Appellants in Highland Croft case submit motion to reconsider


Judge had affirmed board's approval of excavation permit


October 05, 2011
LITTLETON — The appellants in a case against the town of Littleton involving a piece of property known as Highland Croft have filed a motion for reconsideration in Grafton County Superior Court.

The 10-page motion takes the court to task for each of its rulings concerning a Jan. 4 Planning Board hearing on an application for excavation. The project would involve the removal of 1.5 million cubic yards of aggregate from an area about 1,500 feet from the town's Brickyard Road Wellhead. It would effectively level a 70-foot knoll in the hopes of making the property, which the owner was trying to sell, more appealing to commercial developers.

The motion, which was filed last week, tackles the court's decisions concerning hydrologic and traffic studies, the Planning Board's allowance of time for the hearing, and federal and state permits, in addition to a few other points of contention.

The appellants — Littleton residents Jan and Mary Edick, Steve and Stacey Northrup and Russell and Lucy Magoon — have been fighting the board's approval of the application since the summer of 2010.

On June 1, 2010, the board granted the request for the excavation permit, but the appellants requested a rehearing, arguing that a regional impact notice needed to be sent out. The board then agreed to a rehearing on Jan. 4, during which, the appellants argued, that a number of matters leading up to the second approval were handled incorrectly.

The appellants filed a motion for a rehearing, but in early February the board stood by its conclusion, and the residents appealed to the Grafton County Superior Court.

On Sept. 15, the court — Justice Peter Bornstein — affirmed the decision, warning that the burden of proof was on the appellants and the court was "obligated to treat the factual findings of the planning board as prima facie."

First in the court's decision, was the matter concerning the "opportunity to participate at the final hearing," which the appellants say was lacking because "20+ people" were not given the opportunity to speak at the hearing and their own experts' testimony was cut short.

Bornstein said the minutes reflect that the Highland Croft project was discussed during the majority of the Jan. 4 meeting and that they do not back the appellants' claim that they were unreasonably limited in time for their presentations. He also said that the "town claims that the chairman notified the participants at the beginning of the meeting that [it] must end at 9 p.m."

However, the minutes also do not reflect that a three-hour time limit was placed on the hearing or the claim that the chairman notified the crowd before the hearing that it must end at 9 p.m., according to what is posted on the town's website. And the appellants argue that a recording of the meeting does prove that the chairman waited until 8:50 p.m. to announce the end of the meeting, "just as the petitioners' experts were preparing to give their presentation."

The appellants' attorney, Scott Hogan of Lee, said that if the chairman had announced the time limit at the beginning of the meeting, his clients would have re-structured their planned presentation.

Hogan also says in the motion that the court's omission of a RSA provision concerning the hazards of excavation is a "legal error." He claims that RSA 155-E:4-a(IV) prohibits "any degradation of water quality of any public or private water supplies." He later states that the appellants had the only experts, who said that a hydrogeologic study should be conducted, and that there was " a real chance [of] impacts to water resources."

The court ruling on the board's conclusion that "no unreasonable hazard" will affect the water supplies, Hogan says, "ignores the evidence that was submitted by bona-fide experts and ignores the statutory mandate of RDA 155-E:4-a(IV).

As for the hydrologic and traffic studies, the appellants say that Bornstein's point that the performance bond, which the board required, was enough to not require a hydrologic study, doesn't meet a standard of review found in RSA 155-E.

Bornstein also said the board conditioned the approval on receiving the required state and federal permits — and a Department of Transportation requirement addresses traffic concerns, but one of Hogan's arguments is that RSA 677:15 states that the board can't give final approval until all state and federal permits are secured.

The motion to reconsider was submitted Thursday, Sept. 29.

The Edicks said Monday that Hogan had recommended the appellants not give any statements concerning the case.

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