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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham

No. 96-261

EUGENE A. CORMIER, TRUSTEE OF TERRA REALTY TRUST

v.

TOWN OF DANVILLE ZONING BOARD OF ADJUSTMENT

May 14, 1998

Sheehan Phinney Bass + Green, P.A., of Manchester (Peter F. Kearns and Thomas M. Closson on the brief, and Mr. Kearns orally), for the plaintiff.

Loughlin & Wade, of Portsmouth (Peter J. Loughlin on the brief and orally), for the defendant.

JOHNSON, J. The plaintiff, Eugene A. Cormier, Trustee of Terra Realty Trust, appeals from the Superior Court's (Coffey, J.) denial of three consolidated petitions for appeal from decisions of the defendant, the Town of Danville Zoning Board of Adjustment (board). We reverse in part, vacate in part, and remand.

The Danville Zoning Ordinance (ordinance) prohibits excavation in Danville except by special exception obtained from the board through a procedure outlined in the ordinance. In April 1993, the plaintiff and a co-trustee filed an application for special exception with the board to obtain permission to conduct commercial sand and gravel excavation on a parcel of land in Danville owned by Terra Realty Trust (trust). The board denied the application and the plaintiff appealed to the superior court. See RSA 677:4 (1986) (amended 1994, 1995, 1996). The plaintiff filed a second application with respect to the same parcel in March 1994. The board denied the second application and the plaintiff filed a second appeal, which was consolidated with the prior appeal.

Following an in-chambers conference with counsel, the Superior Court (Goode, J.) issued a remand order that directed the plaintiff to submit to the board a revised application containing two proposals: "(a) application without any excavation below a point 3' above the seasonal high water table [part A]; (b) application with excavation creating up to 3 separate ponds below the seasonal high water table [part B]." The order also required the board to expeditiously review the application and provided that the plaintiff could challenge an adverse ruling of the board in an appeal that could be consolidated with the prior two applications.

The board denied part A of the revised application because it found that the proposed use of Tuckertown Road for access to the excavation site would be detrimental to the historic and natural character of Tuckertown Road; be detrimental to the public health, safety, and welfare; and constitute a nuisance. Based upon a 1995 amendment to the ordinance that prohibited excavation below three feet above the seasonal high water mark, the board declined to consider part B of the revised application.

The plaintiff again appealed to the trial court, which held a hearing and conducted a view of the property. Agreeing with the board's finding that the proposal is incompatible with and detrimental to the historic and natural character of Tuckertown Road, the trial court denied the plaintiff's appeal without examining the other reasons for the board's denial. The court also found that although the board's refusal to consider part B of the application was questionable in light of the date of the plaintiff's applications and the court's remand order, the error, if any, was harmless because part B also proposed to use Tuckertown Road for access. The plaintiff challenges both rulings on appeal.

We will uphold the trial court's rulings unless they are not supported by the evidence or are erroneous as a matter of law. See Belluscio v. Town of Westmoreland, 139 N.H. 55, 56, 648 A.2d 211, 212 (1994). Under the applicable provisions of the ordinance, a special exception must be granted if the board finds:

a. That the excavation and/or removal is compatible, and not detrimental or injurious to any one of the following:

1) existing residential or commercial retail and service land uses as defined in Zoning Ordinance, in the general area of the proposed excavation;

2) public health, safety and welfare;

3) natural features, i.e., including but not limited to, groundwater, surface water drainage, wetlands;

4) historic landmarks or other historic structures.

b. The excavation will not damage a known aquifer

. . . .

c. That the excavation will not constitute a nuisance due to any and all forms of hazards and/or disturbances.

Danville, N.H. Zoning Ordinance art. V,