San-Ken Homes, Inc.
Town of Sharon,
Issued the following order:
The petitioner, San-Ken Homes, Inc., appeals an order of the superior court upholding a decision of the Zoning Board of Adjustment (ZBA) for the respondent, the Town of Sharon (town), which denied an application for a special exception to excavate more than 1000 cubic yards of earth. The ZBA and trial court concluded that the proposed excavation violated a requirement under the town's Wetland Conservation District regulations to maintain "a natural woodland and/or vegetated buffer" (woodland/vegetated buffer). On appeal, the petitioner argues that the trial court erred by construing the woodland/vegetative buffer provision so as to conflict with a separate setback requirement under the town's Earth Excavations Regulations (excavation setback), and to prohibit the destruction and subsequent "reclamation" of a woodland/vegetative buffer. We affirm.
Judicial review in zoning appeals is limited. Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553, 555 (2011). The ZBA's findings of fact are prima facie lawful and reasonable, and the trial court will not set aside the ZBA's decision, absent errors of law, unless it is persuaded, by the balance of probabilities on the evidence before it, that the ZBA's decision is unlawful or unreasonable. Id.; RSA 677:6 (2008). We, in turn, will not overturn the trial court's order unless it is unsupported by the evidence or legally erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555. Since the construction of a zoning ordinance is a question of law, however, we review the trial court's interpretation of an ordinance de novo. Id.
The traditional rules of statutory construction govern our interpretation of municipal ordinances and regulations. See Ouellette v. Town of Kingston, 157 N.H. 604, 614 (2008). Thus, we generally construe an ordinance according to the common and approved usage of its language, and absent ambiguity, we determine legislative intent from the language of the ordinance itself. Pike Indus. v. Woodward, 160 N.H. 259, 262 (2010). We do not construe the words and phrases of an ordinance in isolation, however, but within the context of the overall regulatory scheme. See N.H. Resident Ltd. Partners of Lyme Timber Co. v. N.H. Dep't of Revenue Admin., 162 N.H. 98, 101 (2011). Moreover, in interpreting any ordinance, we are mindful that "all rules of statutory construction are subservient to the one that legislative intent must prevail if it can be reasonably discovered in the language used." State Employees Assoc. of N.H. v. N.H. Div. of Personnel, 158 N.H. 338, 346 (2009) (quotation omitted).
The record in this case establishes that the property at issue is surrounded on three sides by wetlands, including the Gridley River, and lies within the town's Wetland Conservation District. The town's zoning ordinance provides that "[i]n all cases where the Wetland Conservation District is superimposed over another zoning district in the [town], the most restrictive regulations shall apply." Sharon, N.H., Zoning and Building Ordinance art. V (A). The express purposes for the Wetland Conservation District regulations include preventing land uses that could contribute to the pollution of surface and ground water, preventing the alteration or destruction of wetlands, maintaining conservation corridors along rivers, streams, and other waterways, and protecting, preserving, and enhancing the aesthetic values associated with wetlands. Id. The ordinance sets forth certain limited uses that are permissible within the Wetland Conservation District, id. art. V (D), and imposes several setback requirements from any wetland boundary, id. art. V (E). At issue in this case is a setback of seventy-five feet for the "[m]aintenance of a natural woodland and/or vegetated buffer." Id. art. V (E)(9).
The town's planning board has also adopted site plan review regulations governing earth excavations. The goals of the regulations include protecting natural resources and the environment, and maintaining the aesthetic features of the town. Sharon, N.H., Earth Excavations Regulations § I (2010). The regulations specifically prohibit excavation projects "[w]here existing visual barriers would be removed, except to provide access to the site." Id. § VI(B). The regulations further provide:
No excavation shall be permitted within seventy-five (75) feet of any great pond, navigable river, or other standing body of water ten (10) acres or more in area, or within twenty-five (25) feet of any other stream, river or brook which normally flows throughout the year, or any naturally occurring standing body of water smaller than ten (10) acres, prime wetland as designated in accordance with RSA 482-A:15, I or any other wetland larger than five (5) acres as defined by the Wetlands Board.
Id. § VII(E).
In this case, the petitioner's application for a special exception sought to remove 108, 000 cubic yards of earth material from an esker approximately thirty-five feet in height and within seventy-five feet of the wetland boundaries. The proposed excavation would have lasted one-and-a-half years, and would have included the cutting of 40, 000 board feet of white pine and 1, 200 tons of whole tree chips from fourteen acres of the property. In the trial court, counsel for the town described the proposal as calling for the removal of the existing esker and the "clear-cutting" of land within the woodland/vegetated buffer. The petitioner did not contest the town's description of the project, but asserted that it would, nevertheless, "maintain" the woodland/vegetated buffer by restoring it following the project. According to the petitioner, the twenty-five foot excavation setback, not the woodland/vegetated buffer, governed the excavation.
The trial court disagreed with the petitioner's position, concluding that the woodland/vegetated buffer and the excavation setback were in conflict, and that the woodland/vegetated buffer, as the more restrictive regulation, controlled both under article V(A) of the zoning ordinance, and under RSA 155-E:11 (Supp. 2013). The trial court also reasoned that construing the term "maintenance" to allow the destruction and subsequent re-establishment of the woodland/vegetated buffer was inconsistent with the plain meaning of the term "maintenance" and the purposes of the Wetland Conservation District. On appeal, the petitioner argues that the trial court unreasonably interpreted the woodland/vegetated buffer and excavation setback provisions to conflict with one another, violating the statutory construction principle that statutory provisions addressing the same issue should be interpreted to avoid any conflict. The petitioner further argues that, because the woodland/vegetated buffer requirement contemplates the maintenance of either a natural woodland buffer or a vegetated buffer, the regulation contemplates the destruction of a natural woodland buffer, and the subsequent creation of a vegetated buffer. We disagree.
The plain meaning of "maintenance" is "the labor of keeping something . . . in a state of repair or efficiency; CARE, UPKEEP." Webster's Third New International Dictionary 1362 (unabridged ed. 2002). Nothing in the plain meaning of the term contemplates that an existing esker located within a woodland/vegetated buffer may be clear cut and removed over an extended period of time, and then re-planted with vegetation at some later date. Indeed, as the trial court correctly observed, construing "maintenance" in that manner is not only inconsistent with the term's plain and ordinary meaning, but places it at odds with the express purposes of the Wetland Conservation District.
Construing the woodland/vegetated buffer setback language according to its plain and ordinary meaning and within the context of the overall regulatory scheme, see N.H. Resident Ltd. Partners of Lyme Timber Co., 162 N.H. at 101; Pike Indus., 160 N.H. at 262, we conclude that the trial court properly determined that the woodland/vegetated buffer and the excavation setback, under the facts of the case, are in conflict, and that the woodland/vegetated buffer, as the more restrictive regulation, controls, Sharon, N.H., Zoning and Building Ordinances, art. V(A). Upon this record, we cannot say that the trial court's order was either unsupported by the evidence or legally erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555.
CONBOY, LYNN, and BASSETT, JJ., ...