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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Grafton No. 2008-847 WILLIAM BATCHELDER & a. v. TOWN OF PLYMOUTH ZONING BOARD OF ADJUSTMENT Argued: January 20, 2010 Opinion Issued: May 7, 2010 Upton & Hatfield, LLP, of Concord (Russell F. Hilliard and Matthew R. Serge on the brief, and Mr. Hilliard orally), for the petitioners. Donahue, Tucker & Ciandella PLLC, of Exeter (John L. McGowan and John J. Ratigan on the brief, and Mr. McGowan orally), for the Town of Plymouth Zoning Board of Adjustment. Casassa and Ryan, of Hampton (Peter J. Saari on the brief), for intervenor Topsfield Real Estate Corporation. CONBOY, J. The petitioners, William and Elizabeth Batchelder, appeal an order of the Superior Court (Vaughan, J.) upholding decisions of the Town of Plymouth Zoning Board of Adjustment (ZBA) and the Town of Plymouth Planning Board (Board) approving the site plan of intervenor Topsfield Real

Estate Corporation (Topsfield) for construction of a Lowe's Home Improvement Center in Plymouth. We affirm. The following facts are supported by the record. Topsfield's proposal includes the construction of a large home improvement store and related commercial facilities. The Batchelders' property abuts the development property. Topsfield presented its proposal to the Board in 2005. The proposed development is situated on a 77.46 acre parcel entirely within the 100-year floodplain. Under the town's zoning ordinance, the site is located within the agricultural zone and portions of the site are also located within the overlaying environmentally sensitive zone (ESZ), which includes all land within 500 feet of the Baker River. Because the proposed project would be constructed within the floodplain, Topsfield must add fill to elevate the structures to or above the 100-year flood level to comply with local, state, and federal regulations. Pursuant to federal law, the placement of fill requires one-to-one floodplain compensation. To construct the structure in accordance with this requirement, Topsfield's plan includes the removal of fill from the ESZ. The Board approved the site plan application in August 2007. The Batchelders appealed to the ZBA, arguing that the Board's decision violated zoning ordinance section 710, because it allowed excavation in the ESZ. Section 710.4 of the ordinance prohibits certain activities in the ESZ, including: B. C. any disturbance for which an Earth Excavation permit issued under RSA 155-E (soil and gravel mining) is required. 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 or alteration of a parking lot or way including a driveway on a portion of the premises where removal occurs. any placement or removal of fill excepting that which is incidental to agricultural or silvacultural activities, normal landscaping or minor topographical adjustment.

D.

Plymouth, N.H., Zoning Ordinance art. VII,

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