556 A.2d 755 (N.H. 1989), 87-434, Town of Wolfeboro (Planning Bd.) v. Smith

Docket Nº:87-434.
Citation:556 A.2d 755, 131 N.H. 449
Opinion Judge:JOHNSON, J.
Party Name:TOWN OF WOLFEBORO (PLANNING BOARD) v. Charles H. SMITH et al.
Attorney:Barto and Puffer P.A., Concord (Mark H. Puffer on the brief and orally), for plaintiff., Frederic L. Cox, Wolfeboro, and Pamela D. Albee, Ossipee (Pamela D. Albee on the brief and orally), for defendants, Charles H. Smith, Richard D. Kourian and Everett S. Albee. Barto and Puffer P.A., of Concor...
Judge Panel:All concurred.
Case Date:March 06, 1989
Court:Supreme Court of New Hampshire

Page 755

556 A.2d 755 (N.H. 1989)

131 N.H. 449

TOWN OF WOLFEBORO (PLANNING BOARD)

v.

Charles H. SMITH et al.

No. 87-434.

Supreme Court of New Hampshire.

March 6, 1989

Rehearing Denied April 4, 1989.

[131 N.H. 450] Barto and Puffer P.A., Concord (Mark H. Puffer on the brief and orally), for plaintiff.

Frederic L. Cox, Wolfeboro, and Pamela D. Albee, Ossipee (Pamela D. Albee on the brief and orally), for defendants, Charles H. Smith, Richard D. Kourian and Everett S. Albee.

[131 N.H. 451] JOHNSON, Justice.

The plaintiff, Town of Wolfeboro (Planning Board) (hereinafter the Town), appeals from an order of the Superior Court (Dickson, J.) denying the imposition of a cease and desist order, based on its finding, upon an agreed statement of facts, that the defendants were entitled to continue excavating their property, under Laws 1979, 481:3, the grandfather clause of RSA chapter 155-E. We reverse and remand.

Page 756

The defendants are the owners of approximately thirty-five acres of land located in Wolfeboro. Since 1950, when previous owners began excavating the property, an excavation pit has been continuously operated. On August 24, 1979, RSA chapter 155-E took effect. This statute requires owners to obtain a permit before their property can be excavated. RSA 155-E:2. Laws 1979, 481:3, however, allows the owner of an "existing excavation" to "continue such existing excavation" without a permit.

On the effective date of RSA chapter 155-E, approximately eight acres of the land now owned by the defendants had been excavated. By October 14, 1983, the date on which the defendants acquired title to the property, ten acres had been excavated. Additional excavation continued after the current owners acquired the property. There currently remain approximately ten acres of the total property to be excavated. Such excavation, according to the parties, will take two to five years to complete.

There has been some previous activity on the part of the land not yet excavated. Prior to the present ownership, the entire parcel was timbered twice, once in 1949 or 1950, and once about 1965. There was no agreement between the parties regarding the intent of the prior timbering activity as it may have related to plans to excavate. The defendants attempted, according to an unrebutted affidavit of plaintiff's counsel, to insert into the agreed statement of facts a statement as to the purpose of the timbering operations. Plaintiff's counsel objected, and the defendants' counsel agreed to delete the statement as to purpose or intent. Sometime after October 14, 1983, the present owners cut trees and brush, removed stumps and topsoil and spread manure to create topsoil for reclamation purposes over the entire unexcavated parcel. It was agreed that this activity was undertaken by the defendants in order to facilitate the excavation of sand on the property which they had purchased.

Subsequent to requesting the defendants to apply for a permit in accordance with RSA chapter 155-E, the Town filed a petition for a cease and desist order against the defendants. In its petition, the Town requested the court to enjoin the defendants temporarily and permanently from excavating their property without first [131 N.H. 452] obtaining a permit. On August 13, 1987, the trial court ruled that the defendants were entitled under Laws 1979, 481:3, to continue their excavation operations over the entire parcel of land owned by the defendants, without first obtaining a permit. The court found from the agreed statement of facts that "the defendants and predecessors in title manifested an intention to excavate the entire lot and in fact have proceeded to do just that. The plaintiff has failed to convince the court otherwise and has failed to convince the court why such extraordinary relief should be granted." The trial court also found, in response to plaintiff's requests for findings of fact, that the "size of the land area which is being excavated, or which has been excavated, ... has increased substantially since August 24, 1979," that the "location of the excavation or excavations on defendants' property has changed substantially," and that the "rate of removal of earth from the defendants' premises since defendants' [sic] purchased the property in October, 1983, has increased substantially as compared to August 24, 1979." On August 25, 1987, the Town filed a motion for reconsideration, which was denied. This appeal followed.

There is no dispute that the excavation of earth for commercial purposes is a permitted use under the Wolfeboro zoning ordinance. The sole issue before the court, as agreed by the parties, is whether the grandfather clause of RSA chapter 155-E, as set forth in Laws 1979, 481:3, entitles the defendants to excavate the remaining approximately ten acres of land...

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