Washburn: Concord School Board Claims Exemption From Deed Restriction

I am seldom amazed at the unchecked arrogance of the Concord School Board when it comes to their determination to construct a new middle school over significant community objection.

The recent stealth purchase of a Conant Drive residence takes the cake. No, not the purchase alone, but claiming they were exempt from the controlling restrictive deed covenants.

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Nothing could be further from the truth pending a court ruling prior to the start of construction.

Conant Park came into play in 1947 as a massive housing development in post-WWII. There was economic uncertainty, and the developer, not the government, desired to give homebuyers certain protections when buying their home in this development, which would be protected from any other proposed constructed units that would impair their investment. There are eleven restrictive covenants. Numbers (2) and (5) are the most pertinent to the case at hand.

(2) No building shall be erected, altered, placed, or permitted to remain on any residential plot other than one single-family dwelling…

(5)No noxious or offensive trade or activity shall be carried on upon any plot nor shall anything be done thereon which may be or become an annoyance or nuisance to the neighborhood.

It is curious to note that the deed restrictions are not restricted to the newly purchased residence but also to the current soccer field that is the proposed construction site for the new middle school. The district is operating under the false illusion that they are somehow exempt from the restrictive covenant; they aren’t.

“A New Hampshire city generally cannot override a private deed restriction solely by purchasing the property. Deed restrictions (covenants) are binding private contracts that usually remain in effect unless released by all beneficiaries, expired, or removed by court order, even if the city holds title.”

• Public vs. Private Control: While a city cannot usually extinguish a private restriction simply by becoming the owner, they can often bypass zoning restrictions. (This is not a zoning restriction.
• Court Action: A court can rule to void a restriction.
• Methods of Removal: Deed restrictions in NH persist unless formally released by the original beneficiary, expired, or invalidated by a court.
• Acquisition by City: When a city purchases property, they often do so to control the property, which may be for a public purpose, but this does not automatically destroy restrictions placed on the land by previous private owners.

The covenants placed on the property are legally enforceable today as they were when they were put in place in 1947. The School Board will argue that the new building will be near to an existing school building, but the existing building was built on land purchased in 1927 with no restrictive covenants on it.

The unanswered question I have is when the bond counsel was performing due diligence on the proposed bond issue, did the Business Administrator inform him that the proposed new school was to be built on land the contains a restrictive covenant that prohibits construction? I suspect not.

Anyone living in a home that contains that deed restriction can appeal the decision by the School Board to either use the house as a construction office or to build the school on restricted land. The number of affected houses exceeds 100.