Suit: Town of Durham used land without owner's OKBy KIMBERLEY HAAS
Union Leader Correspondent
December 19. 2016 9:28PM
DURHAM — A Florida-based business owner says the town of Durham has been using his land for a large water tank without permission for 20 years, and he wants a judge to declare that he is the rightful owner of the property.
Matthew Cutter purchased the land where the 650,000-gallon water tank sits in July of 1996 from Jesse Gangwer, a developer in the town of Durham who owns the downtown Town and Campus shop, as well as other establishments. In 1985, Gangwer wanted to expand his reach further downtown, so he offered the town a trade. In exchange for the construction of a water tank on his Beech Hill land, Durham officials conveyed a piece of town-owned property on Main Street to Gangwer.
The problem is that a deed for the exchange was never properly recorded, or has gone missing over the years. Cutter’s attorneys point out that a memorandum of understanding between Gangwer and the Durham Board of Selectmen recorded on July 9, 1985, does not meet the statutory requirement for a deed and is nothing more than a letter of intent.
Cutter says he never granted the town permission to use the land for the water tank, and after presenting Durham officials with a $110 million development plan in 2014, he was told his land is worth no more than the value of a conservation easement. Cutter sued under the theories of trespass and unjust enrichment earlier this year. Strafford County Superior Court Judge Steven Houran will hear arguments for the trespass claim for the three years allowed within the statute of limitations, but dismissed the unjust enrichment claim.
Houran also dismissed Cutter’s claims of intentional misrepresentation and bad faith. He will hear the arguments for the title if the case proceeds to trial next year.
When reached for comment Monday, one of Cutter’s attorneys, Mark Hodgdon, said this matter is a property rights issue, and the civil lawsuit is not based on what Cutter hopes to do with the land in the future.
“From my point of view, that’s not really relevant to the litigation,” Hodgdon said. “I can’t speak for my client, but to my knowledge there is no present plan for development.”
Town administrator Todd Selig says Cutter purchased the property with knowledge of the water tank and the fact that town officials could not find a deed to the site. Selig said this has been an ongoing issue for years, but it wasn’t until 2015 that Cutter raised the issue in earnest.
Attorney Laura Spector-Morgan, who represents Durham, said they are still collecting all of the facts relevant to the litigation.
“We haven’t finished discovery yet. Once that happens, we will see if summary judgment or a dismissal is warranted,” Spector-Morgan said. “If not, certainly we will be obligated to mediate, and if that doesn’t work, we will go to trial.”
All interrogatories are due by Feb. 1.