Neighbors appealed a decision of the zoning board and planning board approving a site plan for the construction of a Lowe’s. Following a decision of the superior court which upheld the boards’ determinations, the New Hampshire Supreme Court affirmed.
At issue was whether the removal of fill from an environmentally sensitive zone (ESZ) was “incidental” to lawful construction for purposes of the zoning ordinance which generally prohibits excavation (including placement or removal of fill) in the applicable zone unless it is incidental to the construction. The petitioners claim that the removal of fill from an ESZ to raise floodplain land on the same parcel was not an incidental use, suggesting that incidental uses are those that are minor in quantity and related to the construction. The petitioners further argued that the fill removal was too large (quantity) and was not at the location where the building was to be built (relational), and as such, was not incidental.
In determining the definition of incidental which in this case was not contained in the ordinance, the court looked to the common usage of the term, using dictionary definitions for guidance, noting that “incidental” means to be subordinate. The Court then reasoned that since the word “minor” is used in the same section of the ordinance, incidental cannot mean minor, as there would be no logic in including both “minor” and “incidental” in the same section. Thus, the term incidental does not impliedly include restrictions on quantity as asserted by the plaintiffs. Further, the Court found that there is not relational requirement. The ordinance does not require that a part of the construction (building or parking lot) be located on the fill removal location.
Since the removal of fill was needed to effectuate the real estate development plan, and not for the purpose of commercial excavation, the Court concluded that here, removal of fill was incidental, or subordinate, to the construction. Furthermore, the court found the construction plan was lawful because the incidental use of removing fill allows the construction project to comply with the one-to-one floodplain compensation requirement. (Land taken to raise the construction site out of a floodplain is removed from elsewhere on the property.)
By the time of this appeal, although Lowe’s no longer had an interest in the property or site plan, the Court said that the matter was not moot since the judgment affects and regulates the land itself, not the operator of the premises.
Batchelder v. Town of Plymouth Zoning Board of Adjustment, 2010 WL 1816366 (N.H. 5/7/2010).
The opinion can be accessed here.
