2008-847, William Batchelder & a. v. Town of Plymouth Zoning Board of Adjustment

The petitioners, William and Elizabeth Batchelder, appeal

intervenor Topsfield Real Estate Corporation. Casassa and Ryan, of Hampton (Peter J. Saari on the brief), for

Plymouth Zoning Board of Adjustment. John J. Ratigan on the brief, and Mr. McGowan orally), for the Town of Donahue, Tucker & Ciandella PLLC, of Exeter (John L. McGowan and

Serge on the brief, and Mr. Hilliard orally), for the petitioners. Upton & Hatfield, LLP, of Concord (Russell F. Hilliard and Matthew R. to press. Errors may be reported by E-mail at the following address:

TOWN OF PLYMOUTH ZONING BOARD OF ADJUSTMENT

page is: http://www.courts.state.nh.us/supreme. WILLIAM BATCHELDER & a.

No. 2008-847 editorial errors in order that corrections may be made before the opinion goes Grafton Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 710.4 of the ordinance prohibits certain activities in the ESZ, including: ordinance section 710, because it allowed excavation in the ESZ. Section

appealed to the ZBA, arguing that the Board’s decision violated zoning

Board approved the site plan application in August 2007. The Batchelders

requirement, Topsfield’s plan includes the removal of fill from the ESZ. The compensation. To construct the structure in accordance with this Pursuant to federal law, the placement of fill requires one-to-one floodplain

100-year flood level to comply with local, state, and federal regulations.

the floodplain, Topsfield must add fill to elevate the structures to or above the the Baker River. Because the proposed project would be constructed within environmentally sensitive zone (ESZ), which includes all land within 500 feet of of its decision, the ZBA concluded: ruled that section 710.4 did not prohibit the proposed development. In support for rehearing, which was granted, and after two public hearings, the ZBA again

agricultural zone and portions of the site are also located within the overlaying

the premises where removal occurs. the excavation was incidental to lawful construction. The Batchelders moved of a parking lot or way including a driveway on a portion of building or structure or the lawful construction or alteration

minor topographical adjustment. to agricultural or silvacultural activities, normal landscaping or

floodplain. Under the town’s zoning ordinance, the site is located within the development is situated on a 77.46 acre parcel entirely within the 100-year property. Topsfield presented its proposal to the Board in 2005. The proposed development did not require a permit pursuant to RSA chapter 155-E and that In October 2007, the ZBA denied the appeal, ruling that the proposed incidental to the lawful construction or alteration of a

Plymouth, N.H., Zoning Ordinance art. VII, § 710.4 B, C, D (2009).

D. any placement or removal of fill excepting that which is incidental

commercial facilities. The Batchelders’ property abuts the development

C. any placement or removal of fill excepting that which is

issued under RSA 155-E (soil and gravel mining) is required. B. any disturbance for which an Earth Excavation permit

includes the construction of a large home improvement store and related

The following facts are supported by the record. Topsfield’s proposal

Center in Plymouth. We affirm. Estate Corporation (Topsfield) for construction of a Lowe’s Home Improvement approval of the project.

p. 3 future litigation may be avoided.

Lowe’s should abandon its site plan, another retailer could utilize the Board’s

ESZ was incidental to lawful construction. person who owns or operates the premises by whom such use is to be trial court erred in affirming the ZBA’s finding that the removal of fill from the justified where there is a pressing public interest involved, or court affirmed the ZBA’s decision. On appeal, the Batchelders argue that the

conforms with the zoning ordinance and regulations. Accordingly, even if Rather, the Board’s approval related to whether the proposed development conditioned upon, or limited to, Lowe’s exclusive occupation of the site.

restrictions are designed to regulate the land itself and its use and not the Little Boar’s Head District. permitted, in this case, retail use. convenience and discretion. A decision upon the merits may be, 101 N.H. 460, 463 (1958) (“zoning conditions and phrase “incidental to lawful construction” contained in the ordinance. The Construction is lawfully allowed and the proposed use is See RSA 676:4-a (2008); see also Vlahos Realty Co. v. the placement and removal of material proposed by Topsfield

regularly associated with this type of retail activity. has noted in its brief, the Board’s approval of the development plan was not LeBaron v. Wight, 156 N.H. 583, 585 (2007) (quotation omitted). As Topsfield

mootness is not subject to rigid rules, but is regarded as one of then appealed to the superior court, alleging that the ZBA misinterpreted the have become academic or dead. However, the question of incidental to lawful construction” clause, due to the fact that The doctrine of mootness is designed to avoid deciding issues that

interested in the case.” appeal, Lowe’s had withdrawn as an intervenor, indicating that it “is no longer retail uses and this activity is that which is normally and We first address whether this appeal is moot, given that at the time of the

The Batchelders filed another motion for rehearing, which was denied. They Construction meets the definition of “except that which is

for the primary use of the site; for allowed and permitted Topsfield Construction, are all related to the infrastructure xi. The construction of parking lots and driveways, proposed by

x. The board determined that the work proposed by Topsfield

and permitted construction plans. ix. Excavation and placement of fill is incidental to the approved related to the construction. Regarding the first criterion, the Batchelders

p. 4 add words that they did not see fit to include.

to excavation activities that are “minor in terms of quantity” and directly

guess what the drafters of the ordinance might have intended, or

Accordingly, the Batchelders urge us to interpret “incidental” as applying only used in section 710.4(C), implies two criteria — quantity and relatedness. the removed earth will be used. The Batchelders assert that “incidental,” as

further indications of legislative intent. Moreover, we will not 4 as a whole and attempt to discern the meaning intended by the framers.” unambiguous, we need not look beyond the ordinance itself for language. When the language of an ordinance is plain and

the relationship between the excavation activity and the primary use for which

no definition is provided in the ordinance itself, we must look to the ordinance be construed according to the common and approved usage of the

construction as a whole, not by construing isolated words or phrases.”

court reasonably supports its findings.” interpretation of a zoning ordinance is a question of law, which we review Both parties agree that the term “incidental” requires an examination of

Trottier v. City of Lebanon, 117 N.H. 148, 150 (1977) (citation omitted).

ordinance defines the term in issue, that definition will govern. Where, as here, Town of Wilmot govern our review, the words and phrases of an ordinance should, 154 N.H. 715, 719 (2007) (quotation omitted). “Where the

omitted). “We determine the meaning of a zoning ordinance from its Anderson v. Motorsports Holdings, 155 N.H. 491, 494-95 (2007) (citations

would find as the trial court found, but rather whether the evidence before the term “incidental” in the ordinance regarding lawful construction. The

unreasonable.” probabilities, based on the evidence before it, that the ZBA’s decision was Because the traditional rules of statutory construction generally

novo. Duffy v. City of Dover, 149 N.H. 178, 181 (2003).

does not support it or it is legally erroneous. Our inquiry is not whether we Our review of the trial court’s decision turns on the interpretation of the

appeal to the superior court. RSA 677:6. The party seeking to set aside the board’s decision bears the burden of proof on

Cmty. Res. for Justice, 154 N.H. at 751 (quotation omitted).

677:6 (2008). “It may set aside a ZBA decision if it finds by the balance of treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA Manchester, 154 N.H. 748, 751 (2007) (citation omitted). The trial court must

“We will uphold the trial court’s decision on appeal unless the evidence

party’s pursuit of this project, we conclude that this appeal is not moot. exercised”). Because the issues presented are likely to be relevant to any interpretation defeats the purpose of an overlay district.

p. 5 (quotations and ellipsis omitted)). They argue that the ordinance permits only

compliance with ESZ mitigation regulations. They assert that this

requirements in addition to those otherwise applicable for the underlying zone”

section 710.4 to permit removal or placement of fill that is required for

in the ordinance, we look to its common usage, using dictionary definitions for ordinance as a whole, premises where removal occurs.” Because the term “incidental” is not defined 710.4(C) does not anywhere include the term “minor.” Accordingly, reading the or alteration of a parking lot or way including a driveway on a portion of the two distinct words in the same sentence.” Unlike section 710.4(D), section “superimposed over the existing zoning district and imposes specified Town of Windham, 158 N.H.187, 191 (2008) (defining overlay zone as

is clearly shown.”). Section 710.4(D) prohibits “any placement or removal of fill The Batchelders next contend that the trial court erred in interpreting

“incidental” does not imply limitations on quantity.

construction or alteration of a building or structure or the lawful construction because if it did, there would be no logic to the zoning ordinance’s use of the We agree with the trial court’s analysis: “‘[I]ncidental to’ cannot mean ‘minor’ normal landscaping, or minor topographical adjustment.” (Emphasis added).

the same meaning in other parts of the ordinance, unless a contrary intention (“Words used with plain meaning in one part of an ordinance are to be given term “incidental.” Boyle v. City of Portsmouth, 154 N.H. 390, 390-91 (2006) The trial court pointed to another section of the ordinance that uses the

“subordinate.” English Language 886 (4th ed. 2006). Thus, “incidental” generally means “any placement or removal of fill excepting that which is incidental to the lawful minor, casual, or subordinate nature,” The American Heritage Dictionary of the The Random House Dictionary of the English Language 720 (1966); and “[o]f a conjunction with something else,” “likely to happen or naturally appertaining,” something “happening or likely to happen in fortuitous or subordinate the excavation occurs. importance; having a minor role,” Black’s Law Dictionary 830 (9th ed. 2009); requires that the building being constructed must be located in the area where “incidental” is commonly defined as “[s]ubordinate to something of greater construction.” As to the second, the Batchelders argue that the ordinance Caparco v. Town of Danville, 152 N.H. 722, 726 (2005). The term

181, we look to its plain language. Section 710.4(C) prohibits, within the ESZ, Because we do not add words to the ordinance, see Duffy, 149 N.H. at

exceeds a quantity that could be considered “‘incidental’ to any lawful contend that the 200,000 cubic yards of earth being removed from the ESZ development. p. 6 conclude that section 710.4(C) does not prohibit Topsfield’s proposed

where removal occurs.”

conclude that it was not unreasonable or unlawful for the trial court to

construction. lawful

“add words that [the drafters] did not see fit to include.”

parking lots and driveways will not be placed on “a portion of the premises “subordinate to” or “incidental to” the project.

River Valley,” development is not prohibited in the ESZ. On the record, we

property. We thus conclude that the removal of fill is incidental to lawful

DUGGAN and HICKS, JJ., concurred. require that the lawful construction occur only where the removal occurs would

placement of earth are prohibited by section 710.4(C) because the buildings, the earthmoving activities necessary to elevate the construction are merely

“reduce the disturbance and intrusion of earth around the protected Baker the purpose of the ESZ. Although the purpose of the ordinance may be to “[s]ubordinate to something of greater importance; having a minor role.” be added under the building only if fill is removed from another area on the 181. We also reject the Batchelders’ argument that this interpretation defeats Because placement of fill requires one-to-one floodplain compensation, fill may Duffy, 149 N.H. at added under the building area to elevate it to or above the 100-year flood level. when it treated the entire site as the premises.” To construe the ordinance to

In so finding, we reject the Batchelders’ assertion that the removal and project involves real estate development, not commercial excavation; therefore,

to lawful construction, we apply the common definition of the term as

construction.” For construction to be “lawful” under the ordinance, fill must be The ordinance requires that the removal be incidental to “

had undertaken the construction project as a pretext for removing fill. The Black’s Law Dictionary, supra. The trial court found no evidence that Topsfield

To determine whether Topsfield’s proposed removal of fill is “incidental”

excavation. the removal of fill incidental to construction that is lawful without the