Agenda - Planning Commission - 04/07/2005

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Page 8 -- February 25, 2005 that time. The city's attempt to enforce the restricnon only after Performance had begun to construct the new sign was untimely and prevented Performance from seeking redress before it had 'undergone the expense and effort to exercise its rights under the permit. see also: Spalding v. Coutson, 770 N.E. 2d 2060 (2001). see also: McClorey v. Hamilton County Board of Elections, 720 N.E. 2d 954 (1998). Ordinance --Town approves large retail store Neighbor argues town shouM take store size into account Citation: Fox v. Town of Greenland, Supreme Court of New Hampshire, Nol 2004-103 (2004) NEW HAMPSHIRE (12/29/04) -- Packard Development LLC applied for a spe- cial exception to construct and operate a 300,000-square-foot retail sales mai1 on industrial-zoned property. According to the local ordinance, retail sales or service stores were allowed on industrial-zoned property. After several public heatings, the Town of Greenland Zoning Board of Adjustment granted Packard a special exception for the project. Fox, a neighboring property owner, sued. The court ruled in favor of the board. Fox appealed, arguing Packard's project should not have been treated as a retail sales/service store allowable in an industrial zone. She claimed the size of the proposed shopping center greatly exceeded the size of existing commercial properties in Greenland and, thus, could not have been intended by the framers of the town's zoning ordinance. DECISION:Affirmed, The board correctly approved the shopping center. The ordinance did not distinguish between retail sales or service facilities based on the size of the store. Likewise, the common definition of "retail" focused on the nature of the transaction between the seller and the purchaser, not the size of the business or commercial enterprise. Consequently, "retail" under the ordinance encompassed the type of re- tail stores proposed by Packard. Furthermore, the size of the proposed shop- ping center was taken into account in other ways in the special exception application, such as the impact on surrounding neighborhoods, increase in demand on municipal services, and increases in the level of traffic congestion in the vicinity. Ultimately, the board acted reasonably in treating Packard's proposed use as a "retail sales/service" use. see also: Bayson Properties v. Ci~. of £ebanon, 834 A.2d 202 (2003). see also: Du.ffv v. City of Dover, 818 A.2d 1251 (2003). t46 © 2005 Quinlan Publishing Group. Any reproduction is prohibited, For more information please call (617) 542-0048.