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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough–northern judicial district
No. 2000-050
NBAC CORP.
v.
TOWN OF WEARE
December 21, 2001
Gallagher, Callahan & Gartrell, P.A., of Concord (Michael R. Callahan and Donald E. Gartrell on the brief, and Mr. Callahan orally), for the plaintiff.
Nixon, Raiche, Manning, Casinghino & Leach, P.A., of Manchester (Kevin M. Leach on the brief and orally), for the defendant.
Duggan, J. This is an appeal by the plaintiff, NBAC Corp. (NBAC), from an order of the Superior Court (Perkins, J.) affirming the Town of Weare (town) Board of Selectmen’s (selectmen) denial of NBAC’s application to conduct sand and gravel excavation. We affirm.
NBAC is the owner of a 30.7 acre, undeveloped lot located west of Route 114 in Weare. The lot is approximately one-half mile from the center of town, and is in close proximity to the town’s middle and elementary schools. The lot is in a commercial zone, where gravel operations are allowed if the owner obtains a special exception from the town’s zoning board of adjustment (ZBA) and then receives an excavation permit from the selectmen.
In March 1998, NBAC applied for a special exception. In its application, NBAC represented to the ZBA that the lot was not located in an aquifer protection zone. After considering the factors outlined in the zoning ordinance and public comments, the ZBA granted a special exception with conditions to conduct gravel operations on the lot. The town planning board filed a motion for rehearing before the ZBA, claiming that the excavation pit failed to satisfy certain requirements under the zoning ordinance. The ZBA denied the planning board’s motion. The planning board did not appeal and, subsequently, the special exception became final.
In May 1998, NBAC filed an application for an excavation permit with the selectmen, requesting to remove approximately 615,000 cubic yards of material from 12.8 acres of the lot. See Town of Weare Earth Products Ordinance