Agenda - Planning Commission - 05/06/2010

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Zoning Bulletin March 25, 2010 ~ Volume 4 ~ No. 6 ( ~~ Case Note: The trial court had held that although the P & S Agree- ment was expired by the time of the appeal, JZ was, nevertheless, aggrieved. The court said this was because: the P & S Agreement "did not state that time was of the essence"; and "the. period of time that had passed was reasonable because the contingency for zoning approval contained in the [P & S] [A]greement contemplated that obtaining such approval c[ould] take a long period of time." The appellate court disagreed, noting that the P & S Agreement had not left the time period for obtaining zoning approval "open." Rather, the P & S Agreement had specifically provided that "the contract would not remain in effect for more than one year." Attorney Fees-Town successfully defends its determination that sandpit owners violated state excavation statute Town seeks award of attorney's fees related to that legal defense ( `~); Citation: Bedard v. Town of Alexandria, 2010 WL 455277 (N.H. 2010) This case addressed the issue of whether a town was entitled to at- torney's fees when it successfully defended its determination that sandpit owners violated a state excavation starute. The Background/Facts: Roger and Judith Bedazd owned and oper- ated asandpit in the town. Under the state statute (RSA 155-E:4-a, II.) that governs local regu- lation. of excavations (i.e., commercial taking of earth); excavation was pLOhibited within 50 feet of a "disapproving abutter's" property: Wesley Platts owned land abutting the Bedards' sandpit. Platts was a "disapproving abutter" for the purposes of the statute. ]n 2005, the town's Planning Board (the "Boazd°) informed the Be- dards that they had violated the 50-foot setback prohibition by excavat- ing within the setback area. Although the Bedazds had "disturbed mate- rials from and within the setback area, they did not remove such materi- als from the pit." "As a result of the [Bedazd]'s activities, the setback area contain[ed] a slope of baze dirt, approximately, forty-five degrees in grade, which [led] up through the sandpit to Platt's property line." The Bedards maintained that since they only moved and did not ie- move material from the sandpit, they did not "excavate" within the ~ meaning of the starute. The Bedards asked the trial court to declaze that -. "movement of the soil in the setback area does not constitute `excava- tion' within the meaning of RSA chapter 155-E." ® 2010 Thomson Reuters 47