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NH Supreme Court paves the way for Lowe's

May 15, 2010
PLYMOUTH — After years of hearings, deliberations, appeals and litigation, the New Hampshire Supreme Court last week upheld the Town of Plymouth Planning Board and Zoning Board of appeals in its approval of the site plan application for the development of a Lowe's Home Improvement Center on a 77.46 acre parcel of land off the Tenney Mountain Highway in Plymouth.

Over the past four years, the case has sharply divided residents of Plymouth, many of which object to the plans to excavate large quantities of earth from areas in the designated environmentally sensitive zone (ESZ) within 500 feet of the Baker River.

Abutters William and Elizabeth Batchelder had appealed the Plymouth Planning Board and Zoning Board decisions to approve the plan on the grounds that it violated the Town's zoning regulations, but last week in its decision dated May 7, the Supreme Court found the proposed excavation to be "incidental" to lawful construction and therefore permissible under the current zoning ordinance.

The parcel in question, located on the northern side of Tenney Mountain Highway opposite the intersection with Highland Avenue in what is now a vacant meadow, is located entirely in the Agricultural District and in the 100-year floodplain. The ESZ is an overlay district imposing additional restrictions on development to protect water quality in the Baker River.

Section 710 of the Plymouth Zoning Ordinance governing the ESZ prohibits "any placement or removal of fill excepting that which is incidental to the lawful construction or alteration of a building or structure or the lawful construction of a parking lot or way, including a driveway on a portion of the premises where removal occurs."

The planned excavation in the Lowe's development site plan is necessitated by the one to one compensation requirement of state, federal and local floodplain regulations. Extensive earthwork is needed to elevate the construction site above the 100-year floodplain by the addition of fill. According to these regulations, an equivalent removal of fill elsewhere at the site is required to compensate for the effect of the added material on the floodplain.

As anyone who has followed the case over the past few years is well aware, the decision turns primarily on the interpretation of the word "incidental" in the zoning ordinance. Attorneys for the Batchelders had argued that the term incidental means "minor" in the sense that indicates a small quantity of material to be added or removed on site. The developer for Lowe's, Topsfield Realty, plans to excavate 200,000 cubic years of earth from the ESZ along the Baker River.

However the Court upheld the Plymouth Planning Board, Zoning Board and the Superior Court in choosing to interpret "incidental" as meaning "subordinate" to the primary construction activity on site, that of a retail store and parking facility which is lawful in the Agricultural zone.

In its decision the Court said that because the term "incidental" is not defined in Section 710 of the Plymouth Zoning Ordinance, the court must look to "common usage" to interpret the term. Citing several reference sources including Black's Law Dictionary and The Random House Dictionary of the English Language, they ruled that "incidental" is commonly understood to mean "subordinate to something of greater importance; having a minor role".

The Supreme Court affirmed the decision of the trial court which found; "no evidence that Topsfield has undertaken the construction project as a pretext for the removal of fill. The project involves real estate development not commercial excavation; therefore the earthmoving activities necessary to elevate the construction are merely 'subordinate to' or 'incidental to' the project

The Court also said that it could not consider the intent of the drafters of the original zoning ordinance in its deliberations, but must decide the matter on the words in the stature and their common interpretation."

In announcing the decision at the Plymouth Selectmen's Meeting Monday evening, Board Chairperson Valerie Scarborough acknowledged the concerns of residents on both sides of the debate about Lowe's development that has been ongoing since the application was first filed in 2005. The Planning Board initial site Plan approval came in 2007.

"We realize there are strong feelings on both s ides of this case and hope that we can put it behind us and move forward," said Scarborough.

While the Supreme Court decision is unlikely to assuage the fears of many residents about the potential environmental impacts of the commercial development, it does substantially resolve the outstanding legal issues in the case, allowing construction to proceed.

Klumb Environmenta;
Varney Smith
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