
be
Ir3,
in$atletlott awnll sutface ntthe irtterinr nf the:nain e'nft*nce tu tfie builellng,
plxtls thall be
S4. Isr Lcbarron Firc Depar{mont requirements, trluec (3} scls of auto*nllu fir:o spr'inkter
srrbnritfect f?:r rcvicw, 't'he design of the *ulomatic {ir:o sprinkler systcttt shtll be tinsed upon {he 2016

Iielition Qf NFFA l3 nucl shall iichidc prcrvisione fcil: tho iemoval of lrapped ilir fiottt thc s)'stetn lnrl be
nt**gin *f l0 psi. FJosr: oo*iral valves shatl also trc provided.
-i'cr with * mlnirn*n:
clesigrrcd sof'ety .
for the
F5. thl: Lrbalon Fire Depa*rdctlt Itu{ss & Rcgulatiors, tire firc dcparlnrcnt *oltttcction
autr:irratis file nprirtkler *ystem shqll be a fbrrr (4i itrch $tortz lypu uutncution
with a 3O-ti*grcc dorvtlltttttcd
elbovr n*<! shnll bs locatcd near the ,n&in cll{ranse to thc httiklilig,
I;d, Per City of l.ebanon lrire Preventi*rl Orc{irt*ttco ?2-10(G},fha firc *[arn systctr fot'the building slrall
be oonnected lc ths nurrisip*t fire [hrm .systetn using a Gatne'lvcll Master
l]ox. 'Ilhe mnster hox shall he
jellyJar light above lhc box,
loeatetl fl<ijacent ro the *rairr enh11nee tr tlie buitding and havc n rcd
F?, per,thc 20ls lntelnational Firo Code liection 50e.1, a l(nox lnx is reqltiled furthebuilding' 'l'he
I{s*x bux shr:l1 tre. Iocakd at{iaecnt to tha ruast$r bnx at ihs nrain cntt'ttnou uf the briildltrg. A oopy of a}l
,r:*tun keys to the buiiding aucl crt le$st otl Bli:valor key shnll hc placcd in thc Krrux Box'
F$, llcr l!r* 2ti I5 lnter'{ailn{* Itire Codr:, Seetion 906' 1, Iire extiuguisher* arr: requited fcrr ttre
so that thcy *rc
huittlln6 The fira extingriishel* shall have * minlmurn of a 2A mtirrg and shatl be lsent{rd
reachecl within ?5 ruet ortmvci, An arehitecl o| cngineer shall dctcfnrir:o the
picpcr lacatiorts cf the fir:e
cxliitguislels
lig, Fcrthcl0l5lntorrrutionalFileLbcle,sectkxr33l3,l,atlcaston$shndplpeshnllbeinst*ll$tlin*stain
fire depnrlment
1o tre dry with fl tempornr1l
lorver dr.rdng tlie consfi.llction plurse, This standpi;tc is siiarr:cd
connectian.

CR114
Irl 0. Afi ubuve geouud propnne gas linm slrnll be *iihcr pnintetl yellow ot llavc i<lsntif:cstio,l
stioltors/lahels pu,ruon",rtly **i*i
to l'[rc piping for id*ntifica{icn by emergetty lcsponders,
tlte I"ebailotr Fire l]epnllutcttl
Fl 1. flior,to {lic rttnrt of ionstructiofi, tbc feneral con*'actor shnll rncet wittt
Fire Safety Dutlng
fo disrlu,qg the tcqnit:ct:tertts of the 201 5 Irrterrrntiorrnl Firc Cocl*, Chupler 33,
Conslrustiun *nd lletrolitiatt,
App:aved srnokirtg
iln. The buiiding shsll bct a no suroking silc throrrghout th€ $oFslruction procass.
rccOptflclcs shnlI ho
lo*rtiur.rs shall bs **rennirr*d with tlre grincrxl cantt'actor antl approved nnrokirtg
provided,
n capaeity of
Fl3. I'er the.2tll5 IntemntionalFire code, $esti0n 33il4,?,3, rvhurc rubbish eontaincrs with af
grenter than 40 gallorrs lrs urerl inside of'the buikling <lurirlll f,{)nstruotion, tkcy *lr*}l tre

non-conrtrustible inaierial with n tightfitting lid,

Irl4. An alar*l uscr pennit for ihtit"ruildirr! shnlt be cntnpleted arrd *ll fees pnid tc tlle City of I'cbanot
Dispatoh cc4ter: llriol'ttr *cccpfartee testing of'any fire pmtection systellt,
f 15. A nrinin:urrr of:twa {2} wceks' lroticl strnll be plovidcd frrr er,nttcstion *f ttrtc mastsr box the,
ro

muttioipal Ilru atarm system

It I 6" Prior to issuing *ny typc of $etttficale of occuPn*oY , rll tncatrn ofegress shslt
bs inslalled and
ilrtobstrilclsd nntl stl I'ire protectiott systcms shall trr: in n notmal oPcrrrting cqndiliort,
Irl?, Sheet A101, Corridor I l1 anel lllevator Loliby I01 shows g prts-hout fite rcsistnnce ru{sd
asscmbly" Iler the ?01 6 Edition of NFIrA I tl I ;'i,2.6,3 Stair Discharge, Au
exit passagel{'ay fltaf seryus tts rt
srtne l'ire nce lating antl upcning
disul:nr ge from n slAir enclosurc slrsll hnrre not lrrss than thc t:esiste
protcctive Iirr ptottction ratlng as thosu rrquiletl fol thc stair eh$losurc. In lilevalor: I.otrby 101, thau ir
sectiorr crf w*l[ l"oll$t 102 & 104 that is shnrcd lvillr thc l*bhy that does ttot ltuve atty
r:aiing shawn,
exit symbrrl
Fl8, Fer ihe
fi'rxrr
nith s
ihc $ttolosttt$ ttuvel,
fotlnwing rcqu ircrnurrls;(l) The cmcrgcncy uxit shnll nreet ofNF .A.170,
f*ymbrrls.{2) The omergr:rrc1t exit,uymbnl appli*cl on thel do$r *hnll
$tuntlsrd fosFira Sa,futy and Bmergenoy
ho a ntirtituum of ,{ in, (100 nru) in heigltt nnd shall lie rrPPlicd nn the door, 0nltcrerl
hctlizorrtolly, with lhE
top r:f the syrnbol not highcr {han !8 !n. (455 ntm) nbovc tltp finished flool.
Fl9 Shcet A101 shsrvs the syrnbnl ftr a 2-hour rateel enctns*re stound the slrafts fur supply aud rcturn
risers hcltrcvet' lhe rvn ll type listctl is l?rrn 1-ltour assenrbly (lAll) or s nor-r&tcd assembly {A,5}
as sholvn
lype 45 p r*tetl partitiotlo pleasc
nrr Sheet 4005, .lllris conclitriori cxists on all flools, if rvnll partltian is
rav isc nnd resutr ttt il.

Wi rl r5 usn cs{r fnslt rig a!. I rrspettgr (i1}3,44 I I 451' + liXtl

l]t,Mcet*iththc+le*tffifogoor'ertlreschedulingoflrrspections,
if lhete i* otie) nrtrl
pnd
F2" Nccd tc provide, dstalls on the clcciriwl selica (locu,tion 0t'the trnnrforltter
tbc }ocation oi {ha 'tu'viee inteml ta the builclirrg,

CR115
EXHIBIT 2
 Ctrv gr LseANoN * FLAr'rF{tNG & DuvglotrMENT

Fehruary 1, ?0?4

Senf Vra Cerfrffed h'lail, capy t'ia E-Mail {chel@lynapropcrfios,ccmJ

Chet Clenl
XYZllairy, LLC / Lymo Properties
57 Main $lreet
Wesl Lebanon, NN-l 03784

Re: ExFiratjoli_-ot I River Fark Drive Euildinq Pe_iltr.i! taU[9:Q029.3.

Dear Mr- Clem,

Please be aduised that Euilding llermit #2016-002t13, originally issued on December 31, 2019,
has expired and is na lotrger vaf id. Section 105.5 ("Expiration")of the applicable 2S09 lnternationat
Builcjing Oode {"lFO"}, pravides as folfows;

105.5 Erpiralion. Every perrnit issued shall become invalid unloss ihe work on the
site authcrized by such permit is co$rmenced within 180 days afler its fssuailse, or
if lhe work aulhot'ized *n thc slle Sy suclt pennlt ls susponded or abandoned for a
penorJ of tftO days affer the, time tlrc work is carnmenced. The huildirrg officiaf is
au{horized to gmni, in wrltins, ons or mora exlensions nf time , for poriods not mote
lhan 180 days aaclr. The extenslon shall lm roquostoci in wrriting and juslifiahln
cause denronsirated. {en'rphasis aclded}

It is rny dsterrnlnaticn that the work on the $lte ar:thorized by Building Pern'rit ti2016-002S3 tras
been *uspended or abanrloned for a perim! r:f greater ihan 180 days. Consequentty, Building
Permit #2016-00293 has expired and is invalid.

Fernnit Historu & Camrnencemqft of Work

By way of background, a builcllttg permit applicatlon tar 1 River' Fark Orive (forrnerty 100 River
Park Drlve) wan orlginalfy filer] on July 28, 2018" The building pefmit was issued on necomber
31, 2019, as Bullding Pernrlt #201S-002S3. ln responsc to a written request frcm Lyme Propertles
clated Becentber 9, 2A21 , a 1 80-day extension of Elttilcllng Permil #2016-00293 w*s ap;lrr:verJ t:y
ffiemo from the Buifeiing lns;rectordated Janirary 18, 2022. The approval memo acknowfedged
that the CO\/|il-19 panelernic represented adequate justilicatron forgranting an extsnsion until
July 17, 2A22. The menl* also acknowledgcd thatt in effeqt, the Suilding lnspeclor war greintirrg
mull.fple tetraactlve extens[ons srtrce no work at the sits had cornmenced within the nearly twc i2)
yoar* betwoen lhe is*uairce of the pormit and the Dccenrber A,2A21 roquest for an extension,

ln te*ponse loa written rerluest dated May 3,2022, fronr Lyme Froperlies, a second 180-day
extensisn of Buildirrg Perrnit #2016-00293 wai approved by letter frcrn the Building lnspector
dnted May 21,2022. At that tinre, the Buitding lnspectcr again found that tlre COVI0-19 pandemic
rcprcsenled adequate ju*tificalian ta granl your reqile$t and, therefotre, an extension ol the
Suilding Permlt was gr:anted untll January 13,2{123.[n fhe May 7"7 , 2A22 hlter, yorr were advl,sed
that, due to changes in tlte Slate Buiitling Code since the or"iginal buifding permit appllcation, "in
lfue event the applicant is required or elects to lequest an additional extension or ox{afisicns cf

5{ NORTH FARX STREET, LESANON, NEW t"{A|VIFSHtRE 03766

CRO37
TEL:603.448.{457 F/\Xr603"442-6{41 LEsAlrloNNH,GoV
 ]ti,r: I Fchluur:y i, 2{J24
F*gc 2 of4

time beyond the $tate's fonrral adoption of the 2018 eelition of tlre IBC as the State Btrilding Code ,
tltis officc may not be *trle to Ju*tify grantltrg edditionat extensi$ns and will require the applicant
to submit revised and updated plans and specificatlons for the rleveloprnent tc demonstrate
r:ompllrrnce with the 2018 edition of the IBC arrd other applicalrle local regulatiorrs irr plaee at the
time of such request before the City v;ill grant additionnl extension* of tinra""

On December 9,2{J22,1 receirrecl a copy of your lettsr lo Depr"rty City Managcr Davici Brcoks
stating tlmt "XYZ Dairy, LLC corttrnenced construction on 1 River Park Drive in accordance with
eity of Lebanon Suildlng Permil tt2016-00293," The only infarnration provided in yr:ur Netter
relaiive to the cclmmcRcement of work was thai "filniiial oxeavatiorr within lhc huildhrg footprint
begart on Tuesday, Novemlrer 29,2fr22." ln respnnse, by letterdaterJ February 15,2023, the
Building trnspectcr requested additionaf infornration noecled to deternrine tlrat work had
co$tinenced for purposes of dernor.tstrating compliance witlr Section 105.5 of the 2009 IBC
nshall
{which, as cited abori€, provicjes that a pern-rit become invalid unless ihc wor[< on the site
auihorized by such pemit is conrmoneed wi{hhr 180 days after its issuance[..]")

ln a letter front Lyrre Fropet'ties daled March 7, 2023, some of the requested additional
informalion was prorrided. Follar,ving receipl of your March 7, 2A23 letter, the tsuilejing lnspector
deterrnined, as set fo*h in a letter dated fiilarch 24,2*23, that welrk pur$uaul to buiklirrg perntit
{12016-fr0293 had cornmenced as of hlovemtrer 29, 2O22,ln the Marelr 24$'lelter, XYZ/Lyme wa*
also advised lhat it woulel nsed to complete certain aclditional steps in orderto maintain aclivation
o{ tlts building pernrit and avoid a determlnation that wcrk was suspended or abandoned for a
period clf 180 days following the Novernber 29, 2n22 contmerlcentent of work.

Cn April 10, 2023, you e-mailed a responso to tho March 24,?:023lclter, anr* an Aprll 25, 2023,
you lited an applicaficn to the Euilding Code Board of Appeals appealing "the Buifdi*g lnspector"'s
ttllm vjtes reque$t tor informalion related to b{.rilding perrnit #2019-002S3." On July 11, 2023, the
Buildirtg Code Board of Appeals dismiseed the appeal for lack of subjecf nlattef jurisdiction,
finding thfft no docision had been *rade in the March 24, 2023 letter.

Following the distnissal of your appea!, you wr"ste in a letter elated Augu*t 3, 2023, that "[tlhe ollly
thing that rernains to allow work to conlinue on tho sxcavation for 1 Rivar Park is tho conn*ction
of llte etistlng llne ta the t*m1rnr*ry line on l-clt 1." Sy e-nrail ssnt on thc samc date , Dcpuiy City
l\4anaget David Brooks explained thert your questinns regarding the fioute 10 stor*rwater
conne6ti6n lssue should be addressed to the Eepaftment of Pubfic Works anel not to the Building
fuispcclor'. By e-mailscntto Mr', Brooks on Augu*t 4,2A23, you l"eiteraterJ your yrositior,l that your
praposed Route 10 slormwator connectlon otemporaty solutlon ls within the Citir's jurisdictlon to
appfovo the temporary re-routing undel tlre build,ing pernrtt".

Finally, by lettet dated January 5,20A. you lold ffie that "XYZ Eairy, LLC is ae{ivc+ly and tJiligently
put'suing the conslruction cf 1 River Patk," and ln $upport ttrareof you statsd that "Engieberth
Ccnstructfon as our Construction Manager, and alcng wilh elkus ManfrediArclritects arrd lhe rest
o{ lhe projee:t team are working toward the Spring, ?024 *onstructlcn seasorl."

$qspgns,lopgr Abandonmqnt of Work

ln yotlt' lelter dated December g, 2022, yCIii wrtte [l:iil, "\,ve have encountsred a canflict with
exi*tirtg City of Lebansrr infiastruclurs tlrat has suspende<i construction until a solution con l'le
reacl'Iecl." $ince that tirne, yott have repeatedly statcd that work at 1 River Fark Drivs has been
suspended " Such statemenls include the followlng:

CRO38
 rJ.:,.i 1r :',r. i
Iiclrrrr:n'y l,2tl?4
iltgc 3 <rf4

r Per yCIilr March 7,2tl23lettot' to the Bulkliag lnspector: "Oncc tlre pipc was loc;rlcel worl{
n€asod to avoid potsntial'y clant*ging the existing, activc llnc that r.vas lnltially ro;rorteri to
b0 {:lay."
. Per tlie cjraft July l l ,2A23 Building Code Soanl of Appeal.r meeting rrrhrutesl "ltr/ork has
heen su$pended becalrse of this hearing,"
+ Per your Augttst 3, 2023 letter to the Buileling lnspector: "Follcllirrg the deterrrinatian of
the Appeal B$ard, we have restsrled conversations with proJsct pnrtners tlrat wera
suspended fiecause of your- Fobrttary 15, 2023 corfimuilicatiorr."
. Per your Augtist 4, 2023 e-mail to Davirl Eroolss: "tlre City's pipe is preventing work on 1
River Parlq from corrtinuing",

ln your December 9, 2022 le{ter, you did not specify the date when work w*s suspenrled,
Assuming the work ceased on tho dale of your lett*r {r',o. olr Decernher 9,2A22},lhen the 180-
day deadtine to re-cornrnence work would heve been June 7,?-O23.lf ycu wish to argue that your
appeal to tlre Building Code Boatd of Appeals tolted (he 180-day period, then tlie tS0-day pcriod
vrould havo resunted running as ol tl'rc date that ttrs ZBA disrnissed ycur appeal on July t 1, 2f)23
and expired an or almut Augusl 24,20?3, Furlh*rmore, a filll 180-day period has also novv run
l:etwestt July 11.2021 and January 7,2*24" l-loulever, as noled abcve, you have stated on
rnuftiplc occasiorrs that work has been susp*nr1ed since al loa.rt Deeemher g, 2022. Also, I have
otrsetverl no work cccurlng *t, or changos ts, {he $ite on multiple drive-by inspections canducted
throuqhout 2023. lt appeats thete can i:e no dispute that work ha* indeed been suspanderl for a
period of significantly greater than 180 days, and renrains suspended as of the date of tlris letter'.

t alsa lrote lhat there has been nn effart to addres* th* iterrs identified in nry letter of Mareh 24,
?(12ff, as needing to be conrptoted priol'to tho tesuntptton o[ construction activities {ane} which
should have been eompfeted prior to ihe commenosmenl of any construction)" These incluciel

. Fmviciing a cosl estlrnate of nernaining Fhase 1 infrastructure improverrrenls for review by

the City Engitreer, anel providing security for such and entering into a new Performance
Bsnd/Security Agr*lenrent.

r Providing a constructicn schedtrle fu: tlre City Engineer tar purposes of relalnlng a third-
party inepeetor, providing payrnent of estimatad third pariy rsview cosls, and entering lnto
a third party inspection anrJ water & sewer extension agreornent,

. lnsialling edge-of-disturbance tertcing on site lo be reviewed by the City Engineer.

r Cr:nfirntlng that allstate permits have been obtained or have been updated, as needed.

To *ty lenowlerlge, none of the above havs beon accompllshecl as of the dale of ihis letter'.

For all of the foregoing reasons* your Building i:orn.rit #?01fi-Ot}2g3 is declared expirect and
invalirl. lf you deslre, you may sublnit arr application for a new buikJirrg perrnit. As a cor.lrtesy, tlr*
fee ;:ald for the expirerl perirrit rrray be credited lawards the new appllcation fee prcvideeJ tlre
applica{ion is lited wlthin *ix (6} monlh* r:f lh* riate of tlris lctter. Please note thal as pad oli suc}r
appiication, you will be required to submit revised and updaterl plans and specifications for your"
project io derncnstrato compliance with tho !!lq edition of the l8e and ather local regulations
*urrently irr effecl,

CRO39
 itebnraly t, *0?4
llagc 4 of 4

This is a decisitttt of the BuilrJhrg lnspectar, wlrlnh you have lhe rlglit to appeal to the Builcling
*orle Boa'r:d of Ag:eals. SlroulcJ you wish tc appeaf this decision relative ta ttre application and
interpretatiun af the $tate Building Code, you havo thirty {30} days from the date of lhis letter to
fifCI an appeal. $ce Chaptor 36 ol the CorJe ol the City of Lelranori, $ectiorr 36-13,

Shoulti you have any ctuestions. please contact the City's legal counsef, elrristine Johnston, at
(6031 792-7417 or by e-rnaif at qightstqn@$smla*Lc.snt.

Bincerely,

T ..*

Calvin H R ng tn$pector

Attachnrents
. BulfrJlng Permit #2016-fi0293 imarked *expired" as of the date of this notice}
+ Letter frorn Lyrne Properties datecl Decernber 9, 2021
. Memc from the Buildlng lnspeclor deted January 18,2A22
. Letter fiom Lyme Preiperties dated fulay 3,202?,
. E-rnait frorn tho Planning & Development Director sent May 27,2A27
e t-etler from the Building lnspector dated May 27,2A22
e Letter fi'om l-yme Properties daled December 9,2(\22 {witllcrut attachnrents}
. Letter from the iluilding lnsp*ctcr dated February 15, ?023
* Letter from Lyrne Properlies dated March 7,2#23
. Letter from ilte Building lnspectcr clatecl Marclt24,2il23
* E-mailfronr Chet elem sent April '10, 2023
r Appeaf of Administrative Decision lry Lyme Froperties dated April 25,2029
. Draft 7111t23 Euilding Cade Board of Appeal* Meeting Minutes
r Letter lrom Lyme Froperties dated August $,3023
* H-rnail fram Chet Clem sent Augusl 4,2023
t Lettor from Lyrne Froperties dated January 5, 2024

cc: Shauir Mullholland, City Manager

Eavid Brooks, Dcputy City Managor
Nalhan Rcichert, Flanning & Dcveloprnent Direetol'
Thn Corurin, Deputy Plannlng & Develnpnnent Dirp.ctor
Clrristine Johnston, Esq", Dnrmrrrond Woodsum
File

CR04O
EXHIBIT 3
\
River Park VJesl 1..<ll:a ; run, I'rl l-'l

+/a+eh-5+e24
revised March 27 ,2024
Building Code Board of Appeals
City of Lebanon
51 N Park Street
Lebanon, NH 03766

Appeal of Administrative Decision: Lebanon Building lnspector's February 1,2024

determination that Building Permit #2016-00293 has expired and is invalid

Members of the Lebanon Building Code Board of Appeals,

ln follow-up to our February 29,2024 appeal of the Lebanon Building lnspector's February 1 , 2024
decisionthatBuildingPermit#2016-00293forthebuildingatl RiverParkDrive"hasexpiredandis
no longer valid," we submit the following in support of our position that the Building Permit should
remain in full force and effect and that the Building lnspector's decision is erroneous.

It should be noted that XYZ Dairy, LLC and Lyme Properties 2, LLC have received no substantive
communication from the Lebanon Building lnspector- or any member of the Lebanon Planning and
Development Department- regarding this Permit since the conclusion of the BCBA2023-01 Appeal
on this same permit on July 11 ,2023 other than the cursory communications referenced herein.

On January 5, 2024 Lyme Propefties sent a memo to City of Lebanon Building lnspector
Calvin Hunnewell regarding Lebanon Building Permit #2016-00293 (the "Permit"), stating:
"XYZDairy, LLC is actively and diligently pursuing the construction of 'l River Park per City
of Lebanon Building Permit #2016-00293 that was affirmed as "active" by the Lebanon
Building Code Board of Appeals on July 11 , 2023."

The memo states that Engelberth Construction has been named the Construction Manager
and Elkus-Manfredi Architects continue to provide construction management services, in
addition to the other consultants on the project team.

2. As it relates to the 'lBO Days in IBC '105.5, 180 days from the July '11 ,2023 determination by
the BCBA was Sunday, January 7 ,2024. Lyme submitted the communication to Mr.
Hunnewell ahead of the 180 day deadline, in so much as there was a requirement to do so.

3. Other than a cursory acknowledgement of receipt of the January 5 memo: "Thanks for your
letter. We will get back with you next week." by Mr. Hunnewell on January 12,2024, no
additional communication was received byXYZ or Lyme until February 1,2024.

4. ln the Febru ary 1 , 2024 memo received via email and certified mail Mr. Hunnwell declared
the Permit expired and invalid:

:'ir,r'rr' rrlr'J1',Jr,;:il-lii '- '. i-ir-i t,: il'.]() n l:rr,.t::':t;'r:. r.,:ri ,f,; ::1r,,,r, ,,i,

FlEMME20240301 AF.loJBuibins rh+€dor2:1:24decnioncQt.dc

CRO48
 River Park 'v",.c:,;l i..il Lra liort, N H

It is my determination that the work on the site authorized by Building Ferrnit #2016-00293 has
been suspended or abandoned for a period of greater than 180 days. Consequently, Building
Permit#2016-00293 has expired and is invalid,
Figure 7: Lxcerpt af determinotion in February 1, 2A24 memo from City oJ Lebonan Building lnspector

A. 180 Days and Expiration under Section 105.5 of lnternational Building Code
5. The Building lnspector's determination that the Permit is expired is in conflict with the
actions and intent of Yfl Dairy, LLC (XW) and Lyme Properties 2, LLC (Lyme), and is based
upon incomplete information and an erroneous determination by the Building lnspector
that work had been suspended or abandoned for a period of greater than 1 B0 days.

6. The City's 2/1/2024 memo states "Section 105.5 ("Expiration")of the applicable 2009
lnternational Building Code (" lBC"), provides as follows:"

105.5 Expiration. Every permit issued shall become invalid unless the work on the
site authorizedby such permit is commenced within 180 days after its issuance, or
if the wark authorized on the sfte by such perrnil ls suspe nded or abandoned for a
periad af 180 days after the time the work is commenced. The building official is
authorized to grant, in writing, one or more extensions of time, for periods not more
ihan 180 days each. The extension shall be requested in writing and justifiable
cause demonstrated. (emphasis added)
Figure 2: .Section 105.5 of the 20A9 lnternotional Building Cocle as included [and emphasis added] in the City's Febrursry 1, 2024
nlemo

At no point since the commencement of work on Building Permit #2016-00293 on

November 29, 2022 has work on the project been suspended or abandoned for a period of
'lB0 days.

During XW's February - July, 2023 eflort to defend the Permit against ultra vires conditions
and the threat of revocation by the same Building lnspector under the same Section 105.5
of the lBC, Attorney Hastings for Lyme and XYZ provided a Statement of Facts and Law to
the Planning Department and Building Code Board of Appeals on June 1,20231that laid
out the interpretation of the 'l B0 day period, and references relevant case law that
substantiates what constitutes abandonment. That analysis of relevant case law has been

1
Note, Attorney Hastings Statement of Facts and Lawwas submitted to the Lebanon Planning Department on June
1,2023 in advance of the first BCBA hearing. The Planning Staffomitted XYZ's legal documentfrom inclusion in the
BCBA2023-01 Staff Memorandum and package of information that was posted the following day on June 2,2023.
That Staff Memo was delivered to the Building Code Board of Appeals and to the Appellant, and was posted
publicly to the City's website, in advance of the June 5, 2023 hearing.
2

' .1 rll'1l'i;i)lliiil:r"r:.: ri)it)!'i:'tij.ir',ri,fr;riii,,'l,t!,; lJil,,rt!.,,1

F|LENAME 20240301 AFJ oI BliBing ln$dor 2:1:24 decEis (Wy.dB

cR049
 River Park VJe:;t 1...:ballln, NH

updated in Attorney Hastings' March 27 ,2024 Statement of Facts and Law for BCBA2024-
01:

19.
This is consistent with New Hampshire case law involving the relinquishment or
abandonment of permit for the use of real propsrty, In those ca$es, there must be both an intention
to abandon or relinquish the permit and an overt failure to act which caries the implication ths
holder of the permit neither claims nol retains any interest in the permit. See Lawlor v. Town of
Salem,116 N.H. 61,62 (1976); Pike lndustries v. Woodward,160 N.H. 257,261(2010).

20.
Similarly, in cases involving a developer's vested right to complete a project, New
Hampshire courts "tend to conslrue the vesting of rights liberally." AllL Pawer, Inc. v. City of
Roehester,l48 N.H. 603, 606 (2002).
figure 3: Statement of tacts and Law, BCBA2024-07, March 27, 2A24. Attorney Philip Hastings for XW Dairy

The record reflects that at no point from July 11 ,2023 to January 5, 2024 did XYZ Dairy
show any " intention to abandon or relinquish the permit," nor was there any " overt act or
failure to act" that would justify the determination that the permit has been abandoned.

Ouite the contrary, XYZ was working continuously, diligently, and in good faith to re-start
and to advance the work approved under the Permit following the Staff-caused delays in
2022-2023.

An overview of XYZ's actions to this effect from July, 2023 to February , 2024 are provided
herein in Section D.

7 . Any temporary suspensions of work have been due to actions beyond the control of XYZ
Dairy or Lyme Properties, and the delays {rom 2022-present are specifically due to the
decisions and actions of the Lebanon Planning Department.

This matches the long pattern of delays that X\.Z has suffered in the course of Lyme's effort
to construct 'l River Park under building permit #2016-00293.
a. The 2016 mobilization was stopped by Municipal issues.
b. The 2018 mobilization was stopped by Municipal issues.
c. The 2020 mobilization was stopped by the NH Governor's declaration of emergency
during the Covid-19 pandemic.
d. fhe2022 mobilization was stopped by Municipal issues, resulting in the Appeal
BCBA2023-1 before the Lebanon Building Code Board of Appeals.
e. fhe2024 mobilization has now been putat risk by Municipal issues again, given the
Building lnspector's determination that our permit has expired.

B. Addressing Building lnspector's arguments of suspension and/or abandonment

B. The Building lnspector's February 'l memo provides four (4) excerpts from Lyme Properties'
past communications regarding the status of work on Permit #2016-00293, to purportedly

lir,ri:'r: iit-r i.r,,'i, ,,il0ir . l.:r:6LlJ i'li-' i;'.'tl) * ::lt.t.::11;J,;i'i'rl'.,.11;:.ll..ir;r:ii,,lr ri: i.,.rl,r

FIEMM€424G01 A#.loIBuildingln+dot2:1:24deckioncqy.dB
CRO50
 Qiver Parkii 1l,jcr;i i.i.: bii i ti;t t, i\J

establish that a suspension or abandonment of work has occurred. Those four excerpts are
addressed as follows:

9. Example #1 provided in Building lnspector's February 1 , 2024 memo

a Per your March 7,2023letter to the Building lnspector: "Once the pipe was located worlq
ceased to avoid potentially damaging the existing, active lirre that was initially reported to
be clay."
figttre 4: Item #1 on Poge 3 of I of City of Lebonon Feb. 1.2A24 Mento

The March 7 ,2023letter from Lyme referenced here is in response to the Building
lnspector's February 15, 2023 communication- after 68 days- in response to the December
9, 2022 communication that XYZ had commenced construction on the work under Permit
#2016-00293.

Broader context of the sentence excerpted by the Building lnspector helps inform the
reason behind the cessation of work at that time:

After repeat delays encountered during 2022, we commenced excavation of the 1 River Park
foundation in good faith and in earnest on November 29,2A22. The loundation had been staked
prior to commencement of work by Nott's Excavating using their GFS system loaded with the
approved River Park plans. Nott's began carefully excavating along the east side of the foundation
to daylight the pipe. Once the pipe was located work ceased to avoid potentially damaging the
existing, active line that was initially reported to be clay.

As my December 9,2A22 memo outlined I cannot proceed any further on the 1 River Park
excavation until the conflict is addressed, and given that it is municipal infrastructure that solution
must be coordinated with the City of Lebanon. The first meeting with City officials from the
Department of Public Works was on December 15,2022, and David Erooks' February 2,2A23
memo outlines potential solutions, I have subsequently been working with TF Moran, our engineer
of record, to develop potential solutions in response.
Figure 5: Excerpt lrom March /, 2023 nremo Jran Lyme Praperties in response Io City of Lebanon Building lnspector's February
15, 2023 connlunicotion .

There is no question that the work that commenced on November 29,2022 ceased upon
the locating of the pipe, as it was XYZ's legal obligation to seek and obtain direction and
approval from the City of Lebanon for the handling and proposed temporary relocation of
the municipal stormwater line in question.

The March 7 ,2023 memo provides two pages of "Additional information regarding efforts
to commence construction of 'l River Park" to substantiate Lyme's work in defense of the

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FILENAME 20240301 ptraloi Blilding rn*dor 2:1:24 d€cblon c$y de cR051

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River Park Vlc:;t i.*lbailon, NH

Building lnspector'sthreat, in his February 15,2023 memo, to retroactively revoke the

Permit effective January 13,2023.

At no point from the commencement of work on November 29, 2022 and the
communication to that effect on December 9, 2022 to the City of Lebanon would the "work
ceased" be reasonably assumed intentional or permanent.

ln fact, it was XfZllyme waiting two months for a response from the City of Lebanon while
continuing to advance work on the Permit, conversations with tenants for the building in
question, and potential partners at the State and Federal level in the pursuit of the River
Park plan.

10. As Attorney Hastings' June 1 , 2023 Statement of Facts outlines in item A.1 3, no substantive
response related to the Building Permit was received for 68 days following XYZ's letter
notifying the City:

13.
Other than cursory acknowledgemenls of the Appellant's December 9 letter, the
City did not respond substanlively with regard to the Building Permit until February 15. 2023 (i.e.,
68 days later), at which time the Building Inspector requested additional information "in order 1o
nrske a detenrrinatio$ as to whcther work has commenced far purposes cf demonstrating
compliance with Section 105.5 of the IBC flnternational Building Code] (rvhich provides that,
'[e]very permit issued shall become invalid unless the work on the site authorized by such permit
is commenced within 180 days after its issuancef.]"'
Figure 6: Factuol Background lten A.l.j, "Statentent of Facts and Low," Attorney Philip Hastings for XYZ, june 1, 2023

11 . 13 days prior to the Building lnspector's memo of February 15,2023 and 55 days after
receiving the Commencement memo from XYZ on December 9,2022, on February 2,2023,
an email from Deputy City Manager David Brooks was received- with apologies for delay-
that provided clear direction for dealing with the pipe in question. Until that point, no
further action could be taken on the pipe by XYZ.

Additionally, the City's moratorium on excavation during winter months factored into the
timing of any potential solution, supporting XW's position that there was no additional
construction effort that could have been undertaken in the City's R.O.W. to end the
temporary suspension.

1 2. lt should be noted that Lyme Properlies had raised the issue of the municipal stormwater
line proactively and repeatedly, including its inclusion in the March 25,2022 memo to City
Manager and in resultant conversations with then Director of Planning David Brooks and
members of the Lebanon Department of Public Works in the Summer of 2022, with no
resolution.

13. Upon receipt of Mr. Brooks'email on February 2,2023, the City's instructions were then
forwarded to TF Moran (the Engineer of record) and a Zoom meeting to discuss the
5

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 River Park V'le:.;t 1..t,: balti:t t, hj H

engineering solutions was scheduled for February 17 ,2023. A follow-up email that day to
TF Moran memorializes the discussion, which resulted in a Professional Service Order from
TF Moran for additional services to design and engineer an alternative permanent solution
for the off-site stormwater.

That proposed work by TF Moran was temporarily suspended by XW during the 2023
delays resulting in BCBA Case 2023-01

14. The aforementioned information provided is indicative of the work that was underway to
address the underlying and unresolved issue, and disproves the Building lnspector's
insinuation that Lyme's March 7 ,2023 memo reflected any true suspension.

15. Example #2 provided in Building lnspector's February 1,2024 memo

a Per the draft July 11, 2A23 Building Code Board of Appeals meeting n'rinutes: "Work has
been suspended because of this hearing."
Figure 7: ltem #2 on Page 3 ol 4 of City Lebonon !:eb. 1,2024 Memo

'16. Lyme's testimony at the July 11 2023 Building Code Board of Appeals- which the Building
,
lnspector was not present for- related to the temporary suspension of effofts due to the
ongoing discussions between the City and X\.Z that resulted in the Appeal before the
BCBA.

17 . By the time of the July 1 1th hearing, the Building Permit had been in limbo for 226 days due
to the threat of revocation and work had been temporarily suspended accordingly while
Lyme awaited a determination regarding the ultravires conditions. PerAttorney Hastings'
June 1 ,2023 Statement of Facts and Law submitted in the course of BCBA2023-1:

20. Without such inlormation fronr the Building Inspector, continuation of the
constluction work under the Building Permit is practically and economically unfeasible, as it
would entail substantial investmenl of resources and cfforls without assurances that the Building
Permit will not be revoked.
Figure 8: Factual Eackgraund ltem A.20, "Statement of facts and Law," Attorney Philip Hastings, June 7,2023

At no point between December 9 , 2022 and July 11 , 2023 did XW permanently suspend or
abandon Building Permit #2016-00923. Rather, work could not continue untilthe
disagreement with the Building lnspector's new conditions and the subsequent Appeal had
run its course.

18. Upon the BCBA's determination on July 11,2023 that the Building Permit was in-fact in
effect, XW worked to re-start the project afLer 226 days of delay, of which 77 days were
spent on the BCBA appeal.

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 River Fark \t',bsl i..i.i;e r r;:l t, NH

19. Of particular impodance to the status of the Permit and the outcome of the July 11 , 2023
hearing, in the June 2,2023 Staff Memo from the Planning Department on BCBA2023-01
Planning Director Nathan Reichert the Permit "was allowed to expire by the Applicant"

a An Appeal of the Building Officials Determination was filed on

April2Sth 2023.
a May 29th 2023 without the benefit ol an extension request the
permit wa$ allowed to expire by the Applicant.

PHOPOSAL
The applicant i$ appealing the Notice ol Violation Dated April 191h 2023
and May l6th 2023.
Figure 9: StaJf Metnorandunt far June 5, 2023 BCB,A2023'01. heoring the BCBA.

This erroneous statement, along with the subsequent errors that XYZ was appealing two
Notices of Violations, fufther jeopardized the Permit, confused the Appeal process, and put
additional false statements about XYZ/Lyme into the public record.

20. Example #3 provided in Building lnspector's February 1,2024 memo:

a Per your August 3, 2023letter to the Building lnspector: "Following the determination of
the Appeal Board, we have restarled conver$ations with project pafiners lhat were
suspended because of your February 15,2023 communication""
Figure 70: ltem #i on Page 3 of 4 of City of Lebanon Feb. 1, 2024 Merno

21 . Mr. Hunnewell makes reference to an August3,2023 memo in which XW, again, requested
that the Building lnspector approve the connection to the temporary stormwater bypass
line that had been previously installed by XYZ under means and methods of the 'l River Park
building permit to enable the temporary re-routing of the conflicting stormwater line.

The purpose of that memo is excerpted here

Now that the Building Code Appeals Board confirmed on July 1 1, Z9?3 that we have commenced
construction on 1 River Park Drive, we seek your approval of the temporary relocation of the
municipal/NH DOT stormwater line that impacts our property without benefit of an easement.

Please note that this request is distinctly related to connecting to the temporary connection that hal
already been designed and installed under rneans and rnethods of the 1 River Park building permit
(42016-AA2q3). lt is independent from the final stormwater design as presently ap-ffaved,-e$d can
proceed independent from the ongoing conversations about an alternative solution as
memorialized in the February 2,2023 cornmunication from Deputy City Manager David Brooks. The
temporary solution is under the .jurisdiction of building permit #2016-00293.
Figure 11: Excerpt.from August j, 202j menta lrom Lyme requesting permission to cannect temporary bypass line

7
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22. fhe August 3, 2023 memo was relevant to concurrent conversations that XYZ was having
with Engelberth Construction (see Section D) as to whether any of the 2023 construction
season could be salvaged by proceeding with excavation of the 1 River Park foundation
after the 7 months of delay caused by the City of Lebanon.

XW's attempt to seek this approval was stymied by the City's decision to reject the request
to make the temporary connection, against the advice of XYZ's Engineer and Construction
Manager.

23. Example #4 provided in Bullding lnspector's February 1,2024 memo

t Per your August 4, 2023 e-mail to David Brooks: "the City's pipe is preventing work on 1

River Park from continuing".

Figure 12: ltem il4 on Page 3 of 4 of City of Lebsnon Feb. 7, 2A24 Mema

It is not clearthe lnspector's intent in including this excerpt as it references the ongoing
conversations between XYZ and the City of Lebanon to address the municipal stormwater
line interfering with 1 River Park construction.

The communication itself documents that XYZ was actively pursuing work on the Permit in
August, 2023 following the July, 2023 BCBA determination. The very same work that XW
had set out to accomplish on Novemb er 29 , 2022, and was then seeking to restart.

Again, a review of the communication from which this single sentence is pulled provides
context that disproves the lnspector's position that no work was underway as of August 4,
2023:
Oalid,

TIK City was Ccf od nll tha ffisbaliont (ogsrdt€ lho AOT pormit rbef, il sas dxteoded bdck in ?0m, and lF Mo.6n addrmsod lhis
lsue wilh l,lHDEPl

Additionally,, the appticant is proposing a minor plan cirngc 1o ihe approved drawings. Thc change
consists ofrclocating the city-orvncd discharge of an cxisling I 8" stormwatcr culvert on thc propcrJy
in order to construcf thc foundation of 100 River Park Drivc on Lot l, Thc proposed clrangc rneets
all the requircrnenls under Env l\tg 1 503.2 I (d) undcr changes that can b* made without applying lor
an amcnded pcrmit or neiv pcnni!. As such, we belicvc thesc changes mcet lhc intenl ofihc
regulations to pennit modifications to thc Approved Projcct.

I uldoryland the addrlsal reguremnls as it.elates lo a pemaE6nt sofutt's!, bul il ronains our posilion lt!6l th6 {snporary $olu&rn is
slhin fie C{y's idrisdicl'on to approvo thq ldmporary re.rnling und8r lhc brrild;no pd,mil. Ths mMlim m hdppdf, oi Rudl P6rk
propcrlt. oulsids lrre rtlhl ol way.

Ibe Progan! cofidirift i$ in facl 6lso a aomporay soiulrm as lhe pipB wa9 /cd(ocrod lo ils c{rtrsrt roulc ef$r lh€ lotr€r 6ity Eogioelr
appmwd silo wod( llro{ bloclod lhe tpo. requtriAg lho csrcnl ,c{ouling altcr ,l backed }p.

Ho* lhe Cily wishe$ to hRtdie his ls youi pr€rogalive, bot the City3 ipe is ptcved'ng work on I R,ver Park tom mtinrrir8. & *o!e bolh
nm noled, $i3 01pe daGs Rot se^a Fse. Park *hatsoerer and is eriaustrg oil our goperly wthod ea$rent

I {ook l6i{ard lo tocai$rng th€ Cdyb propos€d solutof lor droviry {s Fipe dut ol lho ndy sd wi tqk ca4 conrilw.
Thark you,
Ch6t

Figure 73: Besponse .fram Chet Cletn of L.yrne Properties to Deputy City Nlanager David Braoks on
August 4, 2023 regarding the City's rejection of XYZ's request to connect the tetnporctry bypass line

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q River Park l'rlel;1 i.t;l-ralri:n, i\JH

This communication from Lyme goes to substantiate that the ongoing delays in August,
2023 are due to XYZ/Lyme waiting on the City of Lebanon to make a determination on how
to handle the City's pipe, and that the City's position is in conflict with the project team's
recommendations, and that the proposed solution by XYZ was in fact approved by the
NHDES in the 2020 extension of the Alteration of Terrain permit and was communicated to
the City in 2020.

Mr' Hunnewell's February 1 ,2024letter provides summary of the same back-and-forth

communication on August 3'd and 416,2023 between Lyme and the City, which confirms that
efforts were underway in August,2023 to re-staft and continue the work authorized by the
Permit.

24. fhe Deputy City Manager communicated that the temporary stormwater line was not under
the jurisdiction of the Permit and must instead be taken up with the City's Department of
Public Works. XW continued to object to that determination, but proceeded as directed to
take up the issue with the DPW.

Following the dismissal of your appeal, you wrote in a letter dated August 3, 2023, that "ftJhe only
thing that remains to allow work to continue on the excavation for 1 River Park is the connection
of the existing line to the temporary line on Lot 1"" By e-mail sent on the same date, Deputy City
Manager David Brooks explained that your questions regarding the Route 10 stormwater
connection issue should be addressed to the Department of Public \&orks and not to the Building
lnspector. By e-mail sent to Mr. Brooks on August 4,2A23, you reiterated your position that your
proposed Route 10 stormwater connection "temporary solution is within the City's jurisdiction to
approve the temporary re-routing under the building pernrit".
Figure 14: Excerpt from Poge 2 of 4 of City of Lebonon's February 1, 2024 communication.

25. A subsequent meeting between Lyme and member of the Lebanon Department of Public
Works occurred at the River Park site on August 17 , 2023 to review the temporary
stormwater connection and efforts to connect it, as well as discuss the long-term solutions
proposed by XYZ and under analysis by TF Moran.

ln keeping with the City Manager Shaun Mulholland's April 24,2023 communication of his
new policy that all meetings between the City and Lyme be recorded, that on-site meeting
was audio recorded by the Lebanon DPW and subsequently shared with Lyme upon
request.2

2
Audio recording of August 17 , 2023 site visit by Lebanon DPW is accessible online via link in Appendix F
9

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C. Lack of evidence and changes to the project site

26. The lnspector's February 1 , 2024 memo, in his arguments that work has been abandoned,
goes on to state: "Also, I have observed no work occurring at, or changes to, the site on
mu ltipl e drive-by i nspections conducted th rou ghout 2023."

The statement "no work occurring at, or changes to, the site...throughout 2023" is factually
incorrect.

XW would request that any notes and/or photographic evidence to that effect made by the
Building lnspector during these "multiple" inspections be provided to substantiate that
claim.

27. By example to the contrary of the Building lnspector's claim that no changes had occurred,
on both September 12,2023 and September 26,2023, significant changes occurred to the
River Park site, specifically including Lot 1 and the surrounding area.

The construction fence was relocated and expanded to secure the site, and was specifically
erected in a manner to provide security for the construction efforts on 1 River Park and the
remaining Phase 1 lnfrastructure.

Previously, the fence had not included the Route 10 Southern Entrance area so as to allow
ongoing public access to the trails and riverfront at River Park.

28. The elimination of the previous public access provided was in response to the Staff's actions
and determinations during the Appeal of Administrative Decision P82023-23-AAD
before the Planning Board that XYZ had made "unpermitted site improvements."

XYZ believes that the Staff's statements in writing in Staff Memo P82023-23-AAD and as
reiterated in testimony were incorrect, and sought clarification in testimony at multiple
hearings as to the legal justification(s) of those statements.

Absent those statements being rescinded by the Staff, documents submitted to the
Planning Board and Building Code Board of Appeals and recorded statements in the public
record claimed that XW was in violation of City laws. That created a liability issue for XYZ,
and negated the insurance policy that X\.Z and Lyme had paid for every year in order to
provide public access through the construction site to the publicly accessible trails and the
waterfront parcel owned by the Friends of River Park.

Given the loss of liability insurance, and on advice of Counsel, the "attractive nulsance" was
eliminated and the active construction site secured while XYZlLyme determined next steps,
and worked to re-start the work for Permit #2016-00293.

10

FILENAME 20240301 AftloI Buiglng lfl#dor 2i1:24 de.hion c+y dd

CRO57
 fiiver Park Vurc:.;t i..ilbalrorr, fu H

D. XYZ's Actions to Actively and Diligently Pursue Permit #2016-00293 since July 11,2023

29. Following the BCBA decision on July 11 , 2023 XYZ Dairy initiated the process to re-start the
development of 1 River Park under Permit #2016-00293 that had been put in limbo for
seven (7) months by the actions of the Lebanon Planning & Development Department.

30. On June 1 ,2023, XYZ and Engelberth Construction met via Zoom to discuss 1 River Park,
Phase 1 lnfrastructure, and howto salvage the2023 construction season. Thiswas in follow-
up to a phonecall on May 17 , 2023 between David Clem of XYZ and Chris Yandow of
En gelberth Construction.

Engelberth was engaged to perform pre-construction services with the initial task- given the
ongoing BCBA2023-01 Appeal case and the perceived hesitance of the market given past
false-starts- to provide internal estimating of the remaining work, to inform XW's decision
making on 1 River Park and Phase 1 lnfrastructure, and to inform the request byXYZfor
Amendments to the River Park approvals that were before the Planning Board
simultaneously.

31. On June 21,2023, Engelberth provides XW with initial pricing based upon internal analysis
and budgeting.A

32. June 27 ,2023 Elkus Manfredi delivers the 2023 Code Review prepared by sub-contractor
Commercial Construction Consulting, lnc. (C3), updating the the 2019 Code Review C3 had
previously conducted under the direction of Elkus Manfredi for the 2020 mobilization.B

This was in response to the changes in the relevant codes related to 1 River Park that had
been adopted by the City of Lebanon since the Permit was applied for in 2016 and issued in
2019.

These code changes, and the City's concerns that they be incorporated into Permit 2016-
00293, were outlined in the Building lnspector's May 27 , 2022letter granting an extension
of the 1 River Park permit.c

33. AttheJuly 11,2023 hearing of the BCBA, the Board confirmsthatthe Permit is active and
in effect, eliminating the confusion caused bythe June2,2023 Staff Memo (ltem 21, Figure
9) and previous communications.

34. July 17 ,2023 XW met with Engelbefth Construction at 57 Main Street to review the June
19, 2023 estimates, and discuss re-commencement of work in 2023 to complete foundation
before winter, the cost of incurring Winter Conditions, and the challenge of completing
changes in the Route 'l 0 R.O.W. prior to the excavation moratorium in local ordinances that
had been invoked in 2018 to halt construction efforts at River Park.

11

FILENAME 20240101 AFalol Building lnFdor 2:1:24 decLbn c+y.dq

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q R$ver Park \t',jer:;l l..cbairi:;rr, NH

35. On July ,2023, David Clem of K{Z Dairy, LLC emails the 1 River Park project team (Elkus
31
Manfredi Architects, AHA Engineers, TF Moran, McNamara Salvia) to inform them that XW
has engaged Engelberth Construction as CM and requests any updated fee proposals as
necessary.D

36. On August 3, 2023 Lyme sent a memo to Building lnspector Calvin Hunnewell, and Cc-ing
members of the Lebanon Planning & Development Department and Department of Public
Words, seeking "approval of the temporary relocation of the municipal/NH DOT stormwater
line that impacts our property without benefit of an easement" under Permit #2016-00293.E

Now that the Building Code Appeals Board confirmed on July 11 , 2023 that we have commenced
construction on 1 River Park Drive, we seek your approval of the temporary relocation of the
municipal/NH DOT stormwater line that impact$ our property without benefit of an easement.

Please note that this request is distinctly related to connecting to the temporary connection that has
already been designed and installed under means and methods of the 1 River Park building permit
(#2016-CI4293). lt is independent from the final stormwater design as presently approved, and can
proceed independent from the ongoing conversations about an alternative solution as
memorialized in the February 2, 2023 communication from Deputy City Manager David Brooks. The
temporary solution is under the jurisdiction of building permit #2016-00293.
Figure 15: Excerpt from email from Chet Clem to Calvin Hunnewell, August 3, 2A23

37. On August 3 and 4, 2023 there is the exchange between Lyme and the City of Lebanon
pertaining to XW's August 3'd request. Deputy City Manager David Brook's response that
the connection cannot be made on a temporary basis to enable work to re-commence on
the 1 River Park permit creates an additional hurdle for work on 1 River Park to continue in
the Summer/Fall of 2023.

Lyme's August 3,2023 memo outlines the distinction between the temporary connection
and the final stormwater design.

The August 3,2023 communication from Deputy City Manager David Brooks makes
reference to Mr. Brooks' February 2,2023 email outlining steps for XW's previous proposal
to turn the temporary connection into an alternative final stormwater design.

It was then, and remains now, XYZ's position that the temporary connection was permitted
to be completed under Permit 2016-00293, allowing the 'l River Park construction to
proceed and the final stormwater solution to be determined.

Mr. Brooks February 2,2023 email was helpful in providing guidance as it relates to the
alternative final design, and was forwarded to XW's Civil Engineer at the time and
discussed via conference call on February 17 ,2023. However, the February 15,2023 memo
received two days prior, and the subsequent actions of the Planning & Development

12
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Department related to BCBA2023-01, delayed further action on completing the engineering

work in response to Mr. Brooks' February 2,2023 communication.

38. XYZ's Civil Engineer TF Moran had previously communicated the temporary bypass line to
the NH DES on August 4,2020 in a requestforextension of the Alteration of Terrain permit
(AoT-0994).

Additionally, rhe applicant is proposing a minor plan changc to the approved drawings. J'he change consists
of relocafing lhe city-owned discharge of an exisiing IB" slormwater culr,ert on the properfy in ordcr fo
conslruct fhe for.rndafion of 100 River Park Drive on Lot I. The proposed change meets all the requircrnents
under ljnv Wq l5t]3.21 (d) under cltanges that c.an be rnade rvitlrouf applying for an amended perruit or oelv
perrnit. As such, rve beiieve these changes mcet the intcnt of the reErlotious to perrnit nrodifications to thc
Approved Project.

i
Figure 76: "friver Park, AoT-0994,I'ax Map 44 Lot & 7, Tax Mop 57 Lot 27, West Lebanon, NH" Letter Jram Jason Hill, P.E, TF
Moran on behoff af XYZ Dairy, LLC. to Ridgely Mauck, P.E. NHDES * Water Division, Augu.st 4, 202A.

The extension of the AoT was approved by the NHDES in the October 30,2020 Alteration
of Terrain permit extension (AoT-0994A). The City of Lebanon was copied on both the
August 4,2020 communication from TF Moran and the October 30,2020 response from
NHDES.

The temporary bypass line was installed in December,2021 by Nott's Excavating from plans
provided by TF Moran. Nott's was mobilized on-site for punch list work on Crafts Avenue
Extension, and given the challenge of securing contractors in the Upper Valley in the Covid-
19 era,XW had the bypass line installed in advance of work on 1 River Park that was
anticipated for 2022.

39. At the suggestion of Mr. Brooks, on August 17 ,2023, Chet Clem of Lyme Properties meets
with Rod Finley and Brian Vincent from the City of Lebanon Department of Public Works on-
site at River Park to discuss the temporary stormwater connection, as well as the proposed
permanent connections that TF Moran is developing.

ln keeping with City Manager Shaun Mulholland's April 24,2023 policy determination that
all meetings between City Staff and Lyme Properties be recorded, the meeting was audio
recorded.F

40. On August 21,2023, in a Zoom meeting with Engelberth Construction following

confirmation that the City would not permit the connection of the temporary stormwater
line under Building Permit #2016-00293,XYZ and Engelberth determine that attempting to
re-start the work on the foundation of 1 River Park in 2023 is not feasible.

The decision is made that the 2023 Construction season has been lost due to the delay
caused by the Planning Department, and that any further progress was stymied by the
inability to temporarily bypass the Municipal Stormwater line.

13

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 River Park VJcr;t l-t::bai r;;l t. NH

XW engages Engelberth to re-price the entire building and infrastructure for the Spring,
2024 construction season and to develop a GMP Contract to that effect.

41. On September B, 2023, Engelberth Construction and Elkus Manfredi memorialize their
communications to make the necessary changes to project documents to re-bid the project,
pending XYZ's ongoing amendments before the Lebanon Planning Board.c

42. On September 12, 2023, following the re-affirmation by the Planning Staff that
"unpermitted site improvements" were in violation of the River Park Site Plan, access to
River Park is closed due to the resultant liability issue the supposed violations pose to XYZ,
Lyme, and the Clems. Over the course of that week, the improvements are removed and a
temporary fence is erected

43. On September 26, 2023, Round Hill Fence adjusts the Construction Fencing at River Park to
secure the site in a configuration that allows for construction of 1 River Park and Phase 1
lnfrastructure work, and secures the construction site from public access.H

44. On October 1 , 2023 XW authorizes Elkus Manfredi to release C3 to make necessary Code
updates.l

45. On October 6,2023 XW executes the updated Elkus ManfrediArchitects Contract.J

46. On October , 2023 XYZ directs Engelberth to go to the street on Phase 1 lnfrastructure,
11
and requests that Engelberth prepare a Tenant lmprovement budget for the 3'd floor space
in support of the leasing conversations.K

47. On October 16,2023 XYZ submits a formal Lease Proposal and Letter of lntent to advance
ongoing discussions with a prospective Life Science tenant interested in the Third Floor
laboratory space at 1 River Park.L

48. On December 13,2023 Elkus Manfredi supplies updated Code Report to XW and
Engelberth Construction.M

49. On December 18,2023, at a regularly scheduled meeting of the West Lebanon

Revitalization CommitteeN, WLRAC member Kim Chewning and Lebanon Planning Board
member and NH State Representative Laurel Stavis asked question of the Lebanon Planning
Department regarding the status of River Park.

Deputy City Manager David Brooks states (at 1B:33) " Note for the record there is still a
building permit in their hands. "

14

iririril'- .rLt.: ili, ii)\':t_t . :.:. r]1- Tillal n frr:.;,: rilirllii,:j',,,rIr iil,, 'iji:.:1.:11]r:|.!|rl
'l).1
F|ENAME 2024030l Aralot Building rn+dor 2:1:24 d€(bion c$y.ds
CRO61
\
River Park li"fu :;t i..c ba irlrn, JV H

Lebanon Planning and Development Director Nathan Reichert goes on to state (at 21:09):
"The building permit still is in place, the planning approvals are all still in place, they would
have to meet the standards laid out in those planning approvals in order to move forward."

Of note, no communication of these questions or that there was a public conversation

about the River Park property status, was ever made to XYZ/Lyme by the City.

50. On December 29,2023 Elkus Manfredi sends proposal for updated drawings for 1 River
Park.o

5'1. On January 5,2024 Lyme submits a Memo to the Lebanon Building lnspector updating him
on XYZ's ongoing work on the 1 River Park project.P

52. On January 12, 2024 Calvin Hunnewell responds that the Staff will be back in touch the
following week.o

53. On January , 2024, Lyme submits a letter to the Lebanon City Council regarding the
17
discussion of a West Lebanon Tax lncrement Finance (TlF) District and the role that River
Park can play in it, as expressed in numerous previous communications to the City of
Lebanon.R

54. On January 26,2024, Lyme communicates to'the Lebanon DPW that AHA Engineers in
seeking updated water flow data for the purpose of updating 1 River Park drawings.s

55. On January 29, 2024, David and Chet Clem have a teleconference with Elkus Manfredi to
review updated interior finishes for 1 River Park.r

56. On February 1,2024, David and Chet Clem travel to Massachusetts to meet with a potential
tenant for 1 River Park that specifically addresses a critical need in West Lebanon and the
Upper Valley.

Following that productive meeting and site tour, the mutual decision is made to advance
architectural work to determine the feasibility of this user in 1 River Park.

57. Later on February 1,2024, the Lebanon Planning Department sends the expiration and
invalidation memo, 27 days after receiving Lyme's update as to the status of the project.

58. An updated set of Construction Documents incorporating the aforementioned work was
provided by Elkus Manfredi on February 23,2024.u

59. A project update was provided by Engelberth Construction on March 26,2024 outlining the
work underway to re-bid the project and coordinate with necessary parties.v

15

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FILENAME 20240301 Atralol Slildins rnfdor 2:1:24 de€i5ion c$y.dB

CRO62
 Park
River" i.cl;aillrn,
\ Vlcr;t NH

E. Filing of BCBA Appeal BCBA2024-01

60. On February 29, 2024 XW and Lyme submitted Appeal BCBA2024-01 to the Lebanon
Planning and Development Department via email, and Cc-ing all Lebanon representatives
that were included on the Building lnspector's February 1,2024 memo: City Manager Shaun
Mulholland, Deputy City Manager David Brooks, Planning Director Nathan Reichert, Deputy
Planning Director Tim Conryin.

61. On February 29,2024, Planning Director Reichert responded, suggesting that the Appeal
would need to be filed in person at City Hallthe following Monday:

Nathan neichert
ffi nE; {€xr[Rl.rAt] 6cBA Appeat - Bsilding Permit t2o16-00293
16: lj!]st {:ir}!, t:;ty $ l.r:t a'r)t;i.|::r,,id::rj,
tliile
Cu t'l,r*i!\ rt .tr,!ri:.r.', i)n\':t i ,.jrl.r. :ii!1 CO:*i'; r:tir:i r i i3ji ,':4.:
r\rir.:;'1J ljr{,il:iil,

Mr O6m
Uolort naloly. City Hall is closod on Fdday Marcn t st 2024. You will msd to til6 ydr che.* ard sppsal hoie st Cily
I'lall s Moday 4 Marcfi 2.0?4 beiwn 7OO AM atf,l 5:00 PM.

Ci{y Hall! regulat houfi sre Msday ^ Thurday 7100 AM . 5:00 PM.

Thaok you.
Nale

Nalhefi ffshh€rl
Plandtrg and Deo!@mnt Dield
City ol Llbanon Nff Hffip€hka
{ailtnri,Ssjgre!1gldrs!1(ult!.$s!
603.&ts.152{

Figure L7: Email from Nathon Reichert to Chet Clem, February 29, 2024.

62. This determination was a departure fromXYZlLyme's previous experience in which

electronic submission of Applications was accepted practice. The calculation of the
Application Fee has been determined by the Planning Department's Administrative staff
subsequent to submittal due to past issues with the City's records and determination of
appropriate abutters.

63. Mr. Reichert's instruction that "You will need to file your check and appeal here at City Hall
on Monday 4 March 2024between 7:00 AM and 5:00 PM" meant that the Appeal would
not be filed ahead of the 30-day deadline to Appeal.

Given that Mr. Reichert sought to have #BCBA2023-01 dismissed on grounds of

"timeliness," XYZ/Lyme exhausted all efforts to ensure the Application was received in a
timely fashion, as outlined in Attorney Hastings' follow-up email on March 6,2024 when
XYZlLyme had received no response for 1 week:

16
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Piror,:: I'ft :1 11lij TEijlr r iix: oLl,l .6lri 7if i,l . f1r1.-1rl l11ir,:{Q;irlsrPr:rl:rr,r:,tir:lr:r',rr' ,:'-rl,

FIEWE 2024@l AFalol Auildiry lnFdo.2:1:24 decEion cqyi6 CRO63

q Kiver ?,ler.;t
Pmrk
1..,: l:lr r,:';n, fu H

Philip Hastings ). : :, ..
lll-: itXl fliNAi.l 8C$A Aflpeal . tiuiidinq Par,rit t;2616-C0?9:J
Tc: liilJ i,,]i- : ,, I iia,l
Cc:'::1,,'1:1:r:;.'::...: i.,..-..riii't,', ii,i:ili,.,j jir.. .,. i
i lr. i i : r i, . , . j:.ii! i. L, J:, :

Nate *
I understand thal XYZ Dairy LLC and Lyme Propertios 2, LLC havo filsd an appeal to tho
Building Code Board of App€als of the decision by the Building lnspeclor that lhe above-
refetenced building permit has expired. The appeal was liled electronically lo your oflice
on February 29, 2024, and hand delivered to lhe City on March 1, 2024 (along with the
tiling lee)^ Thai same day, out of an abundance ol caution, a copy of ihe appeal was sent
to th6 City by cerlified mail ialong wilh a duplicate check for lh6 liling fee). On behalf ot
the BCBA, please conlirm receipt ol the appeal documents and lhal this matler will be on
the agenda at its April 1, 2024 meeling.

Please let me know wh€n you inlend lo have a staf{ mernorandum and board packel
available to public and if lhere is a deadline lor lhe submission ol any supplemental
materials trom the applicant lor inclusion in the packet.

tigure 1.8: Email from Attorney Hostings to Planning Director Reichert on March 6, 2024.

64. No substantive response to XYllyme's Appeal Application or Attorney Hastings'

subsequent March 6 email was ever received from the Lebanon Planning Department.

Per Attorney Hastings' March 19, 2024 to the City's Attorney Matthew Decker: "The City
has had nearly three weeks to review the appeal. During that time, no effort has been made
by the City to reach out to XW to explore the possibility of finding a productive resolution.
The City has not even bothered to respond to my March 6 email asking to confirm its
receipt of the appeal documents. "

65. lt was not until March 20, 2024- three (3) weeks after submission of the Appeal- that
XYZ/Lyme finally received confirmation via the BCBA's Attorney Cordell Johnston that the
Appeal had been accepted and was to be considered for inclusion on the April 1 ,2024
BCBA Agenda.

A request was made that XYZ agree to have the hearing postponed until May 6,2024,
another 4-weeks of indecision and uncedainty, which would push the BCBA hearing until
after the intended start of construction.

66. Attorney Hastings made repeat requests that the Building lnspector temporarily rescind the
February 1,2024 decision, a practical compromise that respected the lnspector's authority
and the Appeal process without jeopardizing the progress that XWlLyme was making.
Those requests were summarily rejected by the City.

67 . At the time of the advertised April 1 ,2024 hearing of the BCBA, it will be 60 days since the
Building lnspector's February 1,2024 determination that the Permit was invalid. ln those
two months , XYZ/Lyme has been unable to advance work on 1 River Park, leasing
discussions with prospective tenants have been jeopardized, andXYZ/Lyme has been put at
risk of being in violation of numerous executed contracts.
17
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::riirrt,. t'il i | :',.. ,1.1t:

FIL€NAME 20240301 AFeal o{Building ln+eclor2.1:24 de.iiion c+y.d*

CRO64
\
River Park ?Je:;t i..ebani:n, NH

APPENDIXES:

0. Overview of Key Dates since July 11 ,2023 BCBA hearing.

A
20230621 Engelberth - River Park Lot 1 construction documents cost estimate.pdf
B
20230623 Elkus Manfredi Architects (EMA) - River Park 2023 Code Review
c 20220527 Letter from the City of Lebanon - Building Permit #2016-00293 Extension
D 20230731
Emailfrom David Clem to the River Park Design Team - 1 River Park Drive.pdf
E
20230803 Request for temporary stormwater connection
F
20230817 River Park Site Meeting Audio Recording
G
2O23O9OB River Park Code Review coordination between Engelberth and EMA
H
20230829 Fence estimates and communications with Round Hill Fence
| 20231031 Email to EMA Authorizing them to Hire C3 for updated code report
J 20231003 Proposal from EMA for Construction
Admin
K
20231016 River Park - Phase 1 and Tenant lmprovements
t 2023101 6 Lease Proposal and LOI
M 20231211
River Park Lot 1 Code Report
N 20231218
Link to December 18,2023 WLRAC meeting
o 20240117 EMA Conformed Drawings Package Contract
P
20240105 Memo to Lebanon Building lnspector
o 20240201 Expiration of 1 River Park Drive Building Permit #2016-00293 Letterfrom Lebanon Building
lnspector
R
20240117 Request to be included in a West Lebanon Tax lncrement Finance TIF District to the
Lebanon City Council
s 20240126 Email from AHA Consulting Engineers
to Lebanon DPW regarding hydrant flow test data
r 2O2qOl26 1 River Park lnterior Finishes Meeting with EMA
u 20240223 1 River Park - Lot 1 Construction Documents and Specs
v 20240326 River Park site and infrastructure bidding update from Engelberth

18
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llrrirrc: 6f-t l.67ir riijl!air ' :,r. tll.t |i|t:7ijir) n irIri iIi,)iii:j /lrrriirl:,,.,,ltilsltiin,tn.<r,rir
FILEMME 2024001 AF:lol Euildiry ln+dor 2:1:24 dehio. c@ydd CRO65
 Appendix 0

Work on 1 River Park . Permit #2018-00e93

Iiince July 11, e0e3 Building f ude Eoard nf Atripeals

June 1, 2023 - River Park meets with Engelllerth C0nstruction prior to first . Planning Staff argued against River Park s proposed ZtJ23
BCBA2023-01 hearinq Amendments that would have allowed project to proceed in a more
efficient manner.
June?7,2023 - Elkus Manfredi delivers Code Review
octoberl, 2tr?,3-XYl authorrzes Elkus Manfredi to do another Code Report
'11,
il0z:l - Building Code Board of Appeals determines Permit
,..1i-rly for any updates to I River Park plans, as City had been promised.
#20]6-00293 is Active, 224 davs after commencement.
Octob€r 6, ?023 - XYI executes updated E-M Architeotural Servicqs
JulV 17,2tr23 - Meetinq with Engellrerth Construction to discuss how/if we contract...for the fourth time.
corrld saivaqe the construction season after 7 rnonths of delay dealing with
Permit issue. October 16, 20e3 - Lease Proposal and Letter of lntent to prospective Life
Science tenant interested in entire Third Floor
July 31, 2023 - Re'engaged Elkus Manfredi Architects. AllA Engineers. TF
Moran Enqineers. McNamara Salvia Enqineers and requested updated 0ecemher 13, 2OZg - Code Report delivered.
ccntracts.
Ilecember 29, 20e3 - Elkus Manfredi sends proposal for updating drawings.
August 3, 2023 -
Emailed City requestinq permission to connect temporary
bypass line under Means and Methods of Building Permit as had been - Priu t0 lB0 daVS from 7/11/2D23. Lyme subrnits update
January 5, 2tl24
approved bV the State of New Hampshire. memo to Lebanon Building lnspector:

August 4, 2023 - City rejects soiution, requires meeting with DPW and 'We have named Engelberth Donstruction as our Eonstruction Manager, and
additionai engineering work to be completed...w0rk that is only relevant to the along with Elkus Manfredi Archite'ts and the rest of the proje?t team are
permanent solutron that isn't required to be done until the Building is working toward the Spring,2A24 canstruDtion season."
completed.
January 2E, 2O?4 - l-yme and AHA Engineers communicate with City of
August 1Z 2023 - 0n
site meetrnq with DPW. Audio recording in keeping with Leban0n DPW about updated water flow data.
City Manager's new policy that ail communications with Lyme Properties are
to be recorded. January 29, e0e4 - Teleconference with Elkus Mandredi to update and
f inalize Building lnteriors.
August 21, e0e3 - Meeting with Engellterth Constructaon. decide it is
procedurally unlikely project can re commence on time given pipe issue. and February 1, 2gZ4-Tavel to Massachusetts to meet wjth prospective tenant.
would incur additional cost of Winter Conditions
February 1, 2024 - Lebanon Planninq Department sends Expiration and
September 12,2023 - In parallel matter. Planning Staff reaffirms that Invalidation Memo, outllnes options to appeal. and directs Lyme to dircct anV
unpermitted site improvements'are in violation of the River Park Site Plan questions to the city Attornev.
River ParklLyme put at liability risk. closinq site to public access.
February 29,2tr?4 - XYULVT1 f iles Appea .

September ?E,2OZg - Round llill Fence Co. adjusts Rrver Park construction
fence to secure the project site. and to enable Phase'l Infrastructure [Route April 1,2024 - Building Code Board of Appeals Hearing on t3CBA?O24-A1
l0 entrance road, Municipal Stormwater soiulion. etc.) to be completed.
7
CRO66\
EXHIBIT 4
cr'trl'$r LtiIlANot\, t}T]TLDINC C'OT}E $OARD (}F API}ITAI,fi
DOCKTiT #: IICBA2{lm-n(l I

tYilfE FROPIII{?T$S- AGI4NT I?T}R XYZ I}AITTY, tLC

In lte! Appeal af Admir-li*trntivc llerision of Buileling [nsgrcctnr
lliver Prrrtrr
Wc.st t,cb$nuft, Nmv I'I;rrlpchire ' l4ltl I "iii;:
$TATElv{llNT (lF rAqTfl Aill} L/t!V

This Stat*ntent of Focts anrl Larv is subrniitcd on t.lchalf ol'Lynre Properties, devetoprnerrt
agerrt fbr X}'Z ilaiq,, I.l-,(l {tngelher, the "Appellartt), the own€r of Tax M*p 4"1, f,ot ?l at River
P*rk in West Leba*an, New Hanrpshirc {the "Froper[y"], irr scnncction q'ith i{s appea) of'an
adminis{r'atiye decisiun ot-the Letrauon Building Insp*ctor:{thc "rlppeal"}.

All testirrronyn staLlnrcnts, represun{alions* evidcnce" plans, reports, studies, axl'lihits and
othw infornration submi{tcd or to be sutruritted by *r on heh$lf'of *he Applicant in connecti*rr with
the Applieation at ol pdor to the pr,lt.rlic hcui:ing cu lh{; Applicirtion arc incorporated by relbrence
hereto,

.l'hc
Appllcfltrl rcquests th*i 1he llrrilcling Code lloard of Appeals {tlre *'Bonrrl"} *pprove
this $tatetrcnt of lt'acts arrd Law as ths sgeoifi* lindings rcquired pur.ruant ter RSA 67St3,l^

A. Faetu*i lk*kground,

1. By Buikling Ferrnit rh{crJ Dc{rer*bcr 31, ?019 {Pcrmit #2016-0A293; tbe "f3uilding
Pet"lnil"), lhe Appelloltt wits authoriz.ed lo oo:nrnsnse construclifin fin a nrixecl rrged cnnrrnercial
building on the llroperly, which is tat I in th'e River F:rrk .tubdivision,

2, l-lre lluilding Ferntit co{rtain*d tive (5} rclatively standard co*ditions of approval-
to be sat,isfied at varinils poinfs during thc cCIn$irucfion prac*ss, with no cxpressly stated expir:*tion
date,

3, llue t* the Covid-rel*terl public health rrffergensy, thc doartline t$ oonlnl$ncc

*(lnslrustion undcr thc Buifuling Fcnnit was extended to ]anu*ry 13,2{}23.

4. On cr hel'ore Nr:vember 29,2(,22, the Appellurrt's contr:lctor stilked thc fbrurclntion

r:l'the propeised buiiding orr lhe Prnpe.rty ir: acc,:ldarrce witk the appr*veri site plan anrl begun
lnitial exoavalian wittrin fhc building focrtprint.

5. In the course cf thc initial excavalion w,ark. the contractor encouilleleei lJrc City's
stonr:watcr linc fi'um Rou{e l0 to the ravine. on tire ltivsr park .qite.

CROl 5
$itatument of I''ncts and l,aw
Fage 3 i{fin I f{};:4

6, "l'hc City's stonntt'ater linc apparently

was originally conslructccl to manag*
storntw*{er from lvlain fi{rcellRuute l0- Aesording to plarrs prt:vided hy the City to thc Appcllolrt,
it hns additi*nally itcrcnunodatcd slormrvater rur:{}ff li'orn at lenst ane prirrals developnrorrt {tlre
Fnlls) on th* caslcrly side of Main Stroef/Routc I0,

*l'hc
7. dcp{h nlthe pipe is in diteet corrfliet witir the louncl*tior: excavatiorr and c&irn{)t
he abatrdoned in pl*cel trrest qr:nstfuclion tr:rmtctices is ta removc the pipu anel aucr:nunodntu the
stsrffivdntsr lunolT frurn thu puhlic strect antl nther pr:operties thr:ough sorrre othel- lreflns of
st0nnwaisr ntanitgent*nt.

8. l'hc cnntlict with tho pipe* nss{toia{ed crsts, ancl questions regarcling responsibility
of lllaintslliltloe, wer$ brouglrl to the Cityos attcnti*n in lte$r #30 af thc Appellant's March ?5,
20?2 conrprehensivc. nreurorandum *'A Franework lror Public frivnte llartnerslrip At River Park,n'
wlrich was $ubmittsd to lhq tlity in an effbrt to acldress past challenges nnd propose c coliaborative,
cCIstlsavilg path fol'wards.

9. A subs*cluent meeiing betrvcsn the Appellant an<l the City's l)cparhxenl of Puhlic
Warks eonfinmcd the assurnption tlrat lhs prcji:ct had been over-cngineered but neverdre[ess the
A,ppellant rvould bear iirll responsibility f.or arry re-engineering and cost-saying ellbrls to address
{he nrunicipal stomlrriitel' Iirre"

10. Since tlre initieil exeavqtion w{irk, the ,A,ppellant has been working diligontly witlr
the Cily's *:nginr:ering ancl pl*nrting staff lo eicvelnp a plm tei prnperly fefil$ve and tlispcse ol'the
plpe, nranage the City's stounwater, and fbirly eltroc*te the cost of th{)se efforrs, To dule, all
a*sociated costs have bcon bome by the Appellarrt,

11. At the salne time' the Appellant and the City have bscri eng*ged in contnrunisalions
r:egurdirtg the status of ths Suil<ting Perruit,

I2. By inttcr datcd December 9,2022,ths Appellant lbrmally notificd tho Cily +f tlrs
e$ffiffieneement of conutrsetion under tho Building Pemrit.

I3. Other than curscry ackneiwtedgenlents of the A;rpcllant's Deccrnber 9 letter', the
City rlicl not respond substanlively with reganl ter the l]uilding Permit untii February 15. ?CIZ] (i,e.,
6li clays later), at which tirne the lluilding Inspeetor request*d nciditional intbrmntion'tip ordcf tc
rreke a detenltin*tifirl rls fu rvhether wsrk has canunenced ftrr purposes ol clem*rrstratirrg
cottplianee witlr $eetit'rrr lt)5.5 *l'ths il}C firrterr:*tion*l Buikling Codcl {which provides that,
'[efvery permit issu*sl shatrl become invalid unlrss the wor'k txr the site arrtlurrired by strch permit
i* commenccd withirr 180 day* aiter its issuarrce[,]"'

14. l"lte lluikiing Inspector:os Fcbruary 15 nrttice rysnton to: (a) list ninc (9) sper*ific
'?xnntples" of the infbrrnation hc rc<1uired, nonc of wlrich are set forth in lluilding Porn:il *r
oth*rrvise in tny appli*rble lnw, rule or rr:grrlatiou (ti) threate* to "revoke the permit as cll.lanuary
13, 2*23" if such rrdditional i*far:nr*li*u was n('l prcvieled; and (+) s(i{ Ibrth tbur spccilic $clians

CROl 6
$faterncnt <>l'Faets *nd tr aw
Ir'*ge 3

that. if the l3uildiflg P*rtrit lvas not rsvoked, the App*llant would need to t*k,* "prior Xo the
tcsunrption oln ccnslmetion activitics," rr{)n$ of rvhich arc corxlitions clf tl'rc t}uilding tr}*rnrit r:r
otllerwise rerluited by arry zrpplic*ble larv, rule nr rcgulation and lwo nl lvhicli thnt fnll enlirely
nutsiele o{'1hs butleling inspection and perrrit Frccess.

I5, By letterdated Mnrch 7,7023,|hc Appell*nt prr.rvidcel adclitionul intbrmation tqr the
lluilding Inspector and askr:d hinr to provide the Appeltant witl:r the City's stanslanls and po[icle.:
with r"r:spect to the oontnlencerl:ent cf con$truelion rmcler n buiidilrg permit arrd wh*t speeific
iufb:'mati*lr is requirud try lhe IBC and uther applicalrle l*w r.vith respcct 1o the silrnc,

16, Following subse.quent discussions bctween {hr Appellant *nc{ City stnlf r:n March
16, 2()33 and aciditional infolrnation supplied by the Appellant at tho City's !'cquest {in thc t'onrr of
inr.oiees fbr pruject rr,aterials and cover Jetler dated hrlarch 24,2023|,the Builciing lnspector agrcetl
that the Appellont's work constituted cornilrcncemenl of work pursrnnt ts ihc l3uilding Perrnit as
$l Nnvenrher 29, 2$22. At llre same time, hcrwever, tirc Building Inspector set fbrlh snveral
"additional $teps'* {}rat need t* he co*rpleted "lc rn*intsirr activnti*rr ofthc lruiltlirrg ;:ennit withuut
jeop*rdieing the 18()-dery all*wanee ]io:l Novernber 29,2023 [sicl,"

1?. The li:rt of adcJi{iurlal *tcps in the liuiltling Inspcctor's A,larch 24 lettcr was
silbstantially {ltc samr: us thc Iist provided in his Fchruary l5 notice* with an adclitional rcquirernent
rvith respect tc thc soluiion fi:r thrl City's drainnge issue"

I 8. I"he Huilding lnspectnr's Mareh 24 letter ccntained no rclbrcncs to the l:aris for the
requirenient for'*additionat steps" in either thc Bnitding Fe:nnit, (he IBC or'flny other appllcable
law, rule or rcgulaticn ar pr*vi*ie nny specilic cleadline li:r'thc eomplclian ol'su{rli *deliti*nal steps,

I q.
By email dated April l fi, 2023, the Appellnnt sought a response llcr* lhe Building
hspeclor tbt clarity ns to the qlaie of thc connnencement of' work firr purposes ol'the lluilding
Pernrit and again for spccilieatian as to the legal basis for the Brriidlng lnspectar:s requesl ftrr
additional stcps as ccndilion *l'nraintain tho pemrit's "astivation."

2*. Without such infrrnnaticn fhrnr thc fluilding hrspcctor, continualiun of thc
constrttetion work under tlrc Buiiding Fennit is practically and ecanamically unfeasible, as it
rvould entail s*bst;rnlial investment of resources and effults rvithout a$!iur?u1r:e$ tlrat the Builrtring
Pgmit '"vill nat he revokctl,

21, Ilavirrg receir,'ed r1o respon$e fiom Building ln,spector, thu Appcllant filed this
*ppenl ol.s* ad*irri*trative de,;ision by tlre Buikling Insl:ectar an April ?.5"2A23.

$, Appticnble L*w snd l,agcl S'indings.

22. Buikling perrnit* in Lebrtn*n are required under the L,ebanorr Code of Ordirunees
(tl'ln "[,Cl{}"}, Chapier 3S. tlui}rting Construction, $36-2.A.

CRO17
$tatunwnt of lr$cts ar:el Larv
llngc 4 |'li'il | r:'r'i'i

23, N* part cf thc Chaptcr 36 nf thc l,CO, or ;lrly other pl:ovision of thc City's
orrlinattces, rulcs nr rcgulalions, set lcrrllt spe*ilic requirelnents g*terning the eonrnr{}ncunrelrf or
ecrntinuati*n i:{'work u{rder $ building pcrrnit"

?4. Se$tit;n 36-?.A ol'the LflO inc*rpor*tes by re tbrenc$ thc ilerluircnrents olthe litate
Suilding Code as rlefincd i* lttiA [55-4.

25. "l'he litale lluilelirrg Coctc adopts by rofhrr:nce the lirterrrutior.ral i}uitding Code ot'
Zil1S (fhe'*lBLl")" RSA 135-A:1, IV; RSA 155.A:?,1.

?6, $ecti*n t*5,5 of the ItrlC prnvie{es in ftrll:

"Evsry pcrrnit issucri shall Lrecorne invalid rrnless tlre rvork on thu sit* *ulhor:ired
by such pcnr:il is comtnencecl within tr80 deys atlsr i{s i$suancco or if thc wolk
allthorized on the sitc hy suc.lt purrnit is suspended or ubandonetl li:r a period of 180
days aftcrr fhc timc thc. tvork is commenced, l'l:e building oflieial is *uthorir*cl to
graut. in wliting, orlc or morc sxtensions of tirne, lbr periods rlot il1orc than 180
days eacir. T'he extcnsic'n shall be requesterl in writirrg and .iustifiuble causc
dgmrlwtr&ted.n'

27, No part of th(: Stato Fuildhrg Cotie or ths lBC sst forth specitic rcquirements
govcrning the commcncerncrrt or conlinuaticn of work under a building permit.

?8" In the nbsenee af spe*ific provisions in tirc LCi}, the State lluilding Code , the IBC,
and trty ufher applieable lrtw. orilinance, coden nrlc or regulutions, the Building Inspcctor's
requestr for the Appellant t* provlde aclditionaf inl'onnation sr lflks ad<litional slsp$ not set lbrth
in the ltuilding Fermit itsell in order to *rcinlain tlre Building Permit in cflbct is arbttrary,
capririir":u*, urrcasonublc antl unlawfutr, I

29. Hrrving i;omnlcnccd sCIns{rusti$fl uncl$r the Suilcling Purr*it in a tirnety lkshion
plior ta its expiraticrn under $ectiein 105.5 of the IDC" arrd having conlinuqreiccnsiluofion-rclated
activiry conlinuormly, rliligently and in good faith sincu thilt time (inctudlng working with the City
tr: resulve csrnditions in the ficirl, i.s., tlie etfesl of the municipal stofi*rvatcr inliasti:uciure on the
site, and Lrringing this Appeali. under Sectioil 105.5 ol the lllc, the trlnilrting Pern:lit slral! remain
in elfe*t li'ont thc tlatc hereof unless and until the rvork authorized b1, thc l3uilding Pornrit is
sr*pcttdr:d ur: nb*ndoned for: a p*riad of 1 80 rlays. CJ City ol'K*!isn*[tr v,.$gl.rnfli:r", 700 P,zil 1CI00
{Mant. 1985}.2

l Tirrr Builditrg lnspeciar's rcqu6st$ effactivcty uonstit$tc th€ retronctivr ittlrosition rf conditinns on tire. issuancc ol
thc Brtil<lirrg Ferrnit nal nutiiorizerl by upplicuble lltl,
: In the atrserlcc *lspccitic languagc in {he IBC regardlng rvhat constilt{es aba*dtrnnrcnt of n lruilding pcrrnit,
abantlorimenl rcqrrires Lrolh an itlention to ilt:irnc{qrr or relinquitlt lhe perntit atrd au 0verl aqt (,1' fiiilure ts act rvhiclt
cnn'ics thc i*rplication thnt the hslder of the purrnit ncit'hcr shi*rs uor relains nny iulcrcst irr llre gcmrit. ,Sas Lg1glg
g-[nr-r_ggf.Salru, Ilfr N,l-1.61,62 (t1]?6];Pike lntlustries v, Woodu';ld, 160 N"H, 25?"?.61G0l0l.

cRo1 8
Slaternant of Facts and Law
Fnge $
MAB.ITS?;d ,

Thc Applie*nt res(tr,ves the right [o arncnd, modis and supplement this $t*i$mqnt af Fnste
*nd Law.

Rcspectfi rt ly rubrn itted,

rn bshslf ofNYZD*iry- f.LC
By Ctevel*nd, Waters and Bars, F.A.

SfiEi June X,2S?3 t

Two Capital Pltuq 5trt P[661

P.*, $ox tl37
Coneord, $ff $3S2-t l3?
Telephone : (6{13}224 -7 7 6 \
S.mall : hardngap@cwbpf, .ssrfl

486&9:6q41i8. s. 2

CRO19
EXHIBIT 5
NRiver
- 1
Park
Wtst Lr.ltarrrrtr. Nl I

IJecember 8"2{}22

Devid Braoks
Deputy City Marrager
City of l-el:anon
51 f\ Par{< Street
Lebanon, NH ffi76e

Rer Commencement of 1t001 Rivar Pcrk Driva (Bullding Permit #2016'00293), c*nflict with Citt's
existing munlcipal gtormwater ilne

Mr. Brocks,

This rrern.: [s te provide o:fflcial nertic* to the City af Lebanorr that,\YZ Sairy, LLC s$rnrilerrced
corts*.u,:tion *n '! River Park Drive in accordar:ce with Cily of Lebanon Bullding Permit {t2016-
m293, and that rrue have encoirntered a conf$ict with existing City of Lebanon infr-astructure that has
suspendod constrrlction Lintil a solution can be reaehed,

lnitiel er.cavaticn within thc buifding footprint began cn Tu*sday, Ncvember 2q,2A22 by Nrtt'r
Excavating who retr:rned tc ttie site following tlre delayed conclusion of the Cross Countly
Conncctor wr:rk tlrar was performcci in Ar"rgrtsl, 2022 but rrol dr-'err;eC substantially colnpfc'te until
0qtober 25,2022.

Lel:anorr huilcl lnspcctor Calvin ]-lunnev.,ell's May 21,2Q22 rxew* outlinm th* status ai Srrilding
Per*it #2016-00??3.

Fxcavation wcrk ntr 1 Rivcr Park was slcppecl upon encslrntering lhe City's storr"rrvraq,er line ru;rninq
fr*m Rr:ute t0 ro tlr* ravine r:t'r the River P*rk property" Wc,rl< lras nnvr ceaserJ accorelingly, unlil
there is a solution for this municipal utility obstnrcting the f+undaticn of 1 l?iver: Park lJrive. As XYZ
Dain;, l-LC dnes nclx ovrn or conttol the pipo clr"r our propertf, we c6Brr,l addres* it witlinul'City
appr.:val,

I reported the uncovering of the pip* to Brian Vincent, City Engincer on Novembcr 2q,2*22
follcrvring tf:er re;'rctt1 frorn lrJatt's. Srinn and l spokc orr Nnvcmlrc r 30, ?-A22 and agreed thaq he
eamplele a file revievr to determine what, if any, infbrmaticn the City had availsble,

On Decernl:er 2,?872.1 received a lnltow-up ccrnnrunication {rom Bdalr ah:ng with a PDF clf a '!99?
Eruno Assscia!.es lnc, P.C. plan slrowing the existing stormwater iine as part o{ a pernrit set for
"frnject 98221 Maple Street." I subseguently requested adciitional infornralion about that project,
and Sheer $-3 which was re{erenccd in th* ccnstruction nercs as containing "off-site drain & ${lwer
prafile" in{c.rmtatinn wlrich was provided on December 5, 20?2. Erian ancl i are working to scheduln:
a {ield visit next week, attd a conversation to fotlow betrveen the City and XYZ will be required t<:
cieterriine potentiat solutisns and * path f*rwards.

hY? *riry LLC. ftevrylopcd by Ly*rc l'rapr{irs, .57 Mairr Slrae';, W*sf l,rhario*, Nt | 0371}4
Fhorrl: f.O3 dl'6.,f800 rFcx; nt3-676.7*r0 .
[ixail: irrfo/3]ri'rcrrr;rrl*vi.:..lk:lrtnr)n"rorrr

CR124
q Kiver Park We*l Lebanon, Nl"{

The line in qu*stion is shown on the existing concition plen only *s fin " 1S" cast iron pipe," hlott's
rcpofis that the pipe they uncoveled may in fact be elay, Either way, the depth of the plpe it in
c{irect canflict vrith the foundation Btcavation artd ttrus can$ot be abandoned in place, Also, given
tlre ccndition of the plpe and the aiiditionalfuture infrsstructufe th*t will be ingtalled atop its
eurrent route, ttle hslieve that the best practice is tc rernove the deteriorating pipe so as to avoid
ft*.ure sinl+hcles, etc, Thatexcavation w,ork and disposnl represents another additicnal
development cost ts XYZ Dairy, LLC to addre*s a rnuriliipal issue.

The issues a*rd costs associated with this pip& were outlined in lt6tt1 #30 of the March 25,2A22 "A,
fremework For Public-Private Partnership' prepared by l-yme Frope*ies for" City Ma*ager Shaurr
Mulhslland.

Sincerely"

Q**rl^
Chet Clem
Lyma Prcpertles
57 Maln Strpet
Wcst Lebar:on, NFI 03784

Cc:

Brian \'incent,.Crty o,{ Lebanon

Calvin Hunnewell, City of Lebanon
David Clem, KYf Da!ry, {-LC

lffZ s;lry l-Lf , D*vofop*d by Lynr* Frnpenles.'}'y' lvlai* Streeri, riJest |,ebaoon, Nl'i 03 1M
Plrrrne: 603.{:76.78ffi r Fau:4fi.6?6-7810 . frn$il: intr:&dverpa*weslfe}rrnsn.c*m
CR125
EXHIBIT 6
 Froml Borld Brcokr Dgvld.Era6ks@l€banonnh.g(rv t*ii;,llrl:ir
Sulr,locfi RE: [EXT€nNAL! Comrnaacement ol 1{00} Slvor pa* Srlve {Bufiriirrg Fanrrif ti20t6.002s3], conltlct wlth Clty's exisring fliii:t:,
nunichs; slormwalar llnB
balc: Fobruary ?, t0?3 *t 12:tt pM
1o: Ohot Clsm chel@lymgproflprliee,coftl. navid Cltrm dcl*[email protected], Angola Mdlnnna
sm6a6nnselynrofl lopedles.oorn
Cf: BriAn Vincsnl [email protected], Calvln Hunnsnell Calvin,llunnawelr6rlabanonnh.gov, Nalhan Fleicherl
tlalhan'Hdiehorlelebanonnh.gov, Tlm L'on'rln Tirrl,cofi#ln@lobanonnh,gov, illl< coaioa [email protected], .lay Caireltl
Jay,Calrol(@lobanonnh.goq f{od Flnhy rod,[email protected]

Chet

My apologies l*r the delay in responding to yoilr latter of Decemb e( g, aozz,

I am aware that Sity Engineers Brian Vincent and F{od Finley rnet yori at the site on
December 1Sth to review the current situation wlth the existlng storm drain pipe- lt
is unclerslosd that the existing drain pipe is in conflict with the proposed buiiding
and that Options discussed on Decemb€r '!Fth included: 1) relac*tin-q the existiruy
line, at leasl tetnpolariiy, cr 2j dela_ying t:r.rilelirrg canstrucii*n riclil afGr th* frte ute t 0
int*rs;ectign wcrl< is cnmpleterj, which, as allpt'tv*c|,,*iill irrulurJe lrrsiatllaiiclr: uf n*rw
dmitrilgl* irnptt:varnenls ther:b1r ntaking th* oxistirrg cilainage ;:ipe cbs*lt*io^

As an alternative, I understand that you discu$sed with the city Engineers on

Decetnber 15lh relocatlng the dralnage pipe along the southerly side of Lots t anc!
2 to reach tlle ravine. You previuusiy pr.ovlded the Clty with fi copy of an August 4,
2o2o cover letter request from TF Maran to NHDES for a "prapossd arnsndment
extonsion to AoT;0994", whlch reletencsd tlre change af relocating the city-cwned
dischatge of an existing 't8" $tormwaler cufvert on the property in order to construct
the foundation of 1OCI tiver Park ilrlve on Lot 1. I believe TF Moran prepared a
layout of the changecl location, but I don'f know il any revised drainage calculations
were pr€pared or provided to NHDES" The subsequent AoT perrnit amendment
{AoT-0994A} issued by NHDES an October 30, 2020 does not appear ta expllcltly
relerence or approve the proposed relocationl but does referonce lhe recent
request of August 4th, and is presurned to include frnd insorporate tlre changecl
r{rain pipe aligrrn'lent, u*hir:lr irr arry event ha* heen inslalled, but is not yet
conn€*t*c{ to thc eatclr basirr irr Raute 1il.

Thc City ha* trer issues with the uge cf lhe alternativs clr*inage pip* erlignnre nt ern a
tsmForafy basis, or perhaps *vail on a permanent baais, as long as the alternative
alignnrent anrl design is approved by NH*Es. The CIg would like a nomplote eopy
of the AOT atnendment requost, including any lnforrnatlon that hasn't previously
been provided. ln addition, the City would need docur,rentation that the alternaiive
drairrage pipe was properly sized and installed to handle only the axlsting
stormwater flows cureRtly handlod by the exiating pipe. The City wauld alsa require
additional details and an as-buitt plan of the Installed drain pipe,"including
confirrnation that lhe are no conflicts wlth the recently-installed cross-cofntry water
and sewer mains extending frorn Crafts Avenue Extension ir:lo the cornrnercial
porlian of the.s[te" {The sketch plan prepared by TF Moran, which was presumably
included with lhe 814ft:A request ts NHDE$, appears to depict potential conflicts
with waler andlor $ewor mains in the southoast cCItrner of Lot 2, Uut any sLrclr
L^.,^ l*or*jx *a*rl, r*;f +!ra .fi-irt l*a{r.lln{i**
^..ntll€r$. ^^r.l'{ -{rrrin;, ^I }L^

CR 187
uulllllrjlt' uuutu irijtvu uuult ttJuulvluu til ilts iletu urjHug lf tiittlftitilut I uI ulu utuJS-
country waler and sewer mains)" Finalty, the City r,vould roquira a convsyance of the
alternative dralnage pipe and an easement for aceess, maintenancsl repa*r,
replacement, etc. Such ease*renls ncrmally extenci 15 feet on sach side of the
centerllne of the pipe, and depending on the finaf installed localion, could lnclude
parts o{ Lot 24, which has since beerr cctiveyed to Lauren Curnmlngs. An as-bullt
plan of the installed pipe woulrl conlirrn whether Mr. Cummings needs to grant an
easernent lor the alter*ative drainage pipe.

With the above inforrnation, the City would then be prepared to lssue an excavation
permit {if necessary and upon application}for work within the tity's right-o{-way to
dlsconnect the existing dralnage pipe from the Route '10 catch basin and lo connect
the new drainago pipe. F*f towinE disconnection of the existing pipe from the catcl'l
[:asin, the remainder of the exisling dralnage pipe may be abandoned and rernoved
to allow for construction of the lruifcling on Lot 1.

With respect to lhe commenc€ment of ths constructlon on l-ot 1- I understand that

lhe Planning Deparlment will be reaching out separately to request additionaX
informatiorr that could suppart a deternrination on that issue,

David
Devid R, Brspks
Deputy Cily Managar *. Adrn;inlslratlva Saryicss
Oity rri Lobanon
(6031-448"4230 {0lf lce}
{603} 442-6134 {Dkecl)
Da id,&r-sshcg !c b'arcnlg l. gnv

Fron'r: ilavid Broaks

$ent; Monday, Decernber t2* 2O22 2:87 PM
Ts : Chel Clem <cllet @lynrepropertles.com>
Cc: Brian Vincent <hrian.vincent(E lebanonnh,gov> I Calvi n HErnnewell
<[email protected]>; David Clem <[email protected]>;
An gola l,/cCanna <amccan n a @ lymeproperlies.com>
$ubjeet: ffE: {EXTEFNAL} Cornrnencement of 1tCIO} Biver Par[< Drive (Suilding Fermit
#201 6-00293), conflict wlth Clty's existing municlpal stormwatet' line

Cl^ret

I'm acknorrrledging receipt of your fstter from last weei<. Iwillfollow up with Brian on
the latesl inspections and discussions"

David
n^'.i.1 ll bpanizn

CR 188
 Lravrg-n, stuunr
Daputy Cily Managar- Adntnlslrative $ervlaas
Olly ot Lebanon
{B0a)-44S4220 {Otfice)
(603) 442-6134 (Oirocr)
Da vicl,Ersslsg.tgbsts! N Lltl sv

Cc: Brien Vincent Caluln Hunnewell

Dav(d rri <del$m"@ly"meruapedic$*ssl!>;
Angela Mc0anna
$ubjact: IHXTEfiNAL] Ccmmeniement of 1(00] fiiver Fark Drive
{Huildlng Fsrmit
/f201 6-00293), conf fict with Cily's existlng municipal
stot"mwater llne

IEXTER'NAL EflflAlLtr po t{or cL}sK ttnk* aratrachments unress you re*ognizeths

senderxnd know flre eontent ls safe.

lvln Brosks et alr

Ptease lind the attached.me.Tq regat'ding ths statu$ of 1 Fllver park

Drlve construstion
and a conflict with rnunlclpa,l in{re$tructuri.

Slnceretry,

Chot Olsm
Presldent
Lyme Fropertios

chet @lytgsrugeerlies qo$

i603) 874-r106 (dtrecl)
(207) 57$-141 0 (rnobilo)

$alcsr[vi.sss[e-eaar1-silE-0c

cR 189
EXHIBIT 7
Fa*uSlgn Itr: sS6?9025-1 57c-d934 -A33i*cdtrCEE?CCEB I

Crrv or LEBANoN * Frsr*rurNG & DEvElopMENT

February 15,2023

$enf Vi,a tr-Mati| {ahe@lyrne propedres. cornJ

Chet Clem
Lyme Fropeftfes
57 Main Stroet
West Lebanon, NH S3784

Dear Mr" Clem,

f'rrr following up from my letter dated May 27, ?A22, regarding your reque$t for an extensiorr of
Huilcllng Fermit #2016-002$3 issued for 1 River Fark Drlve {farmerly 100 River Park Drive},
origlnally issued ott December 31,2019. As nr:ted irr rny tetter', tllis of{ice founqi that the COVID-
19 pandemic represented aclequate juslification to grant your requesf anri, therefare, I ap:prov*d
an extensfon of tlre Bui{ding Per*it untilJanupry 13, 2$23,

On Eecernber g, ?022, f receivecJ a 6opy of your letter to neputy City Manager David Srooks
pt'oviding "of{i$iaN notice tu lhe City of Lebanon that XYZ Dalry, LLC cornmenced construction on
1 River Park Drive ln accordance with City of Lelranon Bullcling Permil #2016-00293."

Please be advised that I will need additionaf infornration in order tc l'nake a determination as to
vlhether wolk has cornmenced for purposes af der'lrcnstrating compliance with Sectlon 'i05.5 of
the IEC twhich provieles lhal, "[e]very permit issur]d shalf becnme invalicl unless the w*rk on lhe
sile autirorized by such permit is commenccd within 180 days after its issuancc[.j"] The only
inform*tion provideel in your letter re lative to llrs comnrencement sf wo* is thal "fi]nitlal excavation
vrilhin llre building footprint began on Tuesday, November 29,2fr22.'

ln order to make a deternnination wilh reepect to Section 105.5, please provlde us with more
information as to tvhat work was completeel arrd what ather $teps were takeil to effectuate the
Builcling Perrnit and to cornmence construction ln good faith and in earnest. For example;

1. tlate that building footprinl was staked *nd surveyor confirmation.

2" Corrfirmation tlrat the staterrent of special inspeotions is apprcved by a registererl de*igln
professional and the inspection agency has verificalion of notice to proceed"
3. Confirmation that the registered design professicnatr$ were and are in your hire as of
Novernber 29,2022" and are ready to proceed.
4. Redacted coples of contracl. agreernents with description of the pr:oJect, the scope of work,
and cotislruction echedufe.
5. Canstrr:ctian schedule including the prcject's intended cornpletion date, and start and
finish tinnes for each phase of the pmject.
S. Scope of wark includirrg which cantractors and subcontraclors are resporrsible for eacl'l
campeinont of work.
7, De,tailed cost estirnales,
B. Arlclitional informatiotr as lc lhe nature End oxtent of the work perfr:rmed"
S. Verificatisn of notice to proceed.

51 NORTI{ PARK STREET, LEBANON, NEW HAMPSI.IIRE 03766

TEL: 603-4,48.1457 FAX:603-442-&141 LEBANONNH.cOV
CR126
ilncil8lgn Enwkrpo lDl 1166?80?5-"1 S?C-"tS34-A330"C4OCEE?CCEB?

Please pffivide all pertinent dccuments sa that I can rnske a detennination and, if adverse to your
position, sstabllsh a date hy whieh the determindtlon c6n bo appealed.

Without arldltlonal lnformatlan nnd v€rlfJcatfon that you heve a<Sively prosecuted the permit, I
cannot justify the continuance of tne Building Pernril and will revoke the perrnit as of January 13,
2023.

lf I arn able to confirm tfiat lhe Building Ferrnit has Rot exp,red, please be awar,e that there are
seyeral other steps that need to be cornpleted prlor ts the resumption af constructian activitie*
{ancI whlch shsuld have beerr completed prlor to the cornrnencernsnt of any construction}, These
include:

a Providing a edsl estfma,te of remaining Phaso 1 Infrastruelure improvements for revlaw by

the City Engineer, and provlding securlty fsr such anrl sntering into a nelv s€surity
agreement,

I Fraviding a oon$trlls{ion schedulo tc the City Enginser fcr purposes of rstaining a third-
pady inspecior, providing payment of estimated lhird pa(y review co$t$, snd ent€rifig into
a third pany lnspeetlon and water & sower extonsion agroement.

. lngtalling edge-otdisturbance fencing on site to l:e revlewed by the Ciiy Engioeer.

r Sonfirming lhal all state permtls have been obtained or have been updated, as needed,

lf you have any queslions, I cai"l be reached at (603) 448-1524 or by e-n'rail at ca,lviq'l,hu[nejzuell
ffilpFAngnnb"gov,

Sincerety,

0al^.it" fu'A^tJNdL uul/lgzs

n , Bullding lnspee*ar

cc: Nathan Reichott, Dlrector of Flanning & Development

ilirectorof Ftanning & Development
Tin'r Conroin, Deputy

CR127
EXHIBIT 8
qRivg.gff,,*rh'
Marclr 7,2023

Calvin f-iunnewell
Bullding lnspector
City o{ l-ehanon
51 N. Park ttreet
Lebanon, Nf-l03766

Re: Commencement of Bulldlng Pennlt #2016-00293

Mr. Hunnavr*li,

The firsr step in the cotrtruetiorr c{ 1 River Fark is addressing lire City's slorrnwater line dtat is irr
conflict with rhe buikling's foundation. ?he pipe services Routd 10 {Nl-IDOT and Urban Compaet}
ancJ Tfic Fblls development acrcss the strect and nrns diagonally thr,ougl'r Lot 1 ot River" Fark and tl're
ioptprint at the building bef<rre c,lrairring into thc ravine on the River Paik prcrperty,

After repeat delays encorintsrecl during 2022,we comrnencec* excavation of the I River Park
foundation in good faith arrd iil oar{rerst cn Novcrvrbc'r 29,2A22- Tirc {oundation had been staked
prior to commens*rrlant of work by Nott's Excavatiftg usinE their GPS system loaded with the
approved Rivar Padc plans. Nolt's hegan carelully excavating along the olst &id6 of the foundation
to rlaylight the g:ipe. 'Once tlre pipe w'rs lcc-ated wcrlc eeased to irvaid potentially *lainagirrg tlrc
existing, active line that was irritially repo*er{ to be clay.

As r.ny Decerrber I , 2422 merna atrilined I canrot proceecl eny {urther on thrr l River Fark
excavation until tlre con{liet is addiessed. and giverr that il- is ruLtnicipal in{ra*tructure that *olution
must ba coordirated with tha City of Lebanon. "Fho first rneeting with City o{f icials {rorn the
Oepartrnent of Fublic Wori<s wa$ on Decembar '[5, t022, and ilavid Brooks' February 2,z*Xt
firerno outtines potentinl solutic'n*, I have subs*quently been v'rod<ing witlr TF Mr:ran, cur engineer
af record, to devnlop potential so!*tions in response,

Ilave preividsd additiorral infornlatiort attaclrcd outlinirrg thc w:rlt tlrat has Lree* cione in gr:r*d faith
arrd in earnestto initiatc- fsr tha fourth tinre, follawing suspensiorrs in 2016, 2018, 2U20*
construction of I lliver Fer*,

lf you feel that the inFormi:tir:n pr:ovided lrer:eiir is insuf{icient t* nre*t the standard cf conrmnlncirtg
construction in good {aith and in earnest then I would ask that you provide me with rhe City's
definition of Conrmr:ncenlent of Con:trrction arrd clifect nre tr: the Clty's policy on what is requ!red
to meet that burden r:f proof. Yor-i provided nine exaftlpl,rs in 5,r1q11'Fel:ruary 1 l, 2023 menrrr, but l*cj
like tc kncw what is specificaily required by the IBC or the Lebanon code so that f can ensure
suf{icient inf*rmation is relayed.

Since initiatin$r er:cavation cn '? River Fark in Novea'lber, 2A22* ancl having heard no response for
over 60 days tc n:y Decemb er 9, ?-tJ22 rnemo to tlrat effe ct othe r tha n nry meeting rirrith City c{ficials

X?Zt3xiryi.ltl llqeql.t*;byl-ym*'i1r{tfr'3r'li*6.5}ldain$tro*1,$,iertt"+hanon.Nl"i il}}11"1

Pirone;6,o)3-i16"?B0i). i*s;6i13"676"?ill$ r li,niiril;irlotiriv'.rrpitgkvrsr.tlgl:anor.r.ccrn-r

rslrtr|..?.'.'r.-, rI L..r",.I i{'P!.d... CR128

qRivgg,H*rh
sn Deceml:er 15, 20*2,- [ have bee*r engagecl in the reiquirite {ohver$ations with prcj*ct partners
that rnust be restarted every tim* we stternpt to initiato wark orr any phese o{ River Park,

lf you elect to revcke the building pennit as of January 13r 2S23 per your February 1S, 2023 rnems,
I would ask that it be cJone promptly so that I do not continue to incur cost$ related to the
development o{ liiver Park,

Sincerely,

{fi,tt!*
Chet Clem
Lyrne Properties
57 lvlaln Street
West f-ebanon, NH 03784

XY,J l"l;iiry lH;" Lleveloped b1r Lyrrrre f'ropertiee, 5l Main Strerl"West l€hanotr; llrll-{ O.PB,I
Pfinn*:60&6?*-?B$il . F;w:603"ai76"7810 r Hnrnih in{o$rlverprrkwerll*banon,mrm

trUfitirsr* st/;i*HF&rl x?"&ale CR129

Nniver
- \
Park
l(c";l Lt'l;'rrterr, fdl I

Addittsnaf information regarding offarts to cammencs construction of t River Fart

Pricr to excavatipg the 1 fliver Park {oundation, XYZ Dairy completed the Cross Country Con*ec':tor
{CCC)tc bring municipal water atrd sewer service to 1 River Park iPhase 1). The CCC scope wa*
delayed by r-naterial s|ortages, delivery delays, and rnanpower issues, as r.tell as erngineering and
pennltting issues l:rnught tn li$ht by the City tlre week prior to conlmencefient o{ construction.
Thanks to the effr:rt cf the l-eb;rnr:n DFW ancJ TF ['lorar:, that issue v+as retnlved in time fnr worlc t$
rrontinuo"

f{owever, as a resr.tlt the CCC rrcrrk was not conipteted until August 2&,2A22, and was not sigrrecJ
off an by the City as substafitialiy cornplete until October 25,2O22. Afterthut trva-rnonth clelay,
{.'lolt's re-mobiliz.ed to retur'n to the site to begirr excavation on the 1 fiver Par[< foirndatlon v,'trren
they were next available.

ftofatedly, w€ are still awaiting aelivery n* *** .luctile pipe required by rhe City to connect 'l River
Park to thc Cross Corntry Connector. This pipe wes part ai a substantial mate:ial r*rder placed by
our cuntractor irr January , ?"822 fctr tlte atrticipatecl Srlrrrner. 20?2 constr'uctiurr *n bath Fha** 1
infrastrr:eture and 'l Rrver Fark, I have been inforrned by Nott's Excavating that it has arrrivcci at'the
Ferguson yard a* cf Fehruary, 2023, approximat*ly ? year after placing the order.

The f,laven:ber,2072 excavatrorr cs:nfirrned tlre depth arrd rnaterial of the stornrw.lter pipe in
quostiott, as the llmited inforrnaticn lare F]ad available to us has caused confusion ln the past*
inclucling when the pipe rvrs mistakenly blocked durlng previor.rs site work that lrarJ been approved
by the City Engineer at the time. The lrip* crosse* the fcundation at apFroxlnr*te ly wai*t-heiglrt
above {inished grade a{ the basement floor, creating a direct and unavoidable conilict, From rny
December, 2022 me mo: "giverr the cendition c{ the pipe anc{ the additional {uture infrastructure
th*t rryill be installecl ilklp i',$ cur'mnl rcule, iile bell*ue that tlre best practice is to r'e Hove the
deteriorating pi;:c sr: as to avaid {uture sinkJrq:les, clc, lhat excavation urork and disposal
roprcsents another additional developnrent cost to XYZ Dairy, LLC to address a mrrnicipal issue."

The unprccederrted risc in conilruetion costs ancJ the orrgairig clrallertgcrs af tlir: srrpp":ly clrnin *nr:J
labor rnarlcets resulttng from Covid-19, and ongeingl cssts and associated chalienges of ln{lation,
have a significarrt financial impract on River" P*rk. Tlris is on tr":p cf the eostly delays incurrsd wheu
construqtietl rrobilizatiuns in 20'16 anel 2018 {or 1 f,iver Park were suspended {or rsason* bey,:ncl
our control. t he price ercalations need to be offset with cost'savings rvhereve r possible.

As such, I have been in communir-:ation wlth City Marxrger Mlrlholland arrd Dep, Clty Man*ger
Brcoks since providing tl"rern wiih a {rame'rvork for public-private partnership in March, 2022 that
astlines cost-savlng, cooroination. and ccllaborative efforts that ccutd facilitate e conomic
develcpnlertt at River" P*rk arrd in West Lebanoir. That ciocument coalesces con't'ersations {rorrr
2Q2$^2A22 about hpw to r,'{ficierrtly ar{vanr:e rnr,rn[cipal inffirstructure *t Rivc"r Park.

?he sr:lr"rtian fnr the City's stormwater line is one olrvious area {or cost satrings. Tlre cost of the
eingirrcering ralution ap;:rrcrvecl in 20'l x lras ballooi:ed tn an nstirnated $900.00*+, anrl prcsentJy

XYI l,).lny LLt-. {}uysh);:*d by Lyrrr* Frup*rlies. 57 hl;rirr $tiui?t,'\4rett Lrl-riltr*rr, f'if t t]]lf].t
Flranct l:03-€7d-7Bf)0 c Fax: d'03-d,76"?{Jft llnr,:i[: irilo&lriverl-rar*wcrtlchanon.rnrl .l
"
Ird.il rr!.:?c{ lrr Ir 4j.4i ] rt{r: \ :iirfl1.itu CR130
 q River Par"k
Wesl Lebanorr. l\J! |

the upfrant cost and long-ierm maintenance of that solution falls entirely an the liiver Farlq projact,
As I have ccmmuniceted to tlte City, I believc there is a bctter way tc salve this problem for troth
prrtiax, nnd one thnt cioes nt:t unduly hlrrden River Park, Thnse value .r:nginr:*ring ef{*rts ar* [:*inll
aduarrced try TF Moran fn rogponse to tlre r:riterria sct fcrth by Mr, Eronks in hin Fel:rrrsry 2,2O23
re$p()nse.

A point of clar^ification in rcsp':nse to your' February '!5, 2S23 rne{ra: '' 1 River Park" and "Phasc' 'l
lnfrastr-icturei" are twe separale irnd distinct seopes nf weirk. Phase 1 in{rastrueture serves the e'ntirq
prajeet, whereas 1 Rjver Park is solely related to River Park Phase 1/Lot 1 and ccvered by Perrnit
#201 6-00293 itr gttestion, There is a distinction between the ternpr:rary redirecting oi the existent
conflictirrg fine done urds.r rneans and rnet]rods of thal 1 ltiver Farlc building pernrlt as is already
undetway, and tho perman€nt solutioir* which is now under revfev+ under Phase I in{rastrueture.
The installatinn n{ llre ternporary bypass line rcas done tc faeilitate construction on 1 River F*rk.

ln the past, we had irtended i.o do Fhase 1 lnfrastructure and 1 River Park simu{ianeousiy, How€ver,
in ';ir* course of past de lays on 1 liiver Pa*, XYZ Da iry, LLC cotnpleted three of {ivc $egnlenis of the
Phrse 1 in{rcsilucture. Crafts Averrue Sertrer arrd Roadway lmpl'cvenrents (CASRI, cr:mpkrteci 2018)
and Cratt* Atrerrue Fxtansir:n {CAE, corlrpleteej 2f}20} Lrrought municiPal !vat{:r *rud evuer to t},te
River Parl< development site, I he Cross Country Ccnnector (CCC, completed 2022i brought
rnr"rnicipal \oatef and $ew€r tc service '1 River Park. That was done ill goocl {aith and in eai'negt
towards initiating construction on 1 River lsarl<,

Per r:ur approval*, Phase 1 in{rastru*lure rnust be complete by tlre Cedi{icate o{ Oceupancy for: I
River P*rk, not ahead a{ construction. Similar ta the Craff* Avenu* Fxtensimr not neeqiing ta be
cctni,:lc;tt+ prir:r lo llre issuance nf building permiLs ft;r lrouses on thsse suhrJivisicn Lrts, ! beileve it's
lagicaI lor building ccnstructiott to conmence pricr to tlre final roadvyay wori<. Accorcjingly, I do rrot
believe a cost estimate, security agreertent, and thir,d-party inspecticn {or tlre Southern Entr*nce
and River Park Drive were requtred prior. to advancinE the tr River Park ceinstruction,

The Route 10 Southern Entrance tSFland River Psrk Frive SeEment 1 {RPO-I}are lhe trry<:
outstanding seEmonts c* Flraso 1 irrfrastructure. Tne *ccpe and titrting of those phases are a[s*
deperrcl*nt c,rr *r:lving thr: st<:mrw:ter line arici ongoirrg conversatiorrs with the City, F..:r exarrple, il
v?e can succe*sfully tre-Ferrte the r,rxisting stor-nrwater iirro wc can lirnit thc rlocessaty excavation and
disruption in Route 10- which lnras just repaved by the Ciry and State last year. Un{crtunately*
repeat efforts ta canrclirinte Route 10 work with the Nll"lflfJT and Leban+n Planning Dep;rralerrt
r{rere Llllsuctessfu[,

Additlonally, as outilned in I'ny May, 202? merno. it's nry hope that XYI trairy and the Clty can reach
iin agreement that rnould allol tlre entirety o{the Rivar Farl< Dr,ive/Lyman Street lc,op tn be
corrrpleted at once {of the sal<e of efficieneJr and nrore rrnportantly to facilitate the relac;tion of the
'liansittr-ansit irub
Advance frorn Kilton l-ibrary in keeping with Ciry plans since 2010 and the 2021
Memorandum o{ Understandlng to thal efiect betwe en XYZ Dairy and Aclvance Transit.

XYf Pniry Ll{ Dev*lo1;r:d by Lymo Fnpertins, 57 Main 5tf*1, Htfsl L*bnti.rn" l-i}l 03784
Ph,:r'e:603./.t'16-?800 r Fa,* *O3'6?6'?111fr r llnisii; inf<:€rivrsl-.ari:rerstlei:arr<rlr.,:ur:i

&3li!r 1.4;..-ri.!*rJ.tlq*rhr,li16r6ir d]5 CR131

EXHIBIT 9
 ClTr {lr, Lnnar'lCIN - Pr-q.xNrNc & Drvlil()r'r\niN'r'

Merclr 24,2023

Chet Clem
l.ynre Properties
57 Main Street
West Lebanon, Nil 03784

Thank Vou for.attending the mesting last Thursday March 16, 2023, to furthel diseuss your
comrnencernent of work at i River Park Orive in accordance wittr City of Lebanon Building Perrnit ,12016-
00293.

Topies direussed includedl

r Delet'rrrirratiort of Eorirdlefrce{rletlt of wor l(,

. Tlrnlng and continuance of worlr.
r ExistinB stormwater situatian.
t lnability to complete the excavation fsr the buffding.
r 'l
F Moran dc'sig:rin8 p<.rtential iolutirlrls,
r Meetings with proiect partners.
r Proiect r:xf:efi$et.
. fiEquesteddoeunncntatian.
As a result pf the meetlng ar,ld yaur foltow up e-mail scnt iatcr' the sarne day, we agroe that ycu trave
justified the preparation rvork ycru have heen preparing with Voirr cc,nstr{tctic,n partners constitutes
{omrnenf,qrnetlt of work at 1 Rlver Park l}rirtr: ir: accotrriance yuith fity of I'l}hanon {luilrling P*:rmit #?,n16
00293"

?he following additiona, steps need to be ceuxpleted in order to nraintain activatl0n of the building
pernrit without jeollardizing the 180-day allowance fran'l Ncvetnber 29,2023, whieh is the date you
begalt cotrstructi0t't i

) Storrnwater -dcsign:
{xDesign of the storrn water solution by TF M'lorarr subrnirtcd to thc City,
r.j
Provide ex;:eeted construction comn'lencement and coml:letion of the storru wcter
systam inck:dilrg de nrolition of the existing lripe in tlre footpriut of the building,

r {:rovide the follawing additional documents rnlating ts the cornmencenrent af construction:

l. Date tl'ret huildirrg footprint was staked, aft*r placement r:f concr*te provid* llcensed survelrors
cer{if icatia{i uf truitding plar:ement.

2. Canrpleted st;rteilent of special inspectlorts i* ag:proved liy a rcgisterecl clesigtr professronsl and tlre
ilspection agency has verification of nctiqe to proceed,

3. Conf lrnration that the reglstered rtesign prcfessionals are itr yout trire and are readlt to proceecl,

5{ NORTH PARK STfiEET, LEFANON, NEWI'IAMPSHIRE 03?96

603-448-1457 LcbatrcrrNH,gov CR132
4. R€dacted coples of ccntract agree.fients wlth dercrlpticn of the prrjec;, the *eope. cf work and
'canstructlo* rchedule.

S. Constrsction schedule including the projectk lntended contpletion date and s,tart and finish timesfar.
.eaeh phaseaf tlre Frejeet,
6, $cope of work ineludlng rnhich tsntrtct$rs and r$bcontractors are responsihte for each component of
'work,

7,. Cost estlrfiatai.

8. Additiarutp€rtiftdnt infsrmatldn es to th€ nEt{re 6nd Bxtaht *f wcrk perfuFned.

g. Verifieiltisq *f noues te Froc€ed.

5t FIORTH FARK gTFeET, LEtsAN$tl, IIAW f*AftlF$HlH'5 SS766

60944s.{467 LsbansnNH.gov
CR133
EXHIBIT 10
Frsnti Chrt Clerri
Toi Cfli/:{.U!&triti1
CC: ilalilan *rlriisri; Tifi Cd*'irl ; Oav:d ill!'*l:r$
5$hjeet! [EKfERffnLJ Re: I River Parh Drivertlernrlt.!{i!S-0$293
Date: Monday, Aprii 10, ?0?3 5rt?t12 Pl'l
Attaclrment;: 202].01.?:l,EAFlBqi({d-\t/rir |...oJr

C*lvin et al,

l. I wrrtrld $uggcst that thc iltO day c,lock should stnri li'onr thc rl*tc {3124i33) the City final[1'
issuerl l.hc rlccisinn [[rli.l'rc lud ctlrnr:ncnccrl, pnlting rlrt: lfl0 rh5,s at Sclllembcl )"{1,2|121.
Othcrwisc, t0? days *ut of tlre llli) rlays I rvls helcl iu limho nwl{iting titc {liiy's rcspcfl$t or1
conlnrcrlccrlrcrrt r:f cnrtstnrction arrd rrcxt-slclls lc1;ar'<lirt13 the nritnir:ipal sfittrnrvater li*c.

?. Wc r,vill rtr::cd Ciity pcrrui*sion tu oarrrrec! thc i,rypass lirru bcfolc r,vrrk cal ;lrercccd ilrrth*r;
aly"i tltst is cL:pclxk:rrl upr:u ilrc r:uginrrcring {'i'rrnt'l'F Mrrrun iu rcsp*nsc i* }avid 8t'ocks'
l'clrrrrrr'y 2. 2023 tlr:nr0.

3. ,,ts tli*cussecl irt our [,{arch I(r, 2il?3 rnccling fhc <lcl*ycel rcs}}{}nric lrnrn itrc City arrtl thc
threrrt cf builrliug pcrmit revncntion caused rrc lfi par.r.\c consullRnt s;rcn<l *u tlrc project. 'l-hc
'1.i, fulnran ccntracl is in thc rvcnk.s, and it wlll titkc scmc tinrc thr lilclu to cxccule thc rlcsign
:tnd crxx'dirrats *,ith thr. NIIDIIS and {)ity ot'i.r:banon. lior thc srtko of c1{ieir:*cy tr would lilqe
k) huvs l'F'M rlo lhctcn4rorary Din*: ct)rrrrecti*t wurk (lnr nty 4i7123 curili[) si:nulmrrously.

4, ltegardi*g {lie additional I ilcnrs rrrcrttionc<l irr yorrr March 24, 20?3 corlrnlutrri*fitictr. li$ I
rvrnle in nly Mar.c,h ?, ?i123 nlcrur) ancl *s rlisctrsscd in our'3/l(r rtrccting, if'ycu can ciireet nic
to lhe ordinsnceli:eq*ireffielrtldocurnentation rvhrrre the in{brntatir:n delining tltese
l'crluil'c.mcerts alc, that woultl hc hclplirl in crrxu::il:g rvc ;u*r'ieic su{{icicnt inJ<rrtnaiiott ta lrc tn
rt,rrrrplinuce . Oul attcnrcy is o:r vacatiorr ric I [rirvc nct ]rncl llrc o;lgrortunit.y trt rcvicw tltis list
r,vith him.

1, Date that hullding footprint was staked, afier placerne nt of concrcte provide licerrsed
survdyors ceftilication of bullding placement.

'l'hc Contractor
{Nutt's Exctrvating} utilir*ii (he *.xistirrg planri appl:t}vc<l by th* City in thcit
fil]S systcnl ta slakc thc building lbctprint ahcart o{'initixl cxcavati*n J'or the ;trrpose* cl
adtlressing tlie municipalpipr:. T'hc stakcs arc visihlc in thc photos iprnl,itlcd to thc City in
N*r,fl)ec. I was not .lr$in:s a liccnscd surveyor r,vas leeluil'ed ett this stage; per: llte building
1-rr.lurit couditic'rr"q tl,at requireurenl, isu't until fo*tirrgs/lt:nns/rc.inhfqenreri{s.

?. Ccmpleted slalement of special inspections is approved by a reeistereel design prcfessional

and the inspection ag€ncy har verilicatlon of notice to proceed.

Pcrrding

CR134
3, Confirmatlon that the re€istered d**ign professlonals are In your hlre and are ready ta
proceed,

As cxplainccl irt our Slld rnccling, thc full alclritcctural selviccs corrturct rvith lilkus l!4arrfrcdi
finru 30 f.5 in*lurled cgn.ctructiorr overuighl. Th*t *nelcLlyirlg contract is still in iirrcc, dcsl:irc
thu thlce prerricus thlsc-starts, 'l'lrc constmction nr*l:agsmcnt 1:ortiou, rvhich \ry'c lravc ahcady
renelctl and paid fnr'{at l*asf in par:t) fix lhe !0ll* arxl 2(}?0 rtr*bilizafions. hu$ bcen u1:eitrtrd
rind has u rrori{r'rtut vrrlr-re r"rl appl'oxirnatr,.1y $4tXl,tXX}.

4, Redfrcted copies of contract agreements with descrlption of the project, the scope of work, and
eongtructlon *chedule,

]:tl*asc clefi ne rcquirclnerrt"

5. Con*rqction schedule including the project's intended completion date ald start arrd finish
t;rnerfor each phase of the proj€ct.

Plcnss define requircnrcnt,

5. Seope of urork lne luding wlrich colltraetors and suhtontr*fiors are reipohsible for each
cornponent of wor[r.

I'e*dlng.

?, fiost estitnates.

F leas* dcfine r-eqri lclncnl,

8" Addifional pertinent {nforrn*tion as t* the natr.Jre and extent of $rcrk perforrJed,

Whlrl spr:cific atkliti<lnqi lrcr{incrrl i*furnrstion iu s you ri:eluesting?

9" Verification af notice to proceerl-

Ilease $cfi ne retpri renretr{',

Atlaftlrisistlcpc*dtntupnntu{hcCity',rlcspollsctonryApril?..M
Fnnvan{" email, baserl *n nry h{$!ch 24,2fi2V nlc:"!r$ to tire City Managcr urtitlcrl A
F tA$S-\:{ir rk Etr r l}gr i C I'r'i vr tc tfl r'urc rq h if
I l ,

I loak fbrrvard to rovlial I lltp* will lie Floductivr cr:rry*l$irtions ab*ur haw tlre' cily xtrr{Tmn
suFport the dcrreloprnent tf ltiver Parh akin tn llrCIjects clseu,lrcra in thc eity. witk tire gtrnl of
ftrcilit*ting an apprnvcd luixecl-use pr*jcct th:rt rcprcs*nt.s .qufficisnt {ax bns& tr:r nrake
corrsirlemhlc cotrtrihutionii Ltr thc ongning revitaliyntion alrWe st Leh"

AruI as *llbred rnultiplc tirncs pruviously, ['d welconrc lhe planning slafl lu conrc lo thc L..ynrc
ot'liee ir: dissuss River: Frrrls atrrl hruadel tr\,esl l-cb r:lJi:lts a[ any tiruc"

Chet Clem
Frresidocf

cR135
Lyme Properlies

dtet@lyrnepropertte*.cout
{603.) C7t}"?1ll{l {tlirecl}
(207] S7S-1410 {mohite}

lslen4$: bRohq Zoom wijh fi$.

Lyme Fr+perlieg
The U.V*Qb.Ssuer
Rivsr ParLWestLehqSpE
Action trlsn forWest i-eh
A Grean-Visi{ln for l,Yest Leb
Humor & Downtowns?
Decdminalilg frevslopmant

On Mar:24,2Q23, at {?:20 FM, CaldnHil$nervell

{rcalviil"l"lunnewcll(41(}banoll$h.gov} wr$re:

Chet, see atlached approval af csmme ncod work.

lf you have any questions please lel me know.
Calvin f"lunnev;ell
Bulld[*g lnspector
City af Lebanan

cR136
EXHIBIT TL
 CITV sF LHBANON, f\tEtltt HAMFSHIfiE
SU PPOR? STATEMEITI? TOR
AN APPEAL OFAN API\ITI$IISTSATIVE DTCTSI$N

A cover appllcatlon, abutters list, flllng fee and ten coples of the slte plan (lf
*ppllcabte) must accampany tlxls support stateffient,

Slty qtlelanqn tron}fls Qrdlnancel

llPFEAt-$r

e91"1 Admlnlqlrall,ve Apl-eele,

To henr: eind daclde apponls whero lt ls allegod thsre ls error ln rny order, requlromont* doclslon,
or det€rmlnatlon rnads by a*! admlnlslratlvs offlclal !n the snforcoment of thls ordlnance, ns eot
forlh ln R$A 876t5, ln exorclalng thls powor, ths Board mfiy rsvorso or nfflrm, wholly cr pndly, or
may modlfy tho order, rcqulrcmont, deelslon, or datermlnstbn appoaled from and nray makosuch
ordsr or deelolsn ae ought tc he nlnde, alid to that ond *hall have alt potv€rs af tha offlcer lrom
whorn tha appanl ls taken.

Att oppenl ilnrler lhts sectlon shall be taken wlthln 30 dayx of the duts of thu admlnlstratlvg
rleatslon heltrg appenled, or wlthln S0 daye of tho llme th*t the ponon lllln$ lha appaal know sr
hsd rsason to know lhat the admlnlstratlve declelon had been tnqda, The eltect of an appeal shall
be as set forlh ln RSA 87810.

804,S ?p"glglpng:of ths Bsard,

In exerclslng lta poworo tlre Eoard may rovors€ or nl{lrm, wholly or ln par{, or rnay modlfy
lhe ordor, roqulrement, doclslon, or dotermlnallcin appealed from and nrny make ruoh
order, or dnclslon as ought to be mads and, lo lhat anr}, shall have all the powats of the
ndnrlnlshstlvo offlctal irom wlrom the appeal Is takstr-

A, Stalorlly Vote: Tlre concurrlng vole of 3 rnembar* of the Board ehall bo nocossary
to r$deras atry ncllon of lhe adrnlnlsttstlve ofllclal cr ta declde {n fayor ol ths
appliennt or any nattef on whlch lt ls requlretl lo pass,

i arn appeallng the declslon ofl Cslvln l'klnnewall, Lobanon Bulldlng lnrpeclor
(NamelTltle of Offlcial)
made on thls datet 5t241202s

(Flease d,escrfbe the declslon you are aggrleved by ln the space Brovlded or affacfi a
s*parafe sfafemenf-j

Concernlngl Fer the at{ach€d correspcndence, XYZ Dalry LLc ls rppoallng the Bulfdlng
htspsotor'c ul{ra vhes roquost for lnformation relaled io hulldlng psrmlt #2018-09243.

In Relatlon tc Artlcle(s) seellon(s)r sf the

of f-eba non Zsnl ordlnan ce

S;\(fSlzAtllI{C\CAill{eLAUtnVOlSlS\zoA nppltruilon prctrrll\Adndn rrporl\AA* rilJl'tt]Fl.$pd

cR137
\niuff,Hnrh'
.dprl!25, 2023

Lebanon Zonlng Board of AdJuitment

City of Lebanon
51 N, Park Slreet
Lobsncn, NH 03766

Appeal of Admlnletrstive Declslon by Lsbanon Sulldlng lnspactor

Mcmbers of the Lsbanon Zonlng Board af Adjustrnsnt.

Lyme Propertlas seryes ac ths devslapment ngont on behali af f\1(Z Dslry, LLC, th* orvncrcf'rseord
of the Rlver Parlt West Lebonon development. We rre hereby respect{ully appealing the February
15, 2023 rsqilost, and sttbsoqucnt sllghtly odlte d requost on Mnrch 24,2023, by tha Lekranon
Building lnsp€ctor far addltional docrtmsntation to rubstantlato tho commoncoment of consiructlon
q{ 1 fiivEt Park under Lebansn Buildlng Fermtt #201&002?3,

For {roso unfamlliar wltlr tho hhtory of $ro proJoct or eudous nbout tf'to 2016 dato of tho ponnlt, thlc
rcprosonte the 4'h attamptod rnohlliaatlon of 1 Rivar Pork consuucilon following munlclpaldelays ln
2016 and 201S and Covld-relatod suspsnslon ln ?020, Thls pormlt, lssued at ths ond of 20'l? forthe
2020 rnolrillmtlon, has been extqndecl prevlousfy by tlre Hulldirrg lnspoctot

The Fsbruary 15, 2023 m6mo, xpecllically ths thraat to dsclare ths bullding pormlt retroacllvoly
axplred on January 13, ?0?3, cams as r surprlce to Lynna Prope*ies. Wc have sought to oddress
the slorrnwaler llne lssqe proactlvely for ov€r * year itotvr rnd tlrat work ls rtill undarwny, Hovrev*r,
with the I Rivor Park bullding permlt put at risk and the resultant lirnbo crsatsd, lhave
communlcated to tlre City staff that Lyme froportles ls hesltant to lncr.rr {urthor e nglneotlng costs tfi
address a pipe lhat rnay ns longer be in lssue lf the I filver F$rk bultding ls abandoncd,

As exprossed ln writlng on March ?, 1023, ln a nreeting belween Lyme frope nies and thn Lobanon
Flanming Deparlmcnt an March 16r ?029, and agaln ln wrltlng on Aprlf 10, 2023, Lyme bolleves that
the ?-ltom llst of addltlonal lnformallon requosled by tha Eulldlng lnrpector falls outslde the
raqulromonts of the l-obanon ordinancs{s} nnd ths State Eulldlng Codo, Our aitornoy Fhilip
Hasflngs asreas wlth Lyme'a a$ssssment that thls ulfra vlre request has trot bsen substantiated and
ls Wlthout precedent,

Unfortunately, es we hqve outllned puhtlcly nt trww.rj-vefFarkluasllebanpn.eom/path.forvrar* thls ls

not the {lret tinra we l-rave encountarod such delays and confuslan. l-ymak /+pril 6, 2020 merno and
the April 10, 2020 rosponsa fton': then-Planning ond Zonlng Dft'ector Dsvid grooks {both included}
surnrnarizss a prst exomple ef the Lebanon 6ullding lnrpocto/s declslqn belng outslde the bounds
of tha Lebanqn ordinance$, end tho lont tevenue to Xfl Dalry, LLC tl16t was c dhoct rasult of that
sirsrleous declsion. Wo would llke to avold a slmllar issue agaln, with even rnore {lnancial lmpact to
Xl? Dalry, l-LC.

Itl DJry tl0, DovuiapotlLy Lyrnn Progerlltr, 57 Moln Strcoi, Woit lobanori, Nll tXl784
fhono:603.61S'?80OrFrr:&O3.676,?Sl0r[moll:ln{olorivorporkworliebanon,tom

taUti tF.t{ltF!,Iodfti*a

CR138
Nq;rrer
I
Parl<
WcolLcbortoil, NH

Of speclfic lmportanco to thls tlmoly matter, thls stems from a Decembsr 9r?A22 rnemo from Lyrne
Prope*le* rogardilg tho camm€ncament $f conrtruction on 1 lllver park, cnd ths confll*t
ercountared wlth e munlelpnl stcrmwator llne sorving flouts 10 and, as I only recently learnod, "Tho
Falls" dsvelopment a*oss thc strspt, tt wus 68 days bofore I recelvsd the Blllding lnrpector's initlal
cantmunlcallon on Fobruary 15, 2023. Ar of the dato of thls rrenqo'lt has boon r total o{ 137 days
slncc lhls matter was brought to the Clty's attsntlon,

Throughout that titte, tho dovelopment of 1 Rivor ParlE ancl other Rlver Pork lnfrastructure has beon
pttt on hafri ond jeopardlxod arualtlng lhe Clg'* dete rmlnatlon. I have now wa*tod 't5 days for.a
rasponss to my last cornmnRlcatlon on April 10. 2S23, agaln requostlng ctalification nnd
sulxtantlatlon of tho information roqrrestecl- Tho Dgputy Flannlng nnct Devolepment Dlractor
lrolp{ully communlcated ln rerponse on Aprll tOrh that thc Eullding lnspoctor was on vacatlon that
weck. I will be oh vacation the rernainder of thls woek.

Lyme eannot procoed witlroutthis matter l:clng addressed, to I ncw resprc$ully appealthls
doclslcn tothe Lobanon Zoning Board of Adjustfiont.

Sineeroly,

{a*w
Clmt dern
Lymo Proportioe
5I Maln Strset
West Lebanon, Nil 03784

Ce.r
Favld C{em, Lyrne Fr.oportios
Angela McCannu, Lyme fropodlas
Phllip Hastings, Cteveland, Watrers & Bass.

XY2 Fnlry LLC. Dovolopod by Lyrn6 Frsportlar, 57 Mrln Stroo{r Wart tct a'rsrc N}1O3?84
r
Ith*nt: 603.6?d.IB$l Fert 60l.676.i$10' EnrriL lrrloGrirrorporkwrsllobrnon.com
$Ull{f.Jdtl*d+{4{&a

CR139
EXHIBIT T2
 llIlAl,-l'
I"tl$AN$F{ l}UIl,l}ll\C ilt}l}ti l}OAItt} Of n PFIIALS
MONDI{Y, July 11,2013 7:3t} I'M
{.&trectiug l}rrgiu s trnrnrctlirtcll' l'o}knring
Xo*ing lloarri of Arljustnrent)
C*nsril Chnmhers, City Ilall ar
llctnotc Vi* Yilttal Flrlfornr
Lcb* rr {, nN I I. gul /L i \rli
!!l hlfitllltr,lllll Fttfi,iillNl'; {.llrair lVilii;un Kcp;rerrhr:ifur', Vicu Ch*ir Jelenry Katr* []au Nrrslr, I]url
McDonough, $avc N$iv[$vc, Catheilnc I {cr:rbrcil {Alt}

ht ti:t\,t BItIe$ Alt$t,lN't't Jerrni fsr: llarktey {Att)

fi'l'Alili I' ltl*lfi l{Nt': Nrthan ltr:iehelt .' Zoning Adurinistr*[or

'l'irn C*ru,in ^ Dcputy lllannilrg and l)evelol:rrrcrrt l)ircelcir

1 l, {:AIt,'lY} Oltl}ER
2
3 'l'hc mec{ing was c*ltred to *rder rl7:55 FM hy Chair }{qryrrrhelt}r.
4.
5 2. At'Flr(}vdl. oFi!:INtiTRlt
6
?
A. .lsne" 5, 2{123
6
g rlfii ,Sa,rft JOllEI]' lr qtpryre thu ,!ilne 5, 2{}23,:l#rrrte,r ttr^ ltrs:ietil*{l in ilte ,htfy I I, 2{}21 pa&N, ttit[t
10 atn u tdntrlltt; tpitlt a nrcn dnen t,
11 liernnierl bja Mr, Kat*
t2
13 Arlteltdlnclts. Pirge 2, Lilte 35; Ilenr*vc 'crld$' alrct Add 'afllcr:'.
t4
t5 *'I'ht llo{a ou $ta li,loligtt tt'tts rlpSttuviti (4-$-f },
I.6 il:f t'. N e: n l a tw ultxls i ued.
L7
18 3. PI}RI,ICRTHIqANINC ITIIMS
r.9
2g A. Xl'n D.:rily,I.'LC, I l{ivel l}:rrk I}r ('I'*x Map 4.{, furtt 2l-30 & }\{ap 44,l"ol ?}. eurrrd tt-
21 3* Cltl) & [ND-[,: An rllpcal tl'rlrc l]uilding 011icia]'s dctcrnrinatiftll pur:su:utt to tr,ebanan
2l Zouiug OrtJinunce $ection $fiO l.l Aclurinislr'ltive Appelll, *nd sectit.:ns $6?e:34 I'owers of
LJ !)uilding Cade Iloard ol'A34rerts that addilioirel dcicuruentati*n is r*qrrircd to suh.crrrxlirltc the
24 con:rncncenrent of constructiotl trf I Rirner: Ilnrk urrdel Lebanr:n llrrilding lcrrnil #2St6-
25 00?93. llCBAz{}X3-01 - (husitlcra{ien oll.lr.rrisdi*ti*n {lontinued fronr Junc 5- :t}2:l Mccting
26
27 Cltet Clerrq PrcsitleuL of Lynre Propertics attd l)$vid Cleru, nian*gcr ol'XYZ Dairy ap;:*alcd rn
'28 bcltillf iif'llrc ;r;4rlictrtiorr. A *rtbsccltlorrt filing lurs nrridc hy June lg'l'. Thc aJrllicant r,v,.l|i sskeil if
29 lhcrc wa;* anlthing hs wanlcd to aelt't, Ile hasl a couplc uf qrrcslians anel olfered rr tlresult*tior-1.
30
f,t l-ytlrc Prolxrtics lias praroidcil docuuxulltrlicn *nd {}re r;trcsiion trf t}rc tirnelincss is il r}i&tter' of
32 itrtcq:rct*tiott. Therc is soutc rnissiug inf;armation al;out thc tlates anel lhere *r*: riuin*rcu$ €ntrs thar
-33 are ttu{}innd in the suirsequfnt fficts, lllhc nrnttcr ollinrelirrcss wfls not on tlrcir ladsr uuiil it t-as
34 blrught fcrrh by thc Ciry"
35

cR140
 l,cl.:*nou llnildiug l.\ttltt lloeril ilJ'Aptswtt I'titttlr.:s . !4tp1rlay.Spsl1,] l, )&!:l Itupiu 2 af I

1 il,l'. I{atzsaid thc s-ruu tota} of tvlt{l tlrey ncrd is iii tht-. Itebnlalg 20?l l}ucurnenl u4ter:c lhc
rllrplicant$ wcrc frshed ttt lluvidc docrrrrrerriirlic]n tr] nltr$\y {ll+ City to rrrakc a dr:l$r'nrinatielu snc! to
J estlbli.rl: * date whcn il. can bc appcalcel" lrt thc March 24, eloc*nrrn(s thers w{rs rr$ dccisirn rntt<le
4 rnrrj no tl"rte of apFeul wrrs cslgblislierl, lls lrclie vcs {}ris inrlicatrls liris is art clrgoin6 <liak:rgte. nr1{l ltc
) rtrtes tnl lii:ticvc a tlccision w** Rl*([c ffid I:c lnlievcs thc l}oard ihcrcli:rc dccs nol lrftvc.irrrisdicti*n
6 ttr:causr: ner dccisirrrr ltitr bccrr ruadc, ()ttrcr rrrcnrhcrs rvo'c irr cgrcenroli,
1
I Davlid Clcru $tr!()t($ \uitit rll duc !'(:spsctl lrc cannnl lreltr hrrr hnllc bnclt io tlre lTrrriious hcadug. W*r*
I har lrrect suslrr:rrde d besnusc of tlris lrear irtg. 'fhe cxclvali*tr trf llrc xlor'rrnvir{cf s*rvgr hfl$ br(1n .I 'il$rt
10 oi'the pl'oble rn, I Is asfte{t il'th* last oitcnsion is stilt in rtftcl $r this tiurc,
1"1
.t1
Mr'" I{ttz cltlifitd wl:at hc secs, A{ lhc stail, $l'Junc, l\4r. Clcnr cs.scnti&lly saitj thelc lrad lrccrr r k:l cl'
l5 dorlvelsatirri$. llecitrrse lrc rvorriul llcrr: wirs going tu bc a drcisiarr agriuri hinr, lrc tilcd an *p1leat.
14 A[tcu'ccy 1{nslings prcscntcd thc npinion thaL this is llol a ciccision aud slroxkl not bc he.]d against thc
15 alrplieants. Tlrerc il:'f trvei illtc,tlative-i, rhr:rc wes r1ff clccisiorr rathcr a <iiscussiorr with no finalily, Ol'
16 ha:llrisg()nc{)vcr'llte nurrrtrerafd*ys" 1[s.trulievcstht: IJuurcl oa]lrlgrce itratn*rdc<;iliir;*hnshccrr
1.7 nuids and {hcr'*ltor'c the'r'c c.trlrxrt be *rr alrlteril.
18
1S Mr. Clern asked il'f bc buildixg purnri{ i.r .rtill ncUvc and is ir s*hiucl urtly to ilrc conditions oletrc
20 oliginal lrlilrlirrg pcnrrit lu'is it subject h1 liltr ntidilional irrl'crrurntir:rr askirrg frrr prcnf llrnt any
2T ceinslrrlcrt ir) rr i I g c'cu rt'iug"

23 fi{r- lfutr A.It}YltV, rct*tive lo tht XYld I}aity, t,LC aJryttal af tlrc Building Otfitiul's deluminutiotr
24 lrut'stttuft lo l-t:bnnott i4aning #ydinltrc s$r:iifitt $'#0/" t, {he |,e,btttton llailding Cade Iloarrls ut'
'lt{ Apytttls tlrterninrs thtt lltis u1ryeal ht tlistuissu! nn lht grnnulh th*t nt itt:ixian ltu* hxt* ntudt,
26
27 Secntded hS' il{t'" Nax,l*re.
28
?9 *?lt*e" lstrc cu tfue .Motisn t;w tutanintautly app'fi1,ed 14-15.
30 J{ll AfiLrlr r'()ftd rltrJ).
5l
32 Ivfr'. Kntz irslqcrl about tr.lving n lrr:rtprrhlio nrct:(ing pr:irrr tn tlc Aug,usl. ? llrccting. It would lravc lo bc
33 rlotic:cd,butiEcan[rctlsnc.irrS:tivatcscssion. If q,ortidtrelrerlplul iftltorcx.t;liridoctl*ler*!ruit[r;r
34 deeisinrr,
35
36 4. ADJGUITN[,tTiN'I'
5l
38 l/ice (iltu[r I{sra Milf.itlIX to nl,jtrcrn rhe ueetfitg nt fr"?S J1{f.
39 Srcortrtrd ltlt Mr; Ifnt' ,
4A *I'lte llote ffil Nte M*litttt *'*g t$ttuti,tto*r13, u1rytr*r,ttl {S-fi5,
4L
4'1 R+*pcct lit I ly $uirlr"r i!{e{l}
43 l-indar Billing*
{t Reccrtling $ccretary

CR141
EXHIBIT 13
qqivff.,fi.*rh
Arrgtist 3, ?fl23

Calvin l-iunnewell, lnepeetor

City cf Lebanon
Planrrirg & Devekrpnrent
51 N Park Street
Lebanon, t*H 0376&

Rer 1 fiiver" Fark Drive {Euilding Permit #2O16-003?3}

Cal'vin,

Now that the Building Coda Appoal* fioarci confirrned orr July 11t 2A23 that we have eominerrcod
con$triletion ,rrlr 1 Rivilr Park l)rive, we r;c:r,:k y$ilr ilFproval c]{ the tei}}Forary rel,tcation ef thr.r
mr.rnicipal/NH DOT stormwater iin*,thar impacts ofir Fropcrty without bene{it ol an easenrent.

Flease trste thi|t this request ir distinctly rslatecl to corrnectirrg to tl:* tr|l?poraty cotinectiorr that h+r
already been c{e:iigned arid installed undt:r ;ncarts arrd rne*rods o{ tha 1 River P;rrk Lruilding pe rnit
{#Utl16.{J02?3). tt is independent flcrn the final stormwatcr dosiqn as prosently approved, and can
proceed indepenclerrt fron: the ongoing conversations about an alten:ative solu'tin* as
nr,rmnrirlized irr ths Febrr"rary 2,2023 con-rrrufiication {ron: DeF$ty Ciry lt4anagcr Davici Broolrs. T[:e
iemporary salution is snder the jurisdiction of buildtng permir#t016-002?3.

As y*tt are nw;lre. tlre curren{ $tonnwnter line daes !'rot serye arty building footagle at fiiv*r
Fark. Moreover, tfie ;:ermanent relncarlion o{ this stornrwate r line falls un<ier the iurisdiction o{ ihe
Lebanon Departrnent ol Publie Works, the Lebsnon City Fngineer, and has been apprcved by the
l"el:anan Illanning Boarcl as parl of their Site Plan Appnrval for tlre Fhased. Derrelopment l:f River
Par{<. I'hs perutanent strlution is to be corr':pl*ted prio.r to tho Cc,rtificatc of Oecupancy of 1 River
Park, *nd the cot*truction plans have previou*ly been approved by the City of Lebanon,

The huilcling perrrrit fr:r 1 River Fark {#2fi16-00293} eloes not incltrqt* the oi{.lat infrastrr,rcturc wr:rk
{trr the entire sile. The storn:water requirenrents for "tr River Parltl Lot t have been properly
desigrred by TF Moron, Civil Engineer {or this pr*iect, and were approved by your odice w}ren tne
pern'lit was issued {or the mixad-use birilding on Lot 1.

This ternporary stsrnrr,A/al;er line v,ras inclnded ln the August 4, ?0?0 reqi.lert for amendrnent ta NH
Alteration o{'Terrain permif dlAr:rT-O9?4 sent on behalf o{ X}? f)airy, t I C hy TF Moran ts the
NHDES -Watsr Division, Alteration af Terrain Program, J'he resultanl permit exlefiEien {4,oT"09?4A}
wa; issued an October 30, 2020" The City of l-ebanon 'n*s copied on bo,th scmmuntcat,ions.

I"hc temporary line is {onsistr,rnt witlr !:est practic.es a[td irtsirns arxj rvrcthsd* crdkrarily in';r:lvcrJ i1
the execution cf a huildi,rrg permit and the discovery of unklawn conditicns. ln tlris case the
irnlcnovfR conditi*ns uJere the siz* and precise beation a{ the stormw*t*r lin*, the exteni af the

XYZ i.t;tir"y tlrj, D{,u+:df->*dJ by Lylr'a f'ra!:rertiq*. l? Mairr Str**t, Wwt L+h;r1rr:n, Nli (lJ/84
firunp: f,t]3'tild-7Bilfi r fax: i03-d7{,.?81{1 . Fnrailt irrfoftrivclparkv.,cstfptrannr.ccm

CR142
Rqirrer
- I
Park
V/rrrl Labsrtc'rr, Nl I

catch basins in Lebannn ancJ the Nl*'l D(J] that feed into this storrnwater iine, anc,f the rlisclosure that
Tha Falfs stormbtt'Jrtrlr rJesigrr atso {oadr into this municipal storrnwater line,

The temporary soluti*n l*las engtneered by TF fr4orarr and installed by f{att's Excavatiorr, the
subcontracinr hirecJ by XYI Dairy tc ci:rnplete Crafts Jrvenue irrlprovements, Crafts Avenile
fxt-r:nr'iott imprr:venrents, *nd the Cross Cauntry Connector, Nntt'r, is an apprr:ved contractar within
the Ciiy cf Lebranan. Tl"re ir-r*tattccl pipe is a 24" I-{DPE, r-xore than su{icient ta handle the i,rxirting
municipallstatelprivate stonnvrater{lows presently running through Lhe existing '18'' !ine, Thcrc rs
na issue or ccnflict with the Cros* Country Connector', per the as-builts plrvided to the City o{
l-ehanon fcrllowing the r:ornpletion ci the Cross Country Ccnnectar work in 2Q22,

The only thing th*t r*mains ta allow work to cantinue on the exc6v*tiorr for 1 River Fark is the
cannection cf the existing line to the ternporary line on Lot 1. This can be accomplished witho*t
any excavation lrr the Cily's Right of Way of North Main slr ftou1e 1D urrtside lhe uorrr1rar:l area,

We retpe*r{ully ark that yorr allaw us to proceed with his work ro that cxcavsiion can ccntirtu* as
sor)ir ;r$ i:,"cticabte" Ycur favorahle dsciciorr will aliow XYZ Dairy and Lyine Prcpertierr to market thc
completion cf 'l River Park accordin[J to a realistic tjrns fram* and ncheclulr:" lt l,',ill also dictatr: tlre
cornpNetion schedule for tlre cff-siie infrastructure work necessary tarthe issuanee of a certificate of
occuFaflcy upon 1ilO% con'rptetion of the building,

Follawing the deterrnination of the Appeal Eoard, we l'lave restarted conversntionr rvith projeel
partners that werc *uspended because of your Febru*ry I5, ?023 nomnrurrication. $/hen the
Cr:nstructjon Managetnent contract is finalized, XYZ Dairy will again notily your o*f'ice in writirrg as
we cJitl when Cansigli was terminsted due to the Covic} cmergency.

Tirne is o{ the essence {or this decision. I look fonnard to your favor*t:le respofise.

Sincerely,

(Ww
Che.t flom
Lymc Properties
o'r hclralf of YY7 Dairy, LLC

Cc; David tsrooks, Deputy City Manager, City of l-eiranon

Nik Coates, Dcputy Clty Manager, Clty of l-ebanon
Brian Vincent, City FnEineer, fily of Lelranan
Jay Cair*lli, Acting Pul:lic Worl<t l]irector, {iig of Lel:anon
Rod Finfey, City [ngineer, City o{ Lebanon
Nath*n Reichert, Dir*ctor cf flanning & Developnrent, Clty of Lebairsn
Tim Csrwin, Denuty Director of Flanning and Developrnent, City pf Lebanon

Xfl *oiry LLC, l)cv*lop:ri by lj;":rc ftoperri*s. 5i t'iain Strnct. V'Jesr l.efxr,r:n, I'Jll fr37S,{
I'ie.r,e: $QJ"47i"?$r-Xl r l"y: {,01"67&.7410 . tmai!: in{e@iv*rpari"r'.,artlchn.rnn.qerrn

CR143
EXHIBIT T4
Frsnr: thdsl*e
Te: f)av{d 8rffika
Cc: cali,{n l{unn.:r,;alli Sh-fl"gl$; 8r,iftn Vinrent;:av retrclii: t{6d n'rkyi ilAthsr} nrich.'d: linj*ei$ OsitidllflrFrj
Arr$qlq.f.ltCi4rlp
$ubJectr Re: IrXIrRNALI Tsnrp StDrmlat,er cornsciion - penr]lr 112016-€$193
Dhte! frlday, Aueust,4,20?3 l:26t97 PM

reeognlr4 the

Ilnvid,

Th* {lity wa$ {:sr{i on all thc cor}rt}1t}nistltiorts r:egatding the A(-}T perl}}il rvlrcr: iN wn$ cxlcldud
lrack in 201CI, anrl TF Mai'*n addressec{ this issue wilh Nl:IDIIP:

Addilioeratlyn thi: altplicant i-r proposing a rnin$r plarr changc to th* apploycd dlarvings. 'f'he changc
c$ttsistl.s of rclocxting lltc uity-nwnccl clisehargc of an cxisting 18" slolrnrv'*rrlr culv{rt otr ihc propcfly
iil r):'dsr lo c$n$fi1tct thc l'eiundation of !{}0 Riv* Park Drivc on l"ot l. l'hc propnsi:tl clrarrge rnccr.s
tll thc tequit:etnents urrdcr lltv Wq l5{)3.21 (d} urrder: ilrnngcs thflt a{ut brr nradp lvithcut nprplyirrg for
&rr rnrcnelsd pcrmit or lr(w iren'nit. As strch, trc bcli$ve thesc chunges nreet tlrc intcnt nlthc
tngul;rlicrrs i,cl pet'rnit norlificatiotrs t$ th* Approved Fr*jer:l,

I unticrstatrtl fhc arlditi*nal rcquir'emcilts {r$ it rcla{cs to ;t pclr}lan(:ilt $o}utioil, but it rcmaits
cur: ltttsiliuu thai tirc {.errlpilrary sol*tinn is within {hc City's jnrisdiction tn a;r1x'ave ihc
untpol"nly te-rcuting undcr th{: building pcrrnil" "t'hc conncclion can happcn an ldivcr Parlr
Ft'$perty, put:*id* thc I'ight rf uray.

Tlte prcsant conditio:r is in frct also a ternporiuy $ohtt"ion a$ the. pipe was rcclirected to ils
cufrent rout€ aftcr' fhs ftlrrncr City lingineer *pproverl site work tliat bl*cked tlre pipe,
r:cquirirtg rhe cnrert t"-l'{:}utillg atlcl il. hacked up.

Ilow th* ility wish*s tu handle tlris is your prcrogrlivc, LruL thc Cii.y's pipc is prcventi:rg vrorl<
rui I Rivcr Fat{c fir:nt **n{inni*g- As wc'\,c botlr now n<iled, this pfurc does n*t Hcr:}c ltivcr
Park whutsoevcr and j* cxluustjng on ixtrpr$pcrty rviilrou{ sasrmert.

I look fbnvard to rccciving tlre City's proposed sohrtion for *roving its pipe ortt cf thc way $o
our work carr cnntir*r*"

'l'hanh you,
Chct

lln Aug 3,21}23, trt [2124.FM, Davirl'liloaks .iDavid.]3ruolcs@1e[:rrrrunn[r,gcv>

wut:te:

f'|ral'

CR144
Is*w that Nate Reichert tni already alerted you that Ca}yln Hunnewell ls out a'f
the office until :next week. l'lowever, it is rny feeling that the Bulildtng lnspeetor ls
not the correct venue tbr addressing the Route 10 storrnwater connection issue,
which, as you noted, does not handle stsrmwater gnnerated on Lpt 1 or
elsewhere wlthin River Park,

I have asked DPW representativ*s, wl'ro were also copied on Vour email below, to
.n*gage with yc* about the Route 10 stormwater ronnection reguest so tFrat the
existing stormwater plpe can be msved out cf the way" As a remlnd*ro the
February 2, 2023 erna{!, wtrlch is referenced in your lstler, outllnc$ several pi*ces
of informatlon that the City needs to en$ure the tenrporary, alternate storm.
drainage system is adequat*.

Ag*in, I have asked the City Er gineers cr other $PW staff to contaet you td oFEn a
dialague in order to get the rnatter resolved.

fu';f

FrasnlChetClern@
$enfi Thursday, August 3, 2023 10111. Atvl
To I Cs lvi n H unn ewef f <Caivi * il"! u n*tp,ttr.gl tt$ le
f,* David $rooks <Devld"fmaks le Nik Co*tes
@; Brian Vlncent {hriin.?incpnt{olsh*nnr|nlt.gorl>; Jay
@;
Calref ll llod Finley <rad.finley@lp inonnh"eov>; Nathan
Reichert <ttethan"Reichert6!@; Tim Cnrwin
@; DavldClem<dcfptrfilyryqpr, *rlie >;Angeia
McCa n na <fl!fiFcqilnnplyrnaprop€
Suhje*h IfXTARNAL] Tcmp Stormw€ter connectiofi - Fermlt f2016-S*293

Caluin,

P[ease fi*d the attached ffiemo regarding the tennporary sotutlon frr the vlunlclpal

CR145
$tarmwatnr linp in conflict vlith the I ftiver Park fi:undation, and requestlng approv*l
under Building Perrnit 112016-CI02"93 to make the cnnnectinn so thatthefauneltttnn
exsavation and construction may proceed,

Fnllowing delays inrurrerl parlim thts year. your FromFt response and approvalweir"lld
be appreciated"

Thank you,
chet

che t F tygU:Rgurer"f l*;cars

603-676-71S6

'l'his rlmail ha* beon scannecl iorrrpam cnd vlruse$ hy Froofpolnt Fssenlisls" Click here tfi report
thi* email *$ spanr"

<20? I f)80 S R'eq u ert ftir t$mporft ry $l,s1nlwater eonnect ion "pdF

CR146
EXHIBIT T5
q River Park !i,ii:!i: i..r.ri)nni:rt1. lr J-'l
Appendix L

Lease Froposnl; L River Park llrive, l[rest Lebanon, NH 03?84

Propos*l F*fr: Oetober 16.2A23

Prep*red For:

Frepareil By: David Cleur, Manager

XYZ Dairy, LLC
57 Main $treet
West Leburcrr, NH 03784

Tenrnt:

Lsndlord: XYZ Dairy, LLC, or Nonrinee ("Laldlord')

Buildingr 1 fuver Park Drive, a tluee-story building rvith a fuU height

basemerrt (tlte'?trilcli*g') consisting af approxirnately
59.804 rentable sq$are feet {"RSF"), in West Lebalou,
M{, located on the parcel of laud known as River Park Lot
I (the Building and such parcel of laad hereinat'ter being
collectively refen:ed to as the "Fropetly')" See Attacluueut
A"

:ah Llmc *opalitr

l,ii't,
r:- Page l.
57 l{air Stet
Wstkb'M"NI{01?8{
60]-6?G?tnc R084
io&@ba.propert6.c€hiY-
 isssstrg*@

1 xtpuaddv
 Appendix L
nIVER PARK V{esl Leban0!r L p*

Welcome to
River Park
Along the banke of the Connectieut
River in Wsst Lehanon, Hew
Hampehire, River Park is a 38-
acre maater-planned, mixed-use
development iuet minutes from
Dartmouth College and ite growing
rasearch, teehnology, and life
ecience cluster.
River Park will be the Upper Valley's lrnesl researclr park.
an exlension of historin West Leban<xr. and it will provide
public access ta the Conneclicut River. The;nixed-use
development will include over 81i0,000 t.l'. uf life science
researcir and cffrce space. service relail, restaurants,
single farrrily hornes and mulli-fanrily housing in a
pedestrian friendly en.;ironment.

We invite you to join us at the next center of

the Upper Valley'a innovation ecoeyrtem

River Park is envisionerj as ?he future hame for

con:pani*s building upon the lnncvatirr* and technolo0y
coming r:ul of Dartmouth College, :heTuck School
of Business. the Thayer School of Englneering, and
the Geieel School of Medicine, as well as Dartmouth.
Hitchcock Medical Center, New Harnpshire's *nly Level
'l Trauma Cenler and academic medical center.

River Fark is fully permitted, and ideally positianed 1o

serve the existing and fulure *ernrpanies that call lhe Unmatched Architecture
Upper Vailey home.

1 River Park Drive was designed by Howard Elkus of Elkus-

Lyme Prcperlies has built over 4 million square feetr
Manfredi Architects. lnspired by ihe sleel hridges spanning the
r:f life sr:ience rcsearclr space in Carnbridgc, ll$slon.
Conlecticul River; the building lacade is desigrred fr:r a bl*nd
and beycnd. River Park is our latsst projcct, cieating a
of restaurartt, retail, offlce and lahor;tory users- ancf v;ill be an
campus cf innr:vation just llot'vnsflcam {rom {)artmouth.
ancl:or af activity at Rivcl Park.

2.0cR086
 Appendix L
RIVEn PARK V.1€st Leban$::
ly$

ff
.1.'!..:: +;

@
: -9F e r *1 $ a'E

,"*

:"

A Riverfront Campus Central to the Upper Valley

The project is designed as a walkable green campus l',,ith a mix Located on Route 10, just minutes fronl Hanover and Lebanon,
of life science research, offlce, re{ail, restaurauls, and hclusine to and lhe highway svslem, the River Park location
creale an active livelyrorklplay developmenl v,lith unprecedented 'nterstate
avoids {he cungesliern cl'olher local comrnerce certers. An
access {o the Connecticut River; Dartrnoulh College, and the Advance Transit lrutr will be located a?. the siie, lryith four tree-ride
Uppr:r Valley" l:of Ino{e, visit wrryw, *ren d safriver pa r k.or g regionaf bus lines ci:nnecling at Uiv€r P0rk.

21CR087
 A)
.i#'i l..::.qrr:( 4s,fit i%nf,J J! v$8'e vsxv 3f,urO @
ixrli *s ott'r vsuy troddns @
o
Q5 i0iU.}l:i$la::,clri r{3{.,at I e tc't :{ggs} lt rgg'J vaxv 8lrt t
O.
N'
c!l
J ?i! rlr:r){) n.;,1s,{ f------*:

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lcl
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CL
mlte!,I
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'3ql

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a3ur0/qsl acu0rss"ar!1 0^110 rjj8d ralrx I
I,
ta
I Lr*ildo ryl tsal :Fu!p[n€
E
.(
A
c
c :t, l
 Appendix L
nryER PARK West lebsnon {
&
Z
o

sExsFEgg
ffiffiWilHffiWffi

t:

t .,{
ll,
i

,11 .J
.i::11.r
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23CR089
 Appendix L
RIVEn PAnX Wesl Lebanon 6
tyR

..:i;;41;: ;

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1.

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nsi
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24CR090
 Appendix L
RIV€n PAR,( V.iest L:.,bal1r!:, 7
b*t

Project Team

J.*$',*

25CR0e1
 Appendix L

- Our Past Portfolio

Lyme brings a proven track record of award-winning development
for leading life science companies and institutions.

v 1.*zt
A t, :\;
/nvlh
lrtritdiril r6rar it;tcAlr ila
fiis BItoAD
{,/f41}i(111!-,1}

if;$ i.\s.i.l:.\ :r_lllit{

6sl a rdl I
.i l': l
r' l-
t71,1

Fotlrils h4;:giraine ttiintcri {ler}zr,/ntL' {)r:rrlci a'rrc: ti "The Five Most lnrportant
Green Buildings."

2{}tlB I'iarlestorr Palkcr }..{r'lriirl for "Most Seautiful Building in Boston"

Awar ded 1() {:}r!r/yr ne {.{lr }1{rr^

l.yrtrtr's Kenditil {}<lttarc {l(tvi?kJpll]{rnX tr,'r:r:ivr:rl llr{ 2006 EPA Phoenix Award
fo t I x,: c l L,r r.r r:i: r n lJ t r: w n f e t] ftrl{.l evp !) lr } }f] i t t
r i l t

Atrtericiirt ltistilutlr r;1 Arr,:ltilr-'r:1s liarilcr:l Ocirtyllii,'{.1(-,nlrjr rirrt: rlf ils Top Ten
Projecls of 2004

Genzyme Centel !!;r:l lh(j {rtiil lrtivate ly frrr;,i|rt-:ttri l,ti:{,i {'i{i!!rt.iit't {.:ll$e
hrildirrl; iri the tJniterl Siti:tcs.

Center For Life Science Boston waii the fusl i ::i::,ii;ii hiqlr'rire lal oralor.,v

- tf's Fasy Being 6reen

L-vtrtt:: ['rr:;icltie: is ni,iirr-ltraliv kill]wn iur*,:xtellet.n,;e irt urbern clesiiin,
grL:o'r l)ujl(iittqs,;,iriri ;rtllilllivtl I(---tJ3{:t wiiir;r 1:t.,t t{'-;lio r,.,f tili;ir:tj-r.;st,,
ilrtijcr,:1s 1l'r;rl iia're e:ial;ltslrc-,i:i ilir-iIfierini:j sialljatri:; fol arr:rhilgi;lur,,,,
li:tti j tt:rr, (lli{j fil}1li(jr vaiiott. !iJt,: i;crr,; i.rti liiL: r}tilr-il{:li 1;li,:t rnittq,
1-ri",t:trillirrq,;jr-ii,i {:ry.r:.a,r1-r!ir;it cl iian:;io'it-rl'lilla,.fi:,ijl L,:;inic ptr:rj{:rili..j,
rJlt.rirtil,{i itt;r 1-rlli{t..:,r.,ptliy L.ri cr;t lnt;riii} ilitill;L:iirus ilt,vr-'ill-:trrctii

www. lymeproperties.com

26CR092
EXHIBIT T6
\niumtr*::k
January 5,2024
Calvln Hunnewelf
Suilding lnspector
City of Lebanon
51 N. fads Strset
Lebanon, N1103766

fta: tsuifding Permit #201*-00293

€alvin,

An update that X\'l

Dalry, LLC ir actlvely and diligently pursuing the c*nstruction of 1 River: Park
p*r City of Lebanon Building Perrnit #2S16-002?3 that was affirnred fls '"actirre" by tlre t-ebancn
Buifding Code Baard cf Appeals on July 1'1, 2023.

We have named Engleberth Corrstruet,ion as our Construction Manager, and along with filku$
hisn{redi .{r-chitecb *nd the rest of the ;lrroject t€am are w*rking toward thre Spring, 2024
construction season,

Additionaf infrlnn*fiorr *ill be provided by the pr*ject teann in due course.

Sincere ly,

ChetClem
Preslclent, Lyme Froperttes

X!? I)*lry {-t.f . f}r.velope<I }ry Lyrn* Frrronrtin*. !i7 lr,{aln Str*at, tl*sl L*traron, NH 0:}}S4
Pir$ne; d01476-7SSG i taxr 603.{,?6"?S1S r Ennail: iof+€riuerpet}r,re*liebs*on.cott

:S&l0lltri* r{ ureq{ d,J*lq4r} ,ea CR147

EXHIBIT T7
 EXHIBIT A

alr4lpAvrT
I, David Clem, do depose and state that:

l. I am over I 8 years ofage, possess personal knowledge ofthe facts contained herein,
and am competent to testiff thereto.

2. I am the Manager of XYZ Dairy, LLC.

3. In connection with building permit issued by the City of Lebanon for the
construction on the properry of XYZ Dairy, LLC located at I River Park in West Lebanon, New
Hampshire (Building Permit ll2Al6-0A293), since July ll,2A23,XYZ Dairy, LLC has incured
direct costs of $221,838, has paid $378,600 in materials currently on-site for the project, ancl is
contractually obligated to pay another $652,303, These expenditures do not include any of the
overhead costs of XYZ Dairy, LLC or its affiliates.

I HEREBY SWEAR, under pains and penalties of perjury, that the contents ofthis affidavit
are true and accurate to the best of my knolvledge and recollection.

Date: A?/l/ t7 razl

I Clem

STA'|E OF NEW HAMPSHIRE

CO{.INTY OF GRAFTON

On this 17th day of April, 2024,before me, the undersigned officer, appeared David Clem,
known to me (or satisfactorily proven) to be the person whose name appear above, and he
subscribed his name to the foregoing instmment for the purposes contained therein.

NotaryPublic/ffi
Name:
My commission expires, *Bgg
Jfig$,#;.11*,i. r', z"'
MaY r '
MY Commlsslon Expifge

TOOD D' HE$S' Notary'Public

4889-4609-9895, v. 1
' "Eia6'or tic* HamPshito
r*taY t' zoz+
My c;fi1illil-diPrres

CR164
EXHIBIT 18
 Crrv op LnnANoN - PLANNTNG & DEVELopMENT

NOTICE OF DECISION
LEBANON BUILDING CODE BOARD OF APPEALS
BCBA2024-01
The Lebanon Building Code Board of Appeals, at a regular meeting held on May 6, 2024, approved the
following motion made by Jeremy Katz, seoonded by Dave Newlove, by a vote of 4-1:

On Marclr 6,20z4,XYZDairy,LLC ("XYZ"), I River Park Dr (Tax Map 44, Lots 2l-30 &Map 44,
LotT)ZonedR-3, CBD and IND-L. Pursuant to City of Lebanon Code 36-13. A Building Code Boald
of Appeals, an appeal of the Building Offrcial's determination that Lebanon Building Pennit #2016-
00293 has expired and is deemed to be invalid, BCBA2024-01

On May 6th, 2024, duly-noticed hearings were held on April lst and 18th,2024. Testimony and legal
argutnetrt wet'e talcen from Appellant, represented by Attomey Philip Hastings and XYZ representatives
David Clern and Chet Clern. Testimony and legal argument were taken fi'om the City, represented by
Attorney Matthew Decker and Building Official Calvin Hunnewell, XYZ and the City were provided the
opportunity to submit additional briefing ol infomation; as well as to refnte, r'ebut and clalifu until both
rested theil cases, Dan Nash, a member of the public, spoke in favor of granting the appeal.

This Board has jurisdiction over this matter pursuant to NH RSA 674:34, lrbanon's Building Official,
interpreting Section 105.5 of the 200g lnternationalBuilding Code ('BC"), nrled that pennit 2016-00293
has expired and is no longel valid. XYZ is the landowner and is aggrieved by that decision. ln this matter,
ourjurisdiction is derived frorn XYZ's clairn that the tme intent of the code has been incorrectly interpreted'

The positions of the parties are summarized as follows:

The Building Official, tluough the City Attorney, argues that IBC section 105.1 defines what activities
requile a permit and section 105.2 defines what activities are exempt. The Building Official fruther algues
that if XYZ's activities require a permit (I05.1), then the activity required to ensrue the pennit's continued
validity tnust be activities identical to those that required the permit in the first place, The City advocated
fol denying XYZ's appeal based on its belief that Section 105,5 requires that work be physical, on the
approved site, and any such work be the type that would [if considered individually] reqnire a permit.

XYZ, through its attorney, argues that the position taken by the City is overly consfrained and not reflecdve
of the tme intent of the oode. XYZ argues that its continued investrnent in the project, and development
effolts over the relevant six-month period constitute "work." XYZ also argues that it is entitled to rely
upon prior interpretations of Section 105.5 of the Code rnade by the City.

Interpretations of the IBC are a question of law, and our review is de novo.

I. FINDINGS OF FACT

Based on testimony given, application materials presented, and supporting documents submitted, the
Lebanon Bulldlng Code Board of Appeals makes the following findings of fact:

51 NORTH PARK STREET, LEBANON, NEW HAMPSHtRE 03766

TEL:603-448-1467 FAX:603-442-6141 WWW.LEBANONNH.coV
CR175
NOTICE OF DECISION
'l River Park Dr (44-2'l-3O & 44-7)
BCBA2024-01
May 6,2024
Page 2 of 3

We find the following facts in this matter':

l. Tlre Bnilding Official issued XYZ Perrnit #2016-00293 on December 31,2019* .

2. XYZ paid a fee of $90,492 for the pennit.

3. The Buildirig Pelmit is for the development of a new mixed-use commercial building

4. The building perrnit states:

Description of Worh: New rnixed-use courrnercial building withil Lot #l of the River Park
Subdivision

5. The development of a new building on a previously undevelop€d site is a conlplex, rnr"rlti-part

endeavor', This endeavor requires engineedng, architectural planning, multi-agency coordination,
matedals procueulent and contlactor scheduling. Although not unusnal for any major'
constl'uction project, these complex activities are distingrrishable frorn colmnon single action
activities that also require perrnits, such as a rninol'r'esidential elechical upgrade ol heating
furnace installation.

6. Tlre Building Official issued a letter to XYZ on Ma1ch24,2023. That letter identified 8 bullet'
pointed topics disctrssed on March 16,2023. None of the eight topics discussed involved achral
completed physical work at the building site. The written detennination of the Building Official
states as follows (emphasis added)t:

As a resull of lhe meeling dnd yow follow up e-mail senl laler lhe same day, we crgree lltal you
hct'te.ittslified lhe preparalion worlc .you have been preparing wilh votu' conslntclion parlners
cottslilules cottmetrcemenl of u,orlc al I Ritter Parh Drive in accordctnce witlr Citlt ol Lebanon
Bui I di n g Perrn i t ll2 0 I 6-002 9 3.

7. Tlre Building Official issued a letter to XYZ on Febluary 1,2024. The wlitten determination of
the Building Official states as follows:

It is nty delermtuqlion lhal lhe vi,ork on llte sile auiltorized by Building Pennil #2016-00293 has
been nspended or ctbandonecl for a period o.f grealer than 180 dqts. Consequentll,, Building
Pennil #2016-00293|tas expired and is invalid.
B. In the six-rnonth peliod pleceding the Building Official's February 1,2024, detennination of
expiration, XYZ inctured direct costs lelative to the development of the site totaling $221,838
and incuned contractual obligations to pay another $652,303.+ Iu that same time period XYZ
engaged tluee engineering firnm and one alchitect to rnove the project forward. The amount of
rnoney invested in the project within the relevant six-month peliod equates to more than nine
times the original cost of the pelnit and exce eds sevell percent of the $ 12,296, 100 total estirnated
cost of constt'uction.

9, Thc City conccdcd the following points in the healiugs: that Section 105.5 does not set a high bar
for "work"6, that it is "obvions that thele are aspects ofconstruction plojects that are supported

51 NORTH PARK STREET, LEBANON, NEW HAMPSHIRE 03766

TEL:603-448-1457 FAX:603-442-6141 WWW.LEBANONNH,GOV cR176
NOTICE OF DECISION
1 River Park Dr (44-21-30 & 44-7)
BCBA2o24-01
May 6,2024
Pase 3 of 3

by oltsite opelations and preparation to perfonl"**, tllat "one day of work every l7t)" would be
sufficietrt to keep the permit active+t, that the City believes that it "must do what the law says
even when it makes no sense,"++ that there are items of wolk thnt could oocur offsite that the City
would accept as work55. The Ciry ftilthermore conceded that Section 105.5 does not putport to
regulate the intensity or pace of work progress***.

10, The Building Ot'ficial testified that the instant case is urrnsual and the only time that he can
rerncmbel expiling a building pemit in this manner. The City's Director of Planning and
Dcvelopment also added that tlre Plaming and Developnent Office must contend with how to
dispense with voluminous nurnbers of permits that nre applied for and never acted upon.

II. RULINGS OF LAW

We make the following rulings of law in this rnatter:

l. The tme intent of Section 105,5 of the Code is prirnarily adrninistrative in nahrre, The BoaLd
finds that this sectiou exists plimarily to dispose of urunerous pennits that ale applied for and
uevet'acted npon, r'ather than to bc an enforcemcnt levcr in ad.judicating active penlit disputes or
regulatiug the pacc of construction. Section 105.5 does not pruport to legulate "not inactive, but
not lcally active enough" activities in conshrrction,

Itis possible that one developer rnay belicve it to be economically advantagcous to hyper-acceleratc
aproject and complete a ploject quickly, paying substantial ovcrlime and expedite fces in doing so.
Conversely, it is possible that a different developel could elect to proceed at a more leisurely pace.
To the exteut that the City is concerned about "slow lolling" plojects or "system garning" and
wishes to enact a policy to regulate construction intensity, this is best ptusued tll'ough legislative
process.

2. Section 202 of lbe IBC ("Definitions") does not define "work." Nonetheless, section 105.5 uses
the terrn "work" tlrrice. See below with emphasis added:

fvsryt penrril issued shall become int,alid unless lhe v'ork on lhe site authorizecl by such permit is
corrrmenced 'lpilhin I80 clqts afler ils issuance, or if the work aulhorized on lhe sile by such permil
is st,rspended or abandonedJbr a pefiod oJ'180 days afler lhe u,ork is commenced.

Wlratevet'"work" happens to be, the Board believes that the tluee instances of "work" within this
sectiou should be read hannoniously with each other'.

The March 24,2023,letter frour the City toYYZ interpretecl the first and t'hird appearances of
"wol'k" when it opined "we agree that yor.r have .justified the lrrenaration rvork vou have been
plepar:ing with your constnlctior partners constibutes commencement of ryork at I Rivel Parlc
Drive irr accordance with City of Lebanon Building Pennit #2016-00293."

51 NORTH PARK STREET, LEBANON, NEW HAMpSHIRE 03766

TEL:603-448-1457 FAX:603-442-6141 WWW.LEBANONNH.cOV
CR177
NOTICE OF DECISION
1 River Park Dr (44-21-30 & 44-71
BCBA2024-01
May 6,2024
Page 4 of 3

As a genelal rule, decisions rnust either adhere to plecedent ol indicate a valid reasoll why a
different lesult is reachecl on essentially the same set of facts. The City's explanatious that it
previously plovided "charitable fieatment" and a "longer leash" to the landowner are not valid
explanations for a differcut resr.rlt on the same facts. Accordingly, rve hold that since "wolk" as
previously found by the City in the Malch 2023 letler includes "prepamtiou work", sirnilar
'oprepalation work" mnst also count as lvol'k in the absence of a valid justification for a different
approach.

3. Furthennore, the Board disagrees with the City's position that, in order to keep a peulit activc,
Section 105.5 mandates \.ery specific physical site activities identical to thosc that required the
original permit. It is coucct that the developer has items in the pro.ject that, individr,rally,lvould
requile perrnits. Holvever, the approved "Description of wolk" in the peLrnit is for thc cnd lcsult
and not the individual, rurburdlcd componcnts. Thc cnd rcsult of the pcnnitted lvorlc is to be a
"Nelv rnixed use colnmercial building." Thc plopcr question is not "did you perfolm a physical
activity on the site that would, if applied for individually, need a pennit" but rather "did you
engage in e ffort, cxeltion or activity to ploduce a nerv rlixed use colnmerciat building on the
site."

The City, sevel'al times in the healings, conceded as rnuch. Despite advocating for its constrained
leading of the code, the City repeatedly conceded that there were multiple off-site activities that
could constihrte "!volk" under section I05.5.

4. If the'hew mixed use cornln€rcial building" on the site would be seen

the project lvas completed
by reasonable person as "a product of effort, exertion or activityfft." Based upon this, the
a
reasonable definition of "!vork" prior to a project's cornpletion would be "effort, exeltion or'
activity dilected to produce or accomplish sornethinglll." In this case, tlte "something" to be
accomplished by the "work on the site authodzed by the perrnit" is the "ner,v mixed use
comnercial building."

XYZ has spent hundrcds of thousands of dollars, cornmitted to spending hurdreds of thorrsands
more, aud retnined at least four'licensed and qualified plofessional service ploviders to protnote
the cornpletion of the described work - all withiu the six-rnonth period preceding the appealed
decision. XYZ has also engaged in inter'-deparhnental aud inter-agency corlxnunication and
activity to advauce its project.

We recognize that the City believes that these activities fall far sltort of an optirnal level of diligence
and intensity, but Section 105.5 does not purport to regulate either diligence or iutensity. We also
lecognize that the City finds the iutelaction with XYZ to be extremely difficult. ){YZnay, in fact,
be pursuing its proiect through antagonistic nnd confi'ontational rneans. If true, that would be
nnforhrnate, but it is also unfortunately outside of the pammeters of Section 105.5 to impose or
develop a policy ou prefen'ed lllalulers of developer-rnunicipal interaction.

The Board finds that the hue intent of Section 105,5 of the code is to require effort, exertion or
activity to accomplish the goal of developing the site. The Cify previously ruled that a rninor
breaking of grourd at the site, possibly perfonnative, was sufficient to satisfy thc rcquilcments of
105.5. "Work" does not necessarily mean that a physical alteration mnst occul at the site$$s. The

51 NORTH PARK STREET, LEBANON, NEW HAMPSHIRE 03766

TEL:603-448-1467 FAX:603-442-614'l WWW.LEBANONNH,GOV cR178
NOTICE OF DECISION
1 River Park Dr (44-21-3A & 44-7)
BCBA2024-01
May 6,2024
Page 5 of 3

efforts, exertions and octivities testified to by XYZ to pursue tbe developrnent of the site nro
substantially in excess of the "low bar" set by the City. Those efforts, including the substantial
expenditure of investrnent capital, advanced the "work authorized on the site", nnd need not have
achrally occtrrred on the land itselfin ordel to qualify undel Section 105.5.

5. Finally, the Board issues two clarifications. First, not every activity identified byXYZ cpralifies
aso'work"pursuanttol05.5, Aleaseproposal toaplospectivetenantfolabuildingthntisnot
yet built is not "wotk" as contenrplated in the IBC. Second, nothing in this ruling dirninishes the
very extensive power of the Building Official to enforce compliance with the Code, as well as
other ordinances and regulations through IBC 2009 Section 105.6.

lll. DEclstoN

Fol all of the reasons set forth above , including but not lirnited our findings of fnst and rulings of law, the
City oflebanonBuilding Code Board of Appeals on this 6th Day of May2024 hereby GRANTS the appeal
ofXYZ Dairy, LLC.

Notice of Decision prepared by: Tiffany Adams, Administrative Secretary, Amay 15,2024

NOTE: (NH RSA 677:2) Within 30 days after any order or decision of the zoning board of adjustment, or any
decision of the local legislative body or a board of appeals in regard to its zoning, the seleclmen, any parly to
the action or proceedings, or any person directly affected thereby may apply for a rehearing in respect to any
matter determlned in the action or proceeding, or covered or lncluded in the order, specifying in the motion for
rehearing the ground therefor; and the board of adjustment, a board of appeals, or the local legislative body,
may grant such rehearing if in its opinion good reason therefor is stated in the motion. This 30-day time
period shall be counted in calendar days beginning with the date following the date upon which the board
voted to approve or disapprove the application in accordance with RSA 21:35; provided however, that if the
moving pady shows that the minutes of the meeting at which such vote was taken, including the written
decision, were not filed within 5 business days after the vote pursuant to RSA 676:3, ll, the person applying
for the rehearing shall have the right to amend the motion for rehearing, including the grounds therefor, within
30 days after the date on which the written decision was actually filed.

/6?-- ltlay 77,2024

51 NORTH PARK STREET, LEBANON, NEW HAMPSHIRE 03766

TEL:603-448-1457 FAX:603-442-6141 WWW.LEBANONNH.GOV cR179
EXHIBIT 19
CITY OF LBI}ANON BUILTIING CODE BOAI{J} OF APPIiALfi
OOCKET #BCFA2O24.$T

LYf\{Ii PROPTITTIES 2, LLC, AGENT FOR XT'Z OAIIIV. LLC

ln Re: Appeal of Administrntivc Decisian *f Buikling Inspector

Rivcr Park
West Lebanonn N*w l{rmpshire

S'I'A"EMINT OF F.,{CI'Ii ANI} LAW

This St*ternen{ qrf facts and Larv is subrnitted on behalf of Lymc Propcrlies 2, [.LC"
dcvclopntent agotl lbr X1'11 Dairy, f,lf,l {together, ttle "Appellant}, the ownsr of 'l'ax Map ,14- l-.ot
21 at ltiver Fark in Wesl Lebnnon, New llampshire (the "Pro;re(y"), in comrection rr.ith its appcal
ol'art adtninistralive decision ul'thr., Lebanon Building Inspec.tor (the "A.ppcal").

All tcstimony, statetncnts, rcprcscntations. evidp:rce. plans* r$pofis. studies, exhibils ancl
othcr inlirrrnatir:n subnritted or to bs suirrnittcd by or on bchalf of thc Appcllant in corurcction
rvith lhe Appcal at or prior ta the publiu hearing on the Application arc. incorporated by ret'erence
hcreto. All testirnony, slatenrerrls, representations. cvidence, plans, rc.ports, studics, exhibits and
other irtlbrmation subnitted by or on behalf uf the Appcllant in corulection with nny prior
proceedirrgs ireti>re tire Building Codc Buard o1'App*als (lhe "Board") with respcct to the Property
{including lJocket #B(:8A2023-01,) cre incorlornted by ref'erence heretn-

The Appellanl requilsts that the lloard approye thts Statunent of ]racts atld Law as thr:
spe*ific firrdings requirecl pursurnt to R$A 676;3, l"

A. Faptual B:rckground.

I. By iluilding lrenni{ da{ed Deoenrber 3 l, 20'l 9 (Pennit #2016-00?93; the '.l3uilding

l)crnrit"). the Alrpcllant rlnas authorizsd to commcnce constructicn r:n a nrixeel uscd commercicl
building on the llroperty* whiclr is Lot 1 in the River Park Subdivision.

2. Following several sxten$ions of the deadline to comurencc conslructiort under-the

Building Permil. tvork under the permit was tirnely commenccd on November 29,202?.

3. ln the r,vinter and *spring ol'?0?3, rvmk was interrupted by tlre liuitdirtg lnspector's
unlarvlirl attcrnpl to impose retroactive sonditions on thcr Building llermit in urcler to keep lhe
permit active.

4. Ihe Building hrspectcrr's actions ncccssitated the Appellant's first appeal to the
Board (Ducket iiDCBA2023-01), seeking clarification as to the status of the Building Permit.x

t l(e f-etettce is specificall-y nradti 1o {hc' Iacts

ol'rhe first appeu}, which suppurr a patten olnristrertrnellt of thc
Appnll*rrt orr the parl ul'thc Building [nspcclor and the Cily's Planning l]eprrdmeni. Fcir cxarnpfc, the Stat'l'
Mcntorandutn reeeived by th* Appellr.inl on Junc:, 2023 farlhs tlrst BCBA lrcnring on .lurrc 5, 202] contained

cR043
 Statcrnent of Facts and Law
l>age 2

5, At its hearing on July 1I,2A23, the Board dismisscd the Appellant's first appeal,
determining that the conrmunication of the Building Inspector from which the appeal was taken
did not constitute an appealable decision. The Board's dismissal effectively constituted a finding
that the Building Permit remained in full lbrce and el'fect, ending an unneoessary and unwarranted
224 delay 1'or the Appellant.

6. Prcmptly foilowing that hearing, the Appellant re-slarted its activities in

lurtherance of the construction work authorized by the Building Permit. As set forth in the material
and other testimony submitled to the Board in connection with this Appeal, these activities
included re-engaging with the Appellant's contractors, architects, engineers and other consultants;
meeting with City officials to coordinate construction etTorts; and taking steps to adequately secure
the construction site.

7. Hand in hand with these activities, the Appellant has been in negotiations for
several months with prospective tenants of the building to obtain leasing commitments which
lulther support the construction cfforts.

8, Ily
mernorandum dated January 5,2024, the Appellant provided an update to the
Building lnspector on thc status of construction, affirming that Englcberth Construction and Elkus
Manfiedi Architects were actively engaged in preparation for the Spring 2024 construction season.

9. At no time since March 24,2A23 has the Building Inspector, or any official of the
l,cbanon Planning l)cpartmcnt, engaged in any meaningful dialogue with the Appellant or
requested further infbrmation from the Appeilant regarding activity on the site related to the
Building Permit.

10.Natwithslanding the lack of any inquiry, by letter dated l?ebruary 1, 2024,the

Building Inspector notified the Appellant of his determination that "the work on the site authorized
by ltuilding Permit #2016-0A293 has bcen suspended or abandoned tbr a period of 180 days.
Consequently, Building Pennit #2Arc-0A293 has expired and is invalid."

1 1. The Building Inspector's decision has, once again, delayed the Appellant's efforts
to mobilize the nunrerous contactors and consultants for the upcoming construction season,
adversely impacted and put at risk the Appellant's leasing activity, and jeopardized the completion
I River Park and the River Park project overall.

numerous errors and false accusations, including that the Building Permit "was allowcd to expire by the Applicanf'
ancl that the Applicant was subject to a Notice of Violation. Neither of rvhich were accurate but imposed additional
financial risk and rcputaiional damagc to the Appellanl.

ln addition to the errors contained rvithin ths June ?, 2U23 Staff Memorafidunr, the Planning Department
fajled to include the Appellant's June 1,2023 Statement of Facts and Law from the Agenda Packet that was
provided to the Board, Appellant, and posted to the Cily of Lebanon Agenda Center for public access. This omission
olia legal filing deprived the Appellant of equal consideration befbrs the Board on June 5, 20?3, contributing to the
continuation ol the hearing lbr a month and further delaying the mafter to the deriment of'the Appellant's business.

CRO44
Statement of Facts and Law
Page 3

12. The Appellant timely filed this appeal of an administrative decision by the Building
Inspeclor on Fcbruary 29,2024.2

13" Since then, in an elfortto mitigate the darnage to the project caused by the Building
lnspector's action, lhe Appellant, through counsel, asked the Building inspector to temporarily
rescind its February 1,2A24 determination. The Building Inspector has refused.

B. Applicable Law and Legal Findings.

14. Fundamentally, this Appeal turns on a question of statutory constnrction,3

specifically the terms of Section 105.5 of the Intemational Building Code of 2018 (the "lBC"),4
which states in full:

"Every permit issued shall become invalid unless the work on the site authorized
by such permit is commenced within 180 days after its issuance, or if the work
authorized on the site by such permit is suspended or abandoned for a period of 180
days after the tirne the work is commenccd. The building official is authorized to
grant, in writing, one or more extensions of time, fbr periods not nrore than 180
days each. The extension shall be requestcd in writing and iustifiable cause
demonstrated

15. No part of the Chapter 36 ol the Lebanon Code of Ordinances, thc Slate Building
Code or the {BC, or any other provision of the City's ordinances, rulcs cr regulations, set forth
specitic standards for what constitutes the "abandonment" or 'ususpension" of *work" under a
building permit.

16. In the absence of specific provisions in the Lebanon Code of Ordinances, the State
I3uilding Code, thc IBC, and any other applicable law, ordinance, code, rule or regulations, the
r.vell-established rules of statutory construction apply. C.f, Trottier v, Lebanon, I l7 N.H. 148, 150
(1977): see also Loughlin, P., 15 New Hampshire Practice, Land Use Planning and Zoning (4tl'
Ed.), $6.01. 'oWords and phrases in [an ordinancel must be given their orclinary meaning unless it
appears hnm the context that a different meaning was intended." Greenland v, Bunker, 118 N.H.
783,785 (i978). "Doubt about the meaning of an ordiriance is determined in accordance with the
inlent of the rnunicipal body that enacted it, and any ambiguity is to be resolved by reference to
tlte apparent object of the plovision." Id. (citing Storms v. Eaton,131 N.H. 50 (1988)^

? Despite muitiple inquiries through counsel, the Appellant failed to receive confirmation of the Appeal's aocepfance
until March 21 ,2024, this de lay deprived the Appellarrt of any op;rorhrnity for a speedy resolution or productive
dialogue with thc City.
I The Building lnspector's decision also in:plicates the Appellant's rights to due process, cqual protection and
{iutdantental tbirness undcr the United States and New llanrpshire Constitutions. 'Ihe Appcllant re$ervgs the right to
ntore fully develop these arguments as this matter proceeds, together with all other riglrts and remedies with respect
thereto.
{ The IBC is incorporated by reference under the Statc Building Code, R.SA ch. 155-A, which is in turn incorporated
by reference pursuant to Chaptcr 36 of the Lebanon Code of Ordinances,

cR045
 Staicmcrrt of Facls ancl l",aw
l'agc 4

17, The plain arrd ordinary mcaning o{'the tsnn "worli" is broad. Acr,rording to mlltiple
dictitrrrarieso iltc term incluries hoth physical and norr-physical efibrts. See, e.g4., merriam-
u,eb$le.r.cornklictianttry/vrorfr (lvork is a "$uslairrcd physical or mental ef?brt to {}vcrcome obsta*les
anri achieve an olrjactive or rcsull.): Bfuck':t l,aw Dictttxrwy il ltt' ed, \tltQ) ftvork is "physical and
n:Ental exertion to atlain an cnd'n).

18, At lea.si one sourt has re lied on similar dictionary definitions ta find that a local
pcrnrit lrad ncl expircd. 5'ee ,{.{arrls {}onununica,lons Cot'p.r,. Cffv otEcs"remer{litl;:l,oning Boarrl
q{Atljustnwnl, 365 N"C, : 52,(20111"i ln tlrat case, t}re lact that the zonilg ndministratcr did nol
observe constructionlilie activities on the sit* was not dispositive, and the North Carulina Supreme
Court fbund that the tem "w$rk" has o'a hroarler rneaning tlran merrl visible svideltce of
constructicn"" !d. at 157.l'he Court further rclied orr the inter:pretative rule that government
restrictions on tlie $se of'land are "construed strictly in tbvor of"the frec use of rsal properly." Id.

19. 'l'his is eonsistent with Nerv I{an'rpshire case law involving the relinquishment r:r
abandonment of per:rnit for thc use ol'real propcrly,In tirosc $ases, there rnust be both an intentiotl
to abandon or relinquish the perniit and arr overt fbilrre to act which c.arries the implication the
lroldcr: of {he permit neitlrer slaims .nor retains any interest in the pe$nit. See Lnvpkn' tt. Tou,n o.{
Sn/un,l16I''i.H. {r1-62 t1976); Pikt: lndustriesr,. Il'*advvaru\.160 N.l{.257,261 (201S}.

?.0. Iiimilarly. in cases involving a developer's vested right to carnplete a pnrjeot, New
Ilarnpshire courts "tend to construe the vesling of rights liberally," AI{IL Pot+'et. Inc. v. {'tly r$
8oc&csrer', 148 N,H. 603, 6tJ6 G00A).

31 , l lere, at no point has the Appella"nt dcn:olrstrated, by any ovefi act or failt:rc to act.
nny intetrtion to stop qlr ahartdein tlie work (as tlrat telrn is properly constr-ued iu accordanc.e with
accepted pinciples of statutory constructrion) thr 1,30 days. Instead, it has at all titncs continuously,
diligently aud in good faith pursued cornplelian nl-the rryork authorieed by the Building Fermit,

?2. Based on the forcgoing* the lluilding lnspecfor's detenlrination that tlie Building
Pernrit has cxpired,is arhitrary, *apricious, eroneous" unreasonabie* and unlawfirl and tlrc Bnilding
Pernrit rernains in full lurce and effuet.

s'l1re paralh;l citrrtion is

?l? S.F. 2d 968.

CRO46
$iatemsnt.of Facts and Law
Fagc 5

The Appellant reser,?€s the right lo amend, modify and sripplement this Statnment of Facts
and Larry,

Respeatfully submitted-
on bohalfof Lymr Frope$ies2; LLC,
development ogeirt for XYZ Dairy, LLC
By Cleveland, Wakrs md Bass, P.A.

Date: March lL,ZtZ*

'fwo Capfitat Fle?a, go
Coneoriln NH S3902' I I 3?
ltslephone ; t603)224-7 7 6l
Emai} [email protected]

4871-rS46't8S& v.2

CRO47
EXHIBIT 20
 !i't'
CITY OT LESAFTO$I
AFPTTCATTOIT FOR

SFECIAL EXCEFTION il {1 $tTE PIAN REVIfW

VAflIANCE rl i:i suBDlvlsrufil
FTOTIEil FOR RTHTARING i] $ LOT LTNE ADIUSTMEf*]r

APPEAL TIF AII AT}INIil, AfCISISN X ii oTHEe { )

PRGF€*TY OWT'ICR (APPLICAT'lTlr

NAMEI XYZ Fairy, LLC TEL,#: {603} 676-7800

MAtLItt* ADDRESS:57 $'ilain $treet, West Lebanon, NFI 03784
E-MAI1_ ADDRE$Sr dclem @lymaproporties.com

cs-ApptxcANT, AGENT, oR LESSEE:

NAMF: Lynre Properlies 2, LLC rf;t",#; {603} 676-7106
MAILIflJc ADDRESS:57 l"'lain Street, west Lebanon , NH 03794
E-FlAlL ADORESS: chet@lymeproperiies, com

PROJF{T LOCATISNT
TAX MAP#; 44 LAT#r ?1 PIOT 8 r ZoNE: CBO
srREEr ADoREss oF pRolrcr; 1 ftiver Parlt Drive, West Lebanon
IS ?I'II5 PROPERTY LOCATED IIJ TIJE: WETI.AI{DS fiYEs XNO HISTORIC trISTRICT *YES X lr(}
fTOOD PLAIH ilYES XHO
SCCPE OF FRS.IECT:
Phase 1 of fiiver Park, 64,S00 SF Mixed-Use Building" Lebanon Buifding Parmit #2016-00293

TYFE OF OECUPAHCYI
EXISTING X VACANT u ONI FAMILY n TWO fAMILY :] IVIUITJ.FAMILY fi COIV]NERCIAI. iI INDUS?.R]AL
PROPOSED n VACAil'l :}$Nf FAMII-Y u TWo FAMILY i.: MI"ILIi.FAMILY X COI'11'1ERCL{L r INDUS?RIAI,

IF USE !S COi,|MER{IAI OR XNOU$?RIA|_, pt_EASE tiorE gpF-gIfI$ 1,15s. l-ife Scienue.Researglt_o"lf:"gq, Cfltd,qgg, Rglair _ .'

SIGHATTIRE BI"OCKT

PROPERTY

NCTE: IFfAs YCUWISH TS D€SIGNATE tN ACENT TS ACT ON YOUR 8Et{ALFr PTEASE REAS TttF fOLIOU/ING
AND SIGN BELOW: I dqslgnate the permn listed abover as tny aqent For the prrpcls€ of proeurlng th€ necfssary lccal permits
for the as herein. made by my agent may br acceptcd 6s thougb made by me pe.sdrnatiyr and
I und*rrtand made oR tfie basis of such lepresentation.

EATE *ECEIVfD FtrE tr turrF/tot! APiuc^TtOtit t tEE ..

t AHOtTHI DI.TI SAID 90ucltrn t
2,t,4 !ZL.l

CROOT
 CITY OF LEFANON, HEttlI HAMPSHIRE
SUFPORT STATEI{ENT FOR,
AN APPEAL OF AN ADMINISTRATIVE DECI5ION

A cover application, abutters fist, filing fee and ten copies of the site plan (lf
appllcable) musl accompany th's support statement,

$i-tv*ef Aebane1l-z_qpiry O1g|t-n-An€e: ,r ,

APPEALST

801.1 Admini Apneals.

To hear arrd decide appeals where it is alleged there is error in any order, requirernent, rlncision,
or deternination made by any adminlstrative official in the enforcement oi this ordinance, as set
forth in RSA 676:5, ln exercising this power', the Soard ffiay reverse or affirnr, wholly or partly, or
may modify the order, requirernent, decision, or determhration appealed frsm and may rnake such
order or dccision as ought to [:c madc, and to that *nd shall hsve ell powers of the officer from
whom the appealis takerr.

.An appeal underthis soctier ehall be taken within 30 days of the date cf the adminlstralive
dscisian being appealed- or within 30 clays of the tine that the person filing the appeat know or
had reason to know that the adrninistrative decision had been made, The effect of an appeal shalf
be as set forlh in RSA 676:6"

802,4 Decisions qf the Baard.

ln exercising i{s powers the Board rnay reverse or affirm, wholly or in part- or rnay rnodify
the order, requirernent, deoision, or deterrnination appealed from artd rnay rnake suctr
nrder, or decision as ought lo be made and, lo that end" shall have all the power$ of the
adrninistrative officialfrcm whom the appealis laken.

A, f\{aipdy Vnte: The cencurring vote of 3 members of the Eoard sfrall be n€c6s$ary
to revarse any aclion of the administrative offioial or io decide in favor of the
applicant sr any rnatter on which il is required to pass.

I am appeating the decision of: Calvin F{unnewell, Br.rilding Inspector

(Name/Titie of Oificial)
rnade on this date; February 1,2A24

{Please describe the decision you are aggrieved by in the spac€ provided ar attach a
separafe sfafemenf.j

Concernin$: Delermination that 1 River Park Drive tsuildin g Permit #2016-00293 has

expired and been deemed invalid related to case BCBA 2023-i

In Relatlon to Article(s):__, Seclion(s]; of the

City cf Lebanon Zoning Ordlnance.

cR008
s: \aZA!Z{)fil!\I;lCARMEt Ai,}6r\1.t Oa$s\?sA o0plicntrnn prcke i:\AdttJ I ;nfi{il\{^tr 5UPfOR'r.w}d
 q{ivqr",llol$
February 29,2A24

Huilding Code Soard o{ Appeafs

City o{ Lebarrnrl
5l N Park Street
Lebanon, f{H 03766

Re; Appeal of Adrninistrativs Decisi*n; Building lnspectcr's February 1,2024 determination

"BuildinE Permit #t016-S0e93 has *xpired and is invalid."

Mernbers o{ tl"re Building Code Soard of A.ppeals,

Lyme Properties (Lyme] serves as tlre develcpment agent on belralf o{ XYZ Dairy" Ll-C (XYZ}, the
o'#ner of reeord e{ the River Park West Lebanon development. lVe are hereby appealing the
Felrruary 1,2A24 decision nf LeL:anorr Building lnspector Calvin Hunrrewell il the Lebarrcn Planning
& Developrnent Departm€nt:

It is nrydeterfnination that the ulork on the sile autharized by Building Perrnit #2016-00293 has
been suspended or abandonsd for a period ol greater than 180 days. Conseqt:ently, Building
Permil #201S.0029S has expired anrl is invalid,

{xrerpt .lr "$r.pdrufr*n at 1 lliv|r P'stl' tlrtve 8*itdlnq Iterrtit ttt}tr6-0t2*J, " ftly {]l tr* afioa - F1'annirtg & ilev*fopment aflice"
F*lsrt;ary 1, 2tJ24, ft*Sr 1 $ 4"

Since'tlre July cletermination during the Building Cr:iJe Board o{ Appeals case BCBA2023-
1 1 ,2Q23

0? {BCEA20?3-A1| that Building Perrnit f20'16-002?3 {the "Fermit"} was af,tiv€ and in effecr-
cr:rrecting the June, 2,2A?3 Strff Menrctilat declared it expirecl- XYZ and Lyrne lrave beerr
wcrking to re-start the variaus cantracts that vrere affected by the Staff's Eetions from December 9,
2422rc July'11 ,z}n.
This includes th6 numerous consultants a.nd contractors that constitute the 1 River Patk proJect tearTl
under the directiotr oi Elkus Manfredi Architects and Engelbefih Construction, whiclr were re-
engaged on July 31 , 2023 (attached) a*d as memorl*lized in cur Jarruary 5,2Q24 memo {attached}
to Lebarrorl tsuilding fnspectar Calvin Hunnewsll.

The development work on the Fermit was done in conjunction with re.starting leasing conversations
tfiat rr*ere susper:ded by tlre Staff's actions i* 2A23, coriversations thal have nov* been jecpardized
again by the Sta{fs February I , 2A24 menro.

The record reflects th*t not cnly has the re never been a t 80-day suspensio* of work as Section
105.5 of the lnternationaf Building Code dictates, but that any de{ays are due to the previous
dctians ol thc Lcbanon Planrring & Developnrcnt c,cpartment.

'.i; i,:r{./:. i., i},,'r.l I ,rtir 'lt,i,tl:r(},-r,1( r {;..1,"r . ta:r.1.;,.i rr'.,t, .}o}1 r:,:ii
z':,11;t,.11t1.1 i)/ti itli.lti r..:i ,:ril.l iirn jttt{: I l.,,ull ",.irit:ijit..,:,i1.:rt|:-:,'.t.1:,tt,|i,.i,,:,rat.rrri
"
,,:i,...i;: . r? i_iii,i.+ nr.t.,:!1. <, tr.:,r.ri::1..i : ::ri,i!.
CROO9
 q Qiv*r Perrk
.,,,:rr
lr'rri:.,: I ,:!-, iit i

Itis <Jisingenilous thal this permit be revoked given what haE transplred over the past 14 morrth:,
Mr. F{unnewellwas n*t in attendance at the BCBA hearing on July X1,2023. Neither the Building
lnspector, the Plannirrg Director, or the Deputy Planrirrg Direetor have cbnrntt4fliea\d8:<Jirectly witlr
XYZ sr Lyrne abo'.rt this Perrnit in any rnaterial way nince.

XYlLyme are pt€pared to address and refute tlre Euifding lnspector's February 1 ,2024 decision as
it r*:lates t* Buildang Permit #2016-*0??3 and the Conditions of Approval as included uporr
issuance on Decemt:er 2?, 2019.

Prir:r to the Aprll 1 ,2A2.4 hearing, the Eoard o{,Appeals slrould be aware that the canditions on
Fage 4 oi 4 in the February 1 ,2024 memo fmm Mr. Hunnewell are incorrect, unrelatec{, arrd ultr*
vires and thus irrelevant to the Fernrit and this Appeal.

These condi'tions inappropriately lncludeci in this matter by the Euitding lnspeeror are relared to the
Fhase 1 lnfrastructure improvements spelled out in the River Park $ubdivision and Sit* Pl*n
Apprnval* {the "Approvals"}, which ere separate and distinct fr,:rn Building Fermit #2016-00293.

I also rtots that there hu€ be6n no cffar( to addrcss Lhc itsms idenlifl€d ln :ny letter of March ?4,
20?3, as needing to be complotgd priar tc lhe re,sunrptlon of constructifin ;cltuiiles (anct vrhlclr
sh<luld h*vo bc6n complelertr prior ls the commencement of anyconstructlon], These lnclude:

. Pmvldkts a cosl etthnate of retnahdng Phese I lnfraslnrclure iilprovefirer.rts for rr:view lry
tho City Englneer'- ancl pruviding security {or such and enterlng lnto a new performance
BondIS6curity Agreenront.

. prnvlding a c,rlrrslruction sctreelulo to the fiity Hngineer

for Burposes cf retaining a thirrl-
party lnspectcr, providing peym€nt sf estimstorl thlrd pafty rovlcw co$ts, arul cRlerlng into
a lhird p*rtry inspeclion and waler & rewer extefislorl agr-aomont,

. lnstalllng edge-of-disturb*nce fencing on *ite to be feviewed bv the City Englneer.

. Cotrflrntlrtg lhat {ilf $t{rte perrntlts have hee$ gbt*insd or hnve been updaie<!, as needed.

To iny knov*tedge. none cf the above have been accornplished es of lhe date of lhis lelter-

Err{:.ijr ?.' '?rgri.olnrn a/ I fr.ixer Furk l}riv* Suiklfn;1 Ferrnit tt2$1&-A0291," {iiy $l ltbltnun . Planni4il'&
ileveks$nt.:e t {.}ft'it:v" !'y!xruny l. t2t}, FurF: it o! 4"
The first two bulfet itens are specifimtty referenced in the $ubdivlsiun Approvals (orfginally
Condition #1 5 in tlre Qctober 11 ,2A11 Noiice o{ Action}* the Decenrb*r 15, 2017 Subdivision
Agreement{Sectiotrc D.1, G,1.1}, and tlrc Septernber 9,201* Notice a{Action {Conditions 4,5J.
There is no deadline given, no timeline tied to the Building Pernrii, and no practical readirrg that
tltis rnust be campleted belore the cornrnencemenl of the Building. Simply put, these are net
conditions precedent tc, the B*ildirig P*rmit,

The EJeadlille for th..: comme flce nrent and completion of the remaining Fhase $ ln{rastrue ture is
otherwise unrelated to the &uilding Ferrnit in qu*stion. The deadline for corr:pletion is establisi,ecl

t-'i4 l.|t,,..t I Li l-)r,..,,:':l+r:ilri i:il i.ili!"ir iiti:rl:;,'ii,,r:s lj,t fit,:tit ';rrtitl. ;rjt::;! l.lrl:;ii:r:r, tlll *"lliJ4 7
i.i.,.r. .r{':, i; ;tt:i} , ,.. i,;,:r, ., itl-. r t.tr.,rr 1, 1'.,.,.g.r,i;:.,i;ti i..yrrqr.1,;.i,.,
'
;t:::u{i.r 4r. r i,: rt &rr_ , F r,1, t :i;:}rf }tr1::i.dr..
CROI O
 qF{iv*i Pffk gil|l I It:'4 j

by Condition 14-2 of the Septenrber ?* 20'19 Notice of l\ction- arrd as wds cxrondcd [iy twr: ycaru irr
the October 12,2021 lrjotice of Action"

Eullet #3, insonn';ch as it relates to the work entitled under the Building Pern:itancl not the
uur*lated infrastructure work, rrurll be irrstailed by the Construction Manager in dre co*rse.

Bullet#4isadrlressedinCondition 14-4d theSepternherg,29lg Notic*of Actiorr,wherein itis

ctot*d thal these re*uirements have been satis{ied, and the Cily has [:een kept aware oithe status
and any reqttisite extensions of #AoT-0994 and fD201$-0S02 throughout the nurnerous delays aird
prcject suspensicns.

Tl'rere is sn important distinctinn helv;een the infrastructure work servirrg the entire phased
development and the conditians relevant to $e Permlt, whielr has been eomrlrunicated nunl*rous
times previously tc th* l"eba*orl Plarrnirrg & CIeveloprnent Departunentl

1, irt a fierlto {r<;rn Lyrne crn March 7,2A23 ic relpc.rnse tc the Depafirnent's February 15, 2023
m*mo;
2. in persorr at the meeting l:etween Lynre and the Departmeaton March 16,2023;
3. in the-, Aprif 1A,2023 email fron"l Lyme in respor:se to the Merch 24,20A3 cornrnunicatiorr
{rom the Departrnent in whielr th* erronear.rs conditions \ /ere repeated;
4. in the .iune 1, 2023 "Stalement of Facts ancl Larvu {rom Attorney Plrilip Hastirrgs r.n behal{
al XVZ and Lyrne;
5. in the June 19,2023 "Strpplemental Statement of Facts and Law" from Attorney Philip
Hastings on [:eh*l{ of XVZ and Lyrne;
6. and, in the August 3,2023 rn€mo from Lyrne andXYZto the Department.

Put sinnpiy, there is na requirement that these items be cornpleted prior to comrnencement o,f work
on the Permit. ,4,s sr.rc[I, the Building lilspectsr's suggestion in the Febru ary 1 ,2024 communication
that "drere has been no effort to address these iterns" by XYZ and Lyme is disingenucus and sen/es
orrfy to confuse matters and cast doubt upon Lyrne and XYZ's effr:rts.

Attorney Fhilip Hastings ,.lune | | 2A23 "Statetnent of Facts and Law" and June 1?, 2023
"Strppferrrerttaf Statenrent r:f Facts and Lar.,r" prepared {cr the SCBA2023-01 are attached for
re{erence by the Board and constitr.rte XYZLyme's position on the previolrs altempts o{ the
Building lnspectorrto apply these additional conditons- and rnore- to an already issued perunit.

lVe request that this ffatter be included on the agenda for the April 1, 2024 regulariy schedulerl
hearirtg o{ thc Lel:anon Zr:rring Baard of Appeal#Building Code B*ard of Appeals so that
resoiution may be reaelred ac seon as possible without {urther" delay, ccrst, anrJ finaneial risf< ta
XYZlLyme and associated parties,

This appeal is being filed in accordance vrith Article lll, Section 36-13 Bui{ding Cotle Boar<j of
Appeals, and XYZ Dairy, LLC and Lyrne Properties 2, LLC reserve all rights to amend, modi{y, and
supplement this appea l,

'.ri.:i.-r,r,r:..; i11r,r.-rll.)i:iir!ii-.vl.lr,t,,rirlJrjl:iir;,:. i:,'li.r':r'1'..l ;,.,r',r.,,'1,'il 1fii,i 3

ir];r::,rij .)r.ll;,r:f iijti{) t'r)t': r-,D,r, ,'.1 ",.1
,':'r'.,r,:r r:;.r1..,!i.,, ,iir,ii
":,'t.i<;:I.ii;i!,.'
CROl 1
 Kiver Park Wr:rl l..ri r,;r l;,r r. r:jl I
l.{Alr r f{}i,l

Sincerely,

ct*w
Chet Clem David Clem
Presic{ent, Lynre Fropertles 2, LLC Manager, XYZ Daiqy, LLC

Attached:
312412023: lvrtemo frorn City with ultl:a yires conditions
*l1l2A?3: Stetement of Facts and Law, Attcrney Philip Harting*
il1?/2A23: Supplementaf $tatement sf Facts and Law, Attorney Philip Hastings
7fiIftA23: Ennailto Project Team about re-comryisncement following 7/1I/23 hear.ing
8ft/2}23t Memo from Lyme to Buifding lnspector re: teftporary connection
1!5/2fr24; Merno frorn Lyme to Buitding lnspect<rr re: update on work underway
U 1 /2A24t Cover letter ina attach ments) frrorn E*tlding lnspector to Lyme

fC:
Shaun lidullholland, Cig Manager
David Brssks, Deputy City Manager
Nathan Reichert, Planning & Developrnent Director
Tim Corwin, FepuhT Planning & Development Sirectar
Fhilip Ha*tinosu Esq", Cfeveland, Waters and Has*

.riY:il.]r*?1-1..1. il'lq':rk:F:r";rJlryl.,y*rr,ri:r*l;rlrir€*. I]l,{l,iriil'eu:f,,lleltl.'.Ji.j;lr*t), 1.lii*l;lj,! {

f lr{'r1i: d:i1.3 {:7S :i*Sr: i i-€xr +il.; rr?(1.1{l;r: * {*1;11; ,*[i:iFrt.rqir:arL:,ir* jrJ+i]a ji*{! r.rrr}

it14)i3 gfi t t a ntl l.€n! it D rrn.i :, !r,r: lli. r...^ d\1

cR012
 CERTIFIED NOTIFICATION IIST

Nntice shall be sent by certifled rnail to the Owner; Applicant, if different from Ownerl Alrutters; Holders of
conservation, preservation, or agricultural preservatian restriciions {as defined under R$A 477:a$) on the subject
property; the holders of eaeements, rights-of-way, and other restrictions; and every engineer. architect, tand
surveyori or soil or wetlands scientisl whose seal appears or1 any pfan subnritted to the Board; and any olher
persons requir"ed by RSA 676:4, l{d). The names and maiting addresses shall be furnished by the Applicant,

672:3 Abutter. * "Abult€r" meanc any person whose propedy is located in New Harnpshire and adjoins cr is
clireclly across the street or stream from t[re land under c0[$i{ieration by the lqcaN land use board. For purposes
of receiving t*stirncny only, and not for purposes of notification, the term "ab*tter" shall include any person who
is able lo demonatrate that his land will be directly aiJected by the proposal under consideration, For purpo$es
of receipt of notification by a rnunic.ipality of a local land use board hearing, in the case of an abuiting property
being under a condominium or other collective form af ownership, the term abutter means the CIfficers of the
collective or association, as defined in RSA 356-B:3, XXlll. For purpoees of receipt of notification by a
municipality cf a lscal land use board hearing, in the case of an abutting property being under a n'lanuia*tr.rred
housing park form of ownership as deflned in R$A 205-4:1, ll, the term "abutter" includes the manr.lfactured
housing park owner and the tenants who own manufactured housirrg which adjoins or is directly across ihe street
or sireann frsm the land under considaratlcn by the local land use board.
Eource. 'f 983,447:1, 1986, 33;2. 2002, ?1S:1, eff" July 15,200?.

FIEASE FRG\TItrE NAMFS & MAILING ADNRESSES FfiR ALL FERSONS LISTED ABOVE.

Map & LoJ Number:44-21 Map & La-t ltlumber:44-21

Froperty Owner; Applicant, Oo"Applicant, Agent. or Lessee:

XYZ PAIRY LLC LYME PROPERTIFS
57 MAIN $T 57 MAIN $T
WEST LEBANON. I.'H 03784 WEST LTBANON, NH 03784

Map & Lot Number: 58*27,44-22 - 44-30 & 44-7 Map & Lst Nurnber: Sg-18
XYZ DAIRY LLC STENG ER-GRAFT FROPERTIES I-LG
57 MAIN $T 112 N MAIN $T
WFST LESANON, NH 03784 WEST LEBANON, NH 03784

Map & Lst Number: 58-93 Map & l-ol f-,lumber: SB-97 & 44-g
CUMMINGS, L,4UREN H & SANDRA L CAESil LLC
56 CRAFTS AVE 57 MAIN ST
VfEST LEBANCIN, NH il3?84 WE$T LEBANON, NH 03784

cR041
Map & Lot Number: 44-6 Map & Lot Nurtiber; 44-14
193 NM\fiff_, Ll-C BURNS, TRACY A & SALLY J
FO gOX 1$7 198 NORTH IdAIN ST
csNcoRD, NH 03302 WEST LTBANON, NH 03734
:"

Map & l*ot Number: 44-15 & 44''19 Map & Lnt Nurnben 58-9S
CHURCHILL, WAYNE 8. TINA M OITY OF LEHANON
f 94 NORTT-| MAr{ $T 51 NORTH PARK ST
WE$T LFBANCIN, N}.I 03784 LEBAIi'lOl!, NH 03766

Map & Lot Numben 44-4 Map & Lot Nurnber:44-3

$ALAZAR.K}SH, JOLIN f\4 TTFE FRIEND$ OF RIVER PARK
32 LEBANCIN ST, STE A 57 MAIN STREET
l{ANovER, NH 037s5 WEST LEBANON, NH 03784

LotNumber: 44-5
Map & Map & I-ot Number; 44-10
DOWNTS, ROBIN C TT€E DVG VtrNTURE$ LLC
187 NORTH MAIN ST 10 BTNNING $T#160-255
VfEST LEBANON, hIH 03?84 WEST LEBANON, NH 03784

Map & Lot Numben 44-13 Map & Lot Number: 5&91
DARTMOUTI-I COi-LEGE TRUSTEEE JONE$, BECKY F TTEE
PO BOX 5188 67 CRAFTS AVE
HANOVER, NIJ CI3755 WEST LEFANON, NH S3784

Map & Lot Number: 44-19-5600 F,l{ap & Lot Number:44-19-5700

FALLS AT RIVER$ EDGE HCA FIOMFOVUNERS AT THH FALLS
PO BOX 1051 ATTN: DAN CHASE, COMM MGR
NORWICH, w 05055 P0 BOX 1051
NORWICH, VT 05055

Map & Lct Numher: il*lap & Lot Humber;

{Revised 2tstt02{}

CRO42
EXHIBIT 2L
 1

Matthew C. Decker
DfUfnmgild,ri"1 ri:', Ijiil ,u
Admittod in NH, tlJ, NY
603,792,7421
[email protected]

ATTORNEYS AT TAW
1 Court Street, Suite 320
Lebanon, NH 03766"1727
603,448.2221 Main
603.4{8.5949 Fax

June 5. 2024

Via Hand f)elivery and Electronie ll{ail

NH State Building Code Revierv Board

c1o Roxie Beall, Administrative Supervisor
NH State Fir:e Marshal's Office
f)epartlnent of Safety
110 Smokey Bear Blvd
Concord, NH 03301
B I [email protected] v

RE: Appeal of Lebanon Building Code Board of Appeals Decision

Dear Ms. Beall.

My finn represents the building inspector in Lebanon, NIl. Pursuant to RSA 674:34,11,
RSA 155-A:10. IV(e), RSA 155-A: I l-b and the Nl{ State ISuilding Cocle Review Board
administralive rules, Bcr 200, I am enclosing an origirral and I 6 copies of a Notice of'Appeal and
Petition sceking the State Building Code Review Board's reviel o{ a decision of the local
Lebanon lSuilding Code Board of Appeals (tlCBA).

The written decision that is tlie subicct of the building inspector's appeal, adopted by the
Lebanon IICBA al a meeting on May 6, is attached to the Petition as Attachment A.

I arn hand delivering these documents to I 10 Smokey Bear lllvd. on your instruction that
nobody is physically present at 33 llazen Rtiad to receive hand delivery.

Plcase do not hesitale to contact my office with any questions or concefils. I anr grateful
fi>r your assistance in this matter.

Sincerely

/{/r#h{
Matthew C. Decker
s*A
Enc]osures

LTC:: Lebanon City Manager (e-mail only)

Lebanon Building Inspector (e-mail only)
Lebanon Building Code Board of'Appcals,
c/o Lebanon Planning & Developrnent Director N. Reichert
Philip l{astings, Esq. (e-rnail only)

800.727.1941 | <irvrrilaa.*txr
 State of New Hampshire
State Building Code Review Board

APPBAL OF CITY OF LEBANON'S

BUILDING CODE BOARD OF APPEALS DECISION
Pursuant to RSA 674234,II, RSA 155-A:10,IV(e), and RSA 155-4:11-b

Docket #

(In Re: Appeal of Administrative Decision of Building Inspector

by Lyme Properties, 2,LLC, Agent forXYZ Dairy, LLC
River Park Development
West Lebanon, New Harnpshire)

NOTICE OF APPEAL / PETITION

Now comes the Building Inspector for the City of Lebanon, NH, by and through his
attorneys, Drummond Woodsum & MacMahon, and hereby appeals a decision of the Lebanon
Building Code Board of Appeals, reversing the Building Inspector's administrative
determination under 2009International Building Code $105.5 that a building permit had become
invalid because the work authorized on the site by such permit was suspended for a period of
more than 180 days after the time the work was commenced. In support of his appeal, the
Building Inspector alleges as follows:

Introduction

l.This appeal concerns the conect interpretation of Section 105.5 of the 2009
International Building Code (lBC), as adopted by the New Hampshire legislature as the state
building code under RSA 155-A for the time period relevant to this appeal.r

2. On February 1,2024, the Building Inspector issued to property owner XYZ

Dairy, LLC ("XYZ") a written notice that building permit #2016-00293 pertaining toXYZ's
property at I River Park Drive (Tax Map 44,Lot21)had expired and is deemed to be invalid due
to a period of inactivity at the site in excess of 180 days prior to February 1 pursuant to 2009 IBC
$ 10s.s.

3.2009IBC $105.5 (Expiration) provides, in relevant paft,that "[e]very permit

issued shall become invalid... if the work authorized on the site by such permit is
suspended or abandoned for a period of 180 days after the time the work is commenced".

4.
XYZ appealed the Building Inspector's decision to the Lebanon Building Code
Board of Appeals (BCBA). XYZ did not materially contest that physicalwork on the site had
been suspended for a period of more than 180 days, but argued that it had been making off-site

I The text of 2009 IBC Section 1 05.5 is identical to Section 105.5 in the 201 8 IBC, the currently-effective velsion of
the state building code pel RSA 155-A:1, IV.
preparations that it had vaguely described in a January 5,2024 letter to the Building Inspector as
"working toward the Spring, 2024 construction season".

5.On May 6,2024, the BCBA issued a decision reversing the Building Inspector's
determination that the building permit had expired. A copy of the BCBA's written decision is
attached hereto as Attachment A.

6. The Building Inspector is hereby appealing the BCBA's decision because, inter
alia, the BCBA incorrectly interpreted the term "work authorized on site by such [building]
permit" in IBC $105.5, and improperly ruled that conclusory evidence of unspecified off-site
"efforts" related to the development, not submitted to the Building Inspector before February l,
was sufficient to establish that work authorized on site by the building permit had not been
suspended for 180+ days and, therefore, the building permit had not expired.

Parties

7. The Building Inspector a/k/a Building Official alklaCodelHealth Inspector is the

City official given authority under RSA 676:ll and Lebanon City Code Ch. 36, $36-l(C), "to
issue building permits as provided in RSA 676:ll-13, and any required certificates of use and
occupancy, and to perform inspections as may be necessary to assure compliance with the State
Building Code". At the time of the BCBA decision that is the subject of this appeal, the Building
Inspector was Calvin Hunnewell. The current Building Inspector, advancing this appeal in Mr.
Hunnewell's stead, is Leigh Hays. The Building Inspector's mailing address is City Hall, 51 N.
Park Street, Lebanon NH 03766.

8.
The appellee is the Lebanon Building Code of Appeals. Lebanon City Code Ch.
36, 536-13(A) designates the Lebanon Zoning Board of Adjustment to act as the Building Code
Board of Appeals per RSA 673:1. The BCBA's mailing address is City Hall, c/o Planning &
Development Dept., 5l N. Park Street, Lebanon NH 03766.

9. The property owner/building permitee before the BCBA was XYZ Dairy, LLC,
c/oLyme Propefties, 57 Main Street, West Lebanon, NH 03784. XYZ is represented by
Attorney Philip M. Hastings of Cleveland, Waters and Bass, P.A., Two Capital Plaza,5th Floor,
Concord, NH 03302-1137 . It is anticipated thatXYZ will seek to intervene in this appeal.

Jurisdiction and Venue

10.The NH State Building Code Review Board has jurisdiction over this appeal and
is the proper venue for this appeal pursuant to RSA 674:34,II, RSA 155-A:10, IV(e), and
RSA 155-A:l I -b, because this appeal concerns a dispute over the correct interpretation of IBC
$ l0s.s.

I l. RSA 674:34, II provides: "Appeals of decisions of any local building code board
of appeals shall be made within 30 days of the board's decision to the state building code review
board as outlined under RSA I 55-A:10, IV(c)."

12.
RSA 155-A:10,lY(e)fformerly IV(c)l provides: "The [state building code
review] board may hear appeals of finaldecisions of any localbuilding code board of appeals

2
established under RSA 674, provided that the appeal shall be based on a claim that the intent of
the code or the rules legally adopted thereunder have been incorrectly interpreted, the provisions
of the code do not fully apply, or there is an alternative construction. The board shall not have
authorify to waive or grant variances to requirements of the code."

13. RSA 155-A:11-b, I and II, provide: "I. The board shall hear appeals of final
decisions of any local building code board of appeals established under RSA 674. IL An
application for appeal shall be based on a claim that the intent of the code or the rules legally
adopted thereunder have been incorrectly interpreted, the provisions of the code do not fully
apply, or an alternative construction is proposed. The board shall not have authority to waive or
grantvariances to requirements of the code."

Procedural Background

14. The Building Inspector issued toXYZ a building permit #2016-00293 (the
"Permit") on December 31,2019. The Permit was for the construction of a new mixed-use
commercial building atXYZs property referenced above, alVaLot # I at the so-called River
Park subdivision.

15. Due to the date of application for the Permit, the parties agreed that it is governed
by the 2009 version of the International Building Code.

16. On February 1,2024, the Building Inspector issued toXYZ a notice that the
Permit had expired under 2009 IBC $105.5, upon his determination that the work on the site
authorized by the Permit was suspended or abandoned for a period of greater than 180 days.

17. XYZ appealed the Building Inspector's February I notice to the BCBA. After a
public hearing held on April 1 and April 18,2024, the BCBA issued a written decision on May
6,2024 (Attachment A) reversing the Building Inspector's decision.

18. This appeal of the BCBA final decision is being filed within 30 days of the final
decision per RSA 674:34.

Facts Common to All Counts

19. Permit #2016-00293 was issued to XYZ on Decemb er 3l ,2019

20. The Building Inspector granted XYZ a number of extensions to its 180-day
deadline to commence work on the site authorized by the permit, per IBC $105.5.

21. XYZ commenced work on the site authorized by the permit on November 29,
2022, when XY Z began excavation within the bu i ldi ng footprint.

22. XYZ stopped work on the site on November 29,2022, when it encountered a
stormwater pipe, the relocation of which was included in XYZ's approved plans for the River
Park development.

J
 23. Between November 29,2022 and February 1,2024, no further work authorized
by the permit was performed on the site.

24. Between November 29,2022 and February 1,2024,XY2 did not request any
extension of time from the Building Inspector, as allowed under IBC $105.5.

25. The Building Inspector issued XYZ a notice of expiration of the Permit pursuant
to IBC 5$105.5 on February 1,2024.

26. At the April 1 and April 18 public hearing on XYZ's appeal to the BCBA, the
Building Inspector asserted through counsel that his intent in declaring the Permit expired was
not to "kill" the project, but rather that he assumed XYZ would apply for a new permit when it
was ready to proceed with construction,XYZs prior permit fees would be applied to the new
permit, and that the new permit would be issued under the current (2018) IBC rather than the
two-versions-old 2009 IBC, simplifuing the task of constructing and inspecting the project in
accord with the current version of the code rather than in accordance with an outdated code
version.

27. At the April I and April 18 public hearing on XYZ's appeal to the BCBA,XYZ
did not assert that any physical work had been performed on the Lot #l construction site in the
I 80 days prior to February 1,2024, nor did XYZ assert that the Building Inspector had failed to
observe such work.

28. At the April 1 and April l8 public hearing, XYZ submitted brief testimony and a
short affidavit in support of its allegation that it had incurred off-site costs and entered into
contractual obligations relating to future development of the site.

29. XYZ did not present evidence or argument supporting a conclusion that the acts
to incur off-site costs, or enter into contractual obligations, could only occur pursuant to an
active building permit. In other words, these acts were not "authorized by" the Permit under the
meaning of IBC $105.5.

30. Prior to the public hearing, the Building Inspector was not aware of the costs and
contractual obligations allegedly incurred by XYZ, andXYZ did not asseft at the hearing that the
Building Inspector was aware or had notice of such prior to February 1 .

31. The Building Inspector's counsel was not permitted to cross-examine XYZ's
representatives concerning their proffered evidence for off-site preparations.

COUNT I:
The BCBA Incorrectly Interpreted 2009 IBC Section 105.5

32. The Building Inspector repeats and realleges each foregoing paragraph as if fully
set forth here.

aa
JJ. The entire text of 2009 (and 2018) International Building Code Section 105.5 is as
follows:

4
 105.5 Expiration. Every permit issued shall become invalid unless the work on
the site authorized by such permit is commenced within 180 days after its
issuance, or if the work authorized on the site by such permit is suspended or
abandoned for a period of 180 days after the time the work is commenced. The
building official is authorized to grant, in writing, one or more extensions of time,
for periods not more than 180 days each. The extension shallbe requested in
writing and justifiable cause demonstrated.

34. The tenn "work" or "work authorized on the site by such permit" is not defined in
the IBC.

35. Per IBC $201.4, "[w]here terms are not defined through the methods authorized
by this section [201], such terms shall have ordinarily accepted meanings such as context
implies."

36. Where a term or phrase is clear and unambiguous, its plain meaning must be
applied without inquiry as to whether a different meaning may have been intended.

37 . The BCBA incorrectly interpreted the meaning of 2009 IBC $ 1 05.5 by

substituting the clear, unambiguous and plain meaning of the phrase "work authorized on the site
by such permit" with the BCBA's own interpretation of the word "work".

38. Alternatively, even if, arguendo, the phrase "work authorized on the site by such
permit" is ambiguous and subject to legal interpretation, the BCBA also incorrectly interpreted
the meaning of "work" when it did not weigh the modif ing words "authorized on the site by
such permit", and did not consider the implied context of the rest of the IBC, as required by IBC
$201.4.

39. The BCBA's interpretation of 2009 IBC $105.5 was also not in accord with the
canons of statutory construction applied by New Hampshire courts to interpret legislative intent.
When examining the language of a statute or code, the BCBA was required to ascribe the plain
and ordinary meaning to the words used. See New Hampshire Alpha of SAE Trust v. Town of
Hanover" 174 N.H. 269. 274 (2021) ("SAE II"). The BCBA was also required to interpret
legislative intent from the code as written and could not consider what the legislature might have
said or add language that the legislature did not see fit to include. Id. The BCBA was required
to interpret a code section in the context of the overall statutory scheme and not in isolation. Id.
In other words, the BCBA was required discern the intent of the legislature as expressed in the
words of the code considered as a whole. Dembiec v. Town of Holderness" 167 N.H. 130,134
(2014).

40. The BCBA enoneously cherry-picked the word "work" out of the phrase o'work
authorized on the site by such permit" and erroneously adopted an overly-broad dictionary
definition of the word: "effort, exertion or activity directed to produce or accomplish
something".

41. The BCBA erroneously substituted its own equitable opinion for the plain
meaning of black letter law when it held that "[t]he true intent of Section 105.5... is primarily
administrative in nature" and that Section 105.5 "does not purport to regulate 'not inactive, but

5
not really active enough' activities in construction." This interpretation is nowhere to be found
in the plain text of the IBC.

42. The BCBA erroneously substituted its own equitable opinion for the plain
meaning of black letter law when it held that the Building Inspector's 'ogenerous" determination
that work on the site had commenced on November 29,2022 could estop the Building Inspector
from applying the plain meaning of $ 105.5 after no further work was performed on the site
between November 29,2022 and February 1,2024. The BCBA had no authority to lessen the
requirements of the IBC on equitable grounds.

43. The BCBA eroneously concluded that"the true intent of Section 105.5 of the
[IBC] is to require effort, exeftion or activity to accomplish the goal of developing the site" and
"''Work' does not necessarily mean that a physical alteration must occur at the site."

44. The BCBA's interpretation of IBC $ 105.5 makes it effectively impossible for the
Building Inspector to enforce the section, as he cannot know when some "effoft" has
commenced off-site, or whether some "effort" is occurring on an ongoing basis to avoid
suspension or abandonment of a building permit, and he cannot evaluate the quality or quantity
of such "effort".

45. To the extent the the BCBA's interpretation of IBC $ I 05.5 implies that a building
inspector must make inquiries to a permitee regarding off-site ooeffort", this interpretation
improperly shifts an evidentiary burden to the building inspector, while "work authorized on the
site by such permit" should generally evident from simply observing or inspecting a building
site.

46. Accordingly, the State Building Code Review Board should reverse the BCBA
and order that the plain meaning of the phrase "work authorized on the site by such permit"
applies to the facts before the BCBA and, where no work on the site occurred for 180 days prior
to February 1,2024, the Permit was duly declared expired.

COUNT II:
After-the-Fact Affi davits and Testimony of Off-Site Work
Cannot Be Evidence of "Work Authorized on the Site by a Buildine Permit"

47. The Building Inspector repeats and realleges each foregoing paragraph as if fully
set forth here.

48. Separate from its erroneous interpretation of the term "work authorized on the site
by a building permit", the BCBA also erred in accepting testimony and affidavits presented at the
hearing as evidence of "work".

49. Work that is performed on a work site to construct a new building, pursuant to a
building permit, may be observed by a building inspector in real time simply by visiting the site,
but the evidence of "work" submitted by XYZ to the BCBA was not information observable by
the Building Inspector or made available to him before his February 1 determination that the
Permit had expired.

6
 50. The BCBA's decision incorrectly interprets IBC $105.5 by impliedly holding that
a permitee can resuscitate an expired permit by making an after-the-fact assertion of unspecified
off-site efforts to advance a project.

51. The BCBA's decision also incorrectly interprets IBC $ 105.5 by impliedly holding
that a building inspector cannot determine that a building permit has expired without first
contacting the permitee and requesting information about off-site efforts over the past 180 days.

52. The BCBA's decision also incorrectly interprets IBC $105.5 by allowing a
permitee to substantiate its off-site efforts with conclusory testimony and affrdavits, without
disclosing the specific details of where and why money is being spent, what retained
professionals might be working on, or how and to what extent all this relates to or constitutes
"work authorized on the site by a building permit".

53. Accordingly, the State Building Code Review Board should reverse the BCBA
and order that IBC $ I 05.5 may be enforced by the Building Inspector through his observations of
the construction site.

WHEREFORE, the Lebanon Building Inspector, by and through his counsel, respectfully
requests that the Honorable New Hampshire State Building Code Review Board:

A. Issue an Order of Notice and schedule a hearing under Bcr 200;

B. Reverse the decision of the local Lebanon Building Code Board of Appeals;

C. Hold that Building Permit #2016-00293 is expired and invalid because, pursuant to 2009
IBC Section 105.5, the work authorized on the site by the Building Permit was
suspended or abandoned for a period of 180 days after the time the work on site
authorized by the permit was commenced; and

D. Grant such other and further relief as is fair and just.

7
DATED this 5th day of June,2{)24.
Respectfu lly Subrnitted,
On behalf of the Lebanon Building lnspector
I3y his Attorneys.

/tr&.
IVlattherv C. Decker, NH Bar #267540
DRUI\,IMON D WOODSLI]\4 &
MACMAHON
I Court Street, Suite 320
Lcbanorl New llampshire 03766 - 1721
(603) 7e2-742t
rn d erk eg@!.$rdsy. cS!1

8
 C:ER'I'IFICATE OF SERVICE

I hereby certif that a copy of the fbregoing Notice of Appeal/Petition was served this day upon
the Lebauon Building Code Boanl of Appeals, c/o Lebanon Planning & Development Director
Nathan Reichert, by hand delivery and by e-mail, and upon Philip Hastings, Esq., attorney for
)fYZDa:ry,LLC., by U.S. Mail and by e-mail.

Date: June 5,2024 By: lilffi {r ,tonA*-

I
 ATTAGHMENT A

XYZ Dairy, LLC ('XYZ'), 1 River Park Dr (Tax Map 44, Lots 21-30 & Map 44, Lot 7) Zoned R-3,
CBD and IND-L. Pursuant to City of Lebanon Code 36-13.A Building Code Board of Appeals,
an appeal of the Building Official's determination that Lebanon Building Permit #2016-00293
has expired and is deemed to be invalid. BCBA2024-01

Duly noticed hearings were held on April 1st and 18th,2024. Testimony and legal argument
were taken from Appellant, represented by Attorney Philip Hastings and XYZ representatives
David Clem and Chet Clem. Testimony and legal argument were taken from the City,
represented by Attorney Matthew Decker and Building Official Calvin Hunnewell. XYZ and the
City were provided the opportunity to submit additional briefing or information; as well as to
refute, rebutand clarify until both restedtheircases. Dan Nash, a memberof the public, spoke
in favor of granting the appeal.

This Board has jurisdiction over this matter pursuant to NH RSA 674:34. Lebanon's Building
Official, interpreting Section 105.5 of the 2009 lnternational Building Code ("lBC"), ruled that
permit 2016-00293 has expired and is no longer valid. XYZ is the landowner and is aggrieved
by that decision. ln this matter, our jurisdiction is derived from XYZ's claim that the true intent
of the code has been incorrectly interpretedl.

The positions of the parties are summarized as follows

The Building Official, through the City Attorney, argues that IBC section 105.1 defines what
activities require a permit and section 105.2 defines what activities are exempt. The Building
Officialfurther argues that if XYZ's activities require a permit (105.1), then the activity required
to ensure the permit's continued validity must be activities identical to those that required the
permit in the first place. The City advocated for denying XYZ's appeal based on its belief that
Section 105.5 requires that work be physical, on the approved site, and any such work be the
type that would [if considered individually] require a permit.

XYZ, through its attorney, argues that the position taken by the City is overly constrained and
not reflective of the true intent of the code. XYZ argues that its continued investment in the
project, and development efforts over the relevant six month period constitute "work." XYZ also
argues that it is entitled to rely upon prior interpretations of Section 105.5 of the Code made by
the City.

lnterpretations of the IBC are a question of law, and our review is de novo

FINDING OF FACTS

We find the following facts in this matter:

1
Neither party introduced the 2009 IBC into the record, but it is undisputed and a public document
adopted by New Hampshire State Law.

1
1) The Building Official issued XYZ Permit #2016-00293 on December 31 ,20192

2) XYZ paid a fee of $90,492 for the permit.

3) The Building Permit is for the development of a new mixed-use commercial building

4) The building permit states:

Description of Work: New mixed-use commercial building within Lot #1 of the River
Park Subdivision

5) The development of a new building on a previously undeveloped site is a complex, multi-

part endeavor. This endeavor requires engineering, architectural planning, multi-agency
coordination, materials procurement and contractor scheduling. Although not unusual for any
major construction project, these complex activities are distinguishable from common single
action activities that also require permits, such as a minor residential electrical upgrade or
heating furnace installation.

6) The Building Official issued a letter toXYZ on March 24,2023. That letter identified B
bullet-pointed topics discussed on March 16,2023. None of the eight topics discussed involved
actual completed physical work at the building site. The written determination of the Building
Official states as follows (emphasis added)3:

As a result of the meeting and your follow up e-mail sent later the same day, we agree
that you have justffied the preparation work vou have been preparinq with vour construction
partners constitutes commencement of work at 1 River Park Drive in accordance with City of
Lebanon Building Permit #201 6-00293.

7) The Building Official issued a letter to XYZ on February 1,2024. The written
determination of the Building Official states as follows:
It is my determination that the work on the site authorized by Building Permit #2016-
00293 has been suspended or abandoned for a period of greater than 1 B0 days. Consequently,
Building Permit #2016-00293 has expired and is invalid.

B) ln the six month period preceding the Building Official's February 1,2024 determination
of expiration, XYZ incurred direct costs relative to the development of the site totaling $221,838
and incurred contractual obligations to pay another $652,303.4 ln that same time period XYZ
engaged three engineering firms and one architect to move the project fonruard. The amount of
money invested in the project within the relevant six month period equates to more than nine

2
The Building Permit file was not submitted in this case but is undisputed, in possession of both the City
of Lebanon and XYZ, and a public record.
3
This communication is unsigned, but neither party disputes its authenticity and the Building Official
confirmed that he authored and sent it.
a
Testimony in April 1 and 1B hearings and sworn affidavit of David Clem.

2
times the original cost of the permit and exceeds seven percent of the $12,296,1O0 total
estimated cost of construction.

9) The City conceded the following points in the hearings: that Section 105.5 does not set
a high bar for "work"S, that it is "obvious that there are aspects of construction projects that are
supported by offsite operations and preparation to perform"6, that "one day of work every 179"
would be sufficient to keep the permit activeT, that the City believes that it "must do what the law
says even when it makes no sense,"8 that there are items of work that could occur offsite that
the City would accept as worke. The City furthermore conceded that Section 105.5 does not
purport to regulate the intensity or pace of work progresslO.

10) The Building Officialtestified that the instant case is unusual and the only time that he
can remember expiring a building permit in this manner. The City's Director of Planning and
Development also added that the Planning and Development Office must contend with how to
dispense with voluminous numbers of permits that are applied for and never acted upon.

RULINGS OF LAW

We make the following rulings of law in this matter:

1) The true intent of Section 105.5 of the Code is primarily administrative in nature. The
Board finds that this section exists primarily to dispose of numerous permits that are applied for
and never acted upon, rather than to be an enforcement lever in adjudicating active permit
disputes or regulating the pace of construction. Section 105.5 does not purport to regulate "not
inactive, but not really active enough" activities in construction.

It is possible that one developer may believe it to be economically advantageous to

hyper-accelerate a project and complete a project quickly, paying substantial overtime and
expedite fees in doing so. Conversely, it is possible that a different developer could elect to
proceed at a more leisurely pace. To the extent that the City is concerned about "slow rolling"
projects or "system gaming" and wishes to enact a policy to regulate construction intensity, this
is best pursued through legislative process.

2) Section 2Q2 of the IBC ("Definitions") does not define "work." Nonetheless, section
105.5 uses the term "work" thrice. See below with emphasis added:

5
See meeting media, video tape of April 18,2024 Hearing at minute 1 1
6 lbid at minutes 34-35
7 lbid at minutes
41-42, the amount of work is not an issue and a hole in the ground suffices
8 lbid
at minute 45
e lbid at minutes 48-51
, for instance "a signed notice to proceed from a contractor", see also minutes 35-
36
lo lbid at minutes 41-42

3
 Every permitissued shall become invalid unless the work on the site authorized by such
permit is commenced within 180 days after its lssuance, or if the work authorized on the site by
such permitis suspended or abandoned for a period of 180 days after the work is commenced.

Whatever "work" happens to be, the Board believes that the three instances of "work" within this
section should be read harmoniously with each other.

The March 24,2023letter from the City to XYZ interpreted the first and third appearances of
"work" when it opined "we agree that you have justified the preparation work you have been
preparing with your construction padners constitutes commencement of work at 1 River Park
Drive in accordance with City of Lebanon Building Permit #2016-00293."

As a general rule, decisions must either adhere to precedent or indicate a valid reason why a
different result is reached on essentially the same set of facts. The City's explanations that it
previously provided "charitable treatment" and a "longer leash" to the landowner are not valid
explanations for a different result on the same facts. Accordingly, we hold that since "work" as
previously found by the City in the March 2023 letter includes "preparation work", similar
"preparation work" must also count as work in the absence of a valid justification for a different
approach.

3) Furthermore, the Board disagrees with the City's position that, in order to keep a permit
active, Section 105.5 mandates very specific physical site activities identicalto those that
required the original permit. lt is correct that the developer has items in the project that,
individually, would require permits. However, the approved "Description of gqrK" in the permit is
for the end result and not the individual, unbundled components. The end result of the
permitted work is to be a "New mixed use commercial building." The proper question is not "did
you perform a physical activity on the site that would, if applied for individually, need a permit"
but rather "did you engage in effort, exertion or activity to produce a new mixed use commercial
building on the site."

The City, several times in the hearings, conceded as much. Despite advocating for its
constrained reading of the code, the City repeatedly conceded that there were multiple off-site
activities that could constitute "work" under section 105.5.

4) lf the project was completed the "new mixed use commercial building" on the site would
be seen by a reasonable person as "a product of effort, exertion or activity11." Based upon this,
the reasonable definition of "work" prior to a project's completion would be "effort, exertion or
activity directed to produce or accomplish something12." ln this case, the "something" to be
accomplished by the "work on the site authorized by the permit" is the "new mixed use
commercial building."

11
See, for instance, the definition of "work" at www.dictionarv.corrr , definition #B
12
See, for instance, the definition of "work" at www.dictionarv.com, definition #1

4
 XYZ has spent hundreds of thousands of dollars, committed to spending hundreds of
thousands more, and retained at least four licensed and qualified professional service providers
to promote the completion of the described work - all within the six month period preceding the
appealed decision. XYZ has also engaged in inter-departmental and inter-agency
communication and activity to advance its project.

We recognize thal the City believes that these activities fall far short of an optimal level
of diligence and intensity, but Section 105.5 does not purport to regulate either diligence or
intensity. We also recognize that the City finds the interaction with XYZto be extremely difficult.
XYZmay, in fact, be pursuing its project through antagonistic and confrontational means. lf
true, that would be unfortunate, but it is also unfortunately outside of the parameters of Section
105.5 to impose or develop a policy on preferred manners of developer-municipal interaction.

The Board finds that the true intent of Section 105.5 of the code is to require effort,
exertion or activity to accomplish the goal of developing the site. The City previously ruled that
a minor breaking of ground at the site, possibly performative, was sufficient to satisfy the
requirements of 105.5. "Work" does not necessarily mean that a physicalalteration must occur
at the site13. The efforts, exertions and activities testified to by XYZ to pursue the development
of the site are substantially in excess of the "low bar" set by the City. Those efforts, including
the substantial expenditure of investment capital, advanced the "work authorized on the site",
and need not have actually occurred on the land itself in order to qualify under Section 105.5.

5) Finally, the Board issues two clarifications. First, not every activity identified by XYZ
qualifies as "work" pursuant to 105.5. A lease proposal to a prospective tenant for a building
that is not yet built is not "work" as contemplated in the lBC. Second, nothing in this ruling
diminishes the very extensive power of the Building Official to enforce compliance with the
Code, as well as other ordinances and regulations through IBC 2009 Section 105.6.

13
Although out-of-state rulings have no precedential value over us, the Board references the highly
informative ruling from the North Carolina Supreme Court in Morris Communs. Corp. v. City of Bessemer
365 NC 152, ruling in favor of the landowner who argued that ""work" encompasses the border range of
activities necessary I to complete a project]." and "Webster's Dictionary defines "work" to include
"sustained physical or mental effort to overcome obstacles and achieve an objective or result"....Applying
this definition to the Bessmer City ordinance, the term "work" has a broader meaning than mere visible
evidence of construction."

5
DECTSTON

For all of the reasons set forth above, including but not limited our findings of fact and
rulings of law, the City of Lebanon Building Code Board of Appeals on this 6th Day of May 2024
hereby GRANTS the appeal of XYZ Dairy, LLC.

Seconded

Vote

6
EXHIBIT 22
 State of New Hampshire
State Building Code Review Board
Physical Address:
NH State Fire Marshal's Office
Department of Safety
110 Smokey Bear Blvd
Concord, NH 03301

Mailing Address:
Office of the Commissioner,
Department of Safety,
33 Hazen Road
Concord, NH 03305

(603) 22s-43r5

Docket No. 24-3

Appeal of the City of Lebanon Building Code Board of Appeals
in Re: Appeal of Administrative Decision of Building Inspector

FINAL ORDER

This is an appeal from the City of Lebanon's Building Code Board of Appeals based on the
interpretation of the word "work." Specifically, what actions qualify as "work" sufficient to keep an
issued building permit active under the New Hampshire Building Code, specifically Subsection
105.5 of the International Building Code.1 In applying this subsection of the Code, the City of
Lebanon Building Inspector determined a building permit was rendered invalid due to a period of
physical inactivity at the proposed building site. XYZ Dairy, LLC, the permittee (and Intervenor),
appealed this decision to the City of Lebanon Building Code Board of Appeals (BCBA). The BCBA
reversed, holding that "work" under Subsection 105.5 encompassed a broad realm of activities
and therefore had been misapplied by the building inspector. This appeal followed.
On July 12, 2024, we held a hearing and heard arguments from the City of Lebanon Building
Inspector and YYZ Dairy, LLC. After hearing the arguments and reviewing the record of the BCBA,
we hold that the BCBA incorrectly interpreted the word "work" given the context and use of the
word throughout Section 105 of the Code. We therefore reverse the BCBA's decision and remand.

MATERIAL FAcTs

The material facts, as found by the Lebanon Building Code Board of Appeals,z include the
following:

I The
"New Hampshire Building Code" includes the adoption of the of the International Building Code 2018, as published by the
International Code Council lnc. See RSA 155-A:l,IV. The parties agree, however', that the permit at issue here should be reviewed
under the 2009 edition of the International Building Code. The provision subject to review, Subsection 105.5 of the Intemational
Building Code, is the same under the 2009 and 2018 editions of the International Building Code.
2
These matelial facts were uncontested by the parties and rve, as a body with limited appellate leview authorify focused on
questions of law, give def'erence to the local building code board of appeals as the fact-finder. See RSA 155-A:10, IV(e) and RSA
155-A:11-b.
 1. The City of Lebanon Building Inspector issued XYZDaiT,LLC (KYZ) a building permit on
December 3I,20 19, based on the 2009 edition of the International Building Code. CR170,
cR176.3
2. The permit is for the development of a new mix-use commercial building. CR171, CR176.
3. Under "Description of Work" the building permit states: "New mixed-use commercial
building within Lot#1 of the River Park Subdivision." Id.
4. The development of a new building on a previously undeveloped site is a complex, multipart
endeavor, requiring engineering, architectural planning, multi-agency coordination,
materials procurement, and contractor scheduling. .Id.
5. On March 24, 2023, the Lebanon Building Inspector issued a written determination via
letter to X{Z regarding the commencement of "work" at the building site. That letter
identified eight topics discussed with YYZ, but none of these involved physical work at the
building site. Nevertheless, the Building Inspector determined, "[a]s a result of the meeting
and your follow-up e-mail sent later the same day, we agree that you have justified the
preparation work you have been preparing with your construction partners constitutes
commencement of work at 1 River Park Drive in accordance with [the issued building
permit]." .Id.
6. On February l, 2024, the Building Inspector issued a letter to KYZ Dairy, LLC containing a
written determination that its building permit was invalid. Specifically, the letter states, in
part: "It is my determination that the work on the site authorized by [the building permit]
has been suspended or abandoned for a period of greater than 180 days. Consequently,
[the building permit] has expired and is invalid." .Id.
7 . In the six-month period preceding the Building Inspector's February 1, 2024,
determination, YYZ incurred direct costs in excess of $220,000 and entered into
contractual obligations in excess of $650,000 in furtherance of the development of the new,
mixed-use commercial building for which the permit was issued. .Id.
B. In the six-month period preceding the Building Inspector's February I,2024, XYZ also
engaged three engineering firms and one architect in support of developing the new, mixed-
use commercial building. Id.

StarpeRp oF REVIETv

This matter is before us pursuant to RSAs 155-4:10, IV(e); 155-A:11-b; and 674:34,1I. The
singular claim is that the New Hampshire Building Code, specifically Subsection 105.5 of the
International Building Code, has been incorrectly interpreted by the Lebanon Building Code Board

3((CR"
refers to the Certified Record of the Lebanon Building Code Board of Appeals, which was bates numbered and provided to
this Boald. The decision of the BCBA is contained in the lecord twice. at CP.170-174 and CR175-179.
2
of Appeals. As the New Hampshire Building Code has been adopted by the General Court-RSA
155-A:1, IV-this appeal is focused on the interpretation of a statute.
The interpretation and application of a statute presents questions of law, which as an
appellate body, this Board reviews de nouo. Bennett u. Totun of Hampstead, 757 N.H. 477, 483
(2008). Accordingly, we use the record of the local building code board of appeals but review the
board's interpretation and application of the Code without deference to the board's decision.

ANALYSTS & CoNcl,usrows or'Lew

The issue before us is the interpretation of the State Building Code of New Hampshire
Subsection 105.5 and its use of the term "work." Subsection 105.5 uses the term "work" three
times. And Section 105, Permits, as a whole uses the term "work" nineteen times. Yet the term is
undefined in this section and throughout the Code.

Subsection 105.5 states, in full, the following:

105.5 Expiration
Every permit issued shall become invalid unless the work on the site authorized by such
permit is commenced within 180 days after its issuance, or if the work authoized on the site
by such permit is suspended or abandoned for a period of 180 days after the time the work is
commenced. The building official is authorized to grant, in writing, one or more extensions of
time, for periods not more than 180 days each. The extension shall be requested in writing
and justifiable cause demonstrated.

In interpreting this provision, the Lebanon Building Code Board of Appeals (BCBA) held that
engagement in any effort, exertion, or activity directed to accomplish the goal completing the
permitted building on the site qualified as "work" sufficient for a permit to remain active. See
CR17B-179. We conclude that such an expansive interpretation of the term "work" is unsupported
by the context.
When reviewing the interpretation of the New Hampshire Building Code, we apply the rules of
statutory construction. See Harrington u. Toun of Warner, 152 N.H. 74,79 (2005). Under these
rules, words and phrases must be given their ordinary meaning unless it appears from the context
that a different meaning was intended. Greenland u. Bunker, 118 N.H. 783,7BS (1978); see a.lso,
Subsection 2Ol.4 of the International Building Code (mandating that undefined terms must have
ordinarily accepted meanings such as the context implies). We interpret the intended mganing of
the Code from the words used and enacted; we do not consider what the legislature might have
said or add language that was not included. N. H. Alpha of SAE Tlust u. Toun of Hanouer, 774
N.H. 269, 274 (2021). We do not interpret a word or phrase of the Code in isolation, but in the
context of the overall scheme. Seeid.; see also Subsection 2OI.4. So, to understand the term
"work" as used within Subsection 105.5, we look to Section 105 and the Code as a whole. See

3
Dembiec u. Town of Holderness, 767 N.H. 130, I34 (2OI4); see also Subsection 2OI.4; Antonin
Scalia and Bryan Garner, RBeorNc Law: TsB INTEReRETATToN oF LEGALTEXTS, 167-773 (explaining
the "Whole Text" and the "Presumption of Consistent Usage" canons of statutory interpretation).
Subsection 105.1 details what "work" requires the issuance of a permit, while Subsection
105.2 exempts certain "work" from the permit requirements of the Code. Under Subsection 105.1,
any "owner or owner's authorized agent who intends to construct, enlarge, alter, repair, move,
demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter,
repair, remove, convert or replace any electrical, gas, mechanical or plumbing system, the
installation of which is regulated by [the] code, or to cause any such work to be performed," must
first apply to the appropriate building official and obtain the required permit.
To apply for a permit, the applicant must, among other things, identify and describe the
"work to be covered by the permit", describe in a manner that readily identifies and definitively
locates the "proposed building or work", "indicate the use and occupancy for which the proposed
work is intended", and "state the valuation of the proposed work." See Subsection 105.3.
After receiving an application, the appropriate building official must issue a building permit if
satisfied that the "proposed work conforms to the requirements of [the] code" and the applicable
laws and ordinances. Subsection 105.3.1. The issued permit, however, is rendered invalid if the
"work authorized on the site by the permit" is not commenced within 180 days of issuance or if
the "work authorized on the site by the permit" is suspended or abandoned for a period of 180
days. Subsection 105.5. Upon issuance of a permit, the permittee is required to keep the permit or
a copy of the permit "on the site of the
workuntil the completion of the project." subsection 105.7.
In reviewing the term "work" within Section 105 as a whole, it is apparent that the
appropriate interpretation of "work" is neither overly expansive nor extremely narrow.
From its use throughout the section, the term "work" refers to activities that are regulated by
the Code. The activities range from constructive acts to destructive acts and vary from large to
small. But it does not include all efforts, exertions, or activities directed toward an ultimate end
result. Nor does the term "work" encompass efforts and activities that occur beyond the identified
and definitively located site listed in the permit and where the permit must be posted. For
example, mental exertion associated with complex commercial building projects or particularly
intricate residential projects (even if small) undoubtedly requires taxing effort by professionals.
But this type of exertion is not readily encompassed by the term "work" as used within Section
105 ofthe Code.
To hold otherwise makes the Section confusing and incoherent, requiring multiple
interpretations of "work" within a single section of the Code. As noted above, an applicant is
required to describe the work covered by the permit and identify the location of the proposed
work. But the BCBA interpreted the term "work" as used within Subsection 105.5 to encompass

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more than physical activities and favorably cited a North Carolina decision holding the word
"work" includes the mental effort to overcome obstacles. CR174, CR178.4
We conclude this interpretation of "work" goes too far. We find the meaning of the term
"work" within Section 105 to be more limited, which becomes apparent from when reviewing the
full context of the provision. Qualifying activities are those that are authorized by the permit and
occur at the identified location, i.e., physical acts that take place at the physical site where the
permit must be posted.
Last, it is evident that the BCBA based its interpretation and ultimate holding, at least in
part, on the representations of City Officials to the permittee about what qualified as work in the
early stages of the project: CR177- 178. Because the City previously communicated in a March
2023 Ietter to XYZ that "preparation work" was sufficient to meet the requirements of "work"
under Subsection 105.5, the BCBA held similar "preparation work" must also suffice as "work" in
2024. Id. It is beyond our jurisdiction to opine on whether there are equitable claims against the
City of Lebanon for representations to KYZ. Here, our authority is limited to reviewing the
interpretation of the text of the Code by the BCBA. See RSA 155-A:1 1-b. And it is beyond our
authority to waive or grant variances to requirements of the code. Id. Accordingly, we do review
whether the BCBA or another body may appropriately find the City is estopped from invalidating
the permit because of representations made by city officials concerning the types of conduct that
would qualify as work under Subsection 105.5.

Corcr,usron

Because we hold that the local building code board of appeals incorrectly interpreted the
term "work" as used within Section 105 of the Building Code, we reverse its decision. We hold that
proper definition of "work" as used in Subsection 105.5 of the code refers to physical work
authorized by the permit and conducted at the site.
We note the issuance of permits and collection of fees under the state building code is
expressly reserved for local municipalities. See RSA 155-A:2,IIL We therefore remand this matter
to the City of Lebanon and its Building Code Board of Appeals for any additional and necessary
proceedings to be held consistent with this Order.

4
The Notice of Decision and accompanying decision of the Lebanon Building Code Boald of Appeals at CRl 75- I 79 lacks
tbotnotes. The BCBA's decision, however, is also printed, in tull, in the May 6,2024 minutes of the Lebanon Building Code Board
of Appeals at CRl69-174. The decision as reflected in the minutes contains the missing footnotes. As the minutes reflect the
adoption of the Order via proper motion and vote of 4- 1 , we construe the omission of footnotes in the decision accompanying the
Notice of Decision at CRl75-179 to be a simple scrivener''s en'ol and not an intentional deletion with legal signiticance.
5
 Based upon the above, it is:
ORDERED that the decision of the Lebanon Building Code Board of Appeals is REVERSED and this
matter is REMANDED for further proceedings consistent with this Order.

BY ORDER OF THE BOARD5

by Phlllp R.
Dated: July 3t,2024
Philip R.
R. Sherman, PE"
R. Sherman, PE"
1 1:30:56-04'00'

Philip Sherman, Chair

New Hampshire State Building Code Review Board

5
This Order is the formalwation of a decision previously made during the Board's meeting held on July L2,
2024 by unanimous vote of the participating Board members. The Board members participating and specific
motions are captured in the Board's meeting minutes.
6