Preview:

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 ___________________________ Strafford No. 2009-126 PIKE INDUSTRIES, INC. & a. v. BRIAN WOODWARD & a. Argued: January 13, 2010 Opinion Issued: May 7, 2010 Shaheen & Gordon, P.A., of Concord (Karyn P. Forbes and Arpiar G. Saunders, Jr. on the brief, and Ms. Forbes orally), for appellees, Pike Industries, Inc. and Redimix Companies, Inc. Casassa and Ryan, of Hampton (John J. Ryan on the brief and orally), for the appellants. Wyskiel, Boc, Tillinghast & Bolduc, P.A., of Dover (Christopher A. Wyskiel on the brief and orally), for the Town of Madbury. DUGGAN, J. The appellants, Brian Woodward and other abutters of Pike Industries, Inc.'s (Pike) asphalt plant, appeal a ruling of the Superior Court (Tucker, J.) reversing the decision of the Town of Madbury Zoning Board of

Adjustment (ZBA) that Pike had discontinued its nonconforming use of its plant. We affirm in part and reverse in part. The following facts are drawn from the administrative record. Beginning prior to 1960, Pike has continuously operated an asphalt production plant in Madbury. In the mid-1960s, the town promulgated an ordinance that zoned the area surrounding the plant for residential and agricultural use, making the plant a pre-existing nonconforming use. After that, Pike continued to operate the plant on a seasonal basis from mid-spring through November or December. During the winter months, Pike performed equipment maintenance, paid electric bills generated by the plant, and submitted bids for future work for the plant. After producing a "batch" of asphalt on October 17, 2005, Pike suspended its seasonal operations, as was customary. Between October 2005 and November 2006, Pike made electrical and operational repairs to the plant, engaged in emissions training for plant staff, bought safety equipment for the plant, worked on mix plans exclusively for the plant, and submitted mandatory site plan reports to the State. Overall, Pike spent $24,596.32 in maintenance and repair costs during this thirteen-month period. In addition, Pike continued to advertise asphalt production at the Madbury plant on its website, included the Madbury plant in its price list, and submitted bids to municipalities for projects involving asphalt to be produced at the Madbury plant. Although Pike was prepared to begin asphalt production at any time, it did not produce any asphalt at the Madbury plant between October 2005 and August 2007. Pike had other facilities that were more suitable for the bids it received during that time period. In April 2007, Redimix Companies, Inc. (Redimix), Pike's sister entity, filed a site plan application with the Madbury Planning Board proposing to replace the asphalt plant with a concrete batch facility. In May 2007, the planning board held a hearing on the site plan application, at which it was revealed that the asphalt plant had not produced any asphalt for two years. In June 2007, the abutters submitted a letter to the planning board arguing that the nonconforming use had been discontinued under the relevant town ordinance. The Madbury Zoning Ordinance (ordinance) provides, in pertinent part, that "[w]henever a non-conforming use has been discontinued for more than one year for any reason, such non-conforming use shall not thereafter be re-established, and the future use of the property shall be in conformity with the provisions of this Ordinance." Madbury Zoning Ordinance art. XIII,

Download 2009-126, Pike Industries, Inc. & a. v. Brian Woodward & a..pdf

New Hampshire Law