New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

When a term is not defined in a zoning ordinance, the plain language of the ordinance and common definition of the term will be used to interpret its meaning

Batchelder v. Plymouth Zoning Board of Adjustment
No. 2008-847, 5/7/2010

A developer sought approval for construction of a large retail outlet on a 77-acre site in Plymouth. The parcel was located in a 100-year floodplain, and was also limited by an overlay district called the “environmentally sensitive zone,” which limited activities within 500 feet of the Baker River. After nearly two years of work in the planning board, a site plan was approved. An essential aspect of the plan was a requirement that the buildings be elevated to a point above the 100-year floodplain level, using materials found on other portions of the site.

An abutter appealed this approval to the local ZBA, arguing that the movement of over 200,000 cubic yards of earth violated the provisions of the overlay district because the movement of such a large quantity of earth could not be termed “incidental to construction.” The ZBA rejected the argument, and, on appeal, the superior court affirmed the ZBA decision. The abutter appealed to the Supreme Court.

The key issue was the meaning of the term “incidental” as used in the ordinance. The ordinance did not include a definition for the term. The Court turned to the language of the ordinance as a whole, and to the common definition of the word. The word “incidental” is usually defined as something which is subordinate to something of greater importance. Here, the movement of earth was not commercial excavation and was of less importance than construction of buildings, and, thus, “incidental” to construction on the site. The lesson for land use boards is to take care during the drafting process to adequately define all important terms. In the absence of such definitions, the common definition of the words in ordinary usage will be applied.

Please be advised that the foregoing case summary is based upon a New Hampshire Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC’s annual conference. For your copy of the 2009 Court Update, call 800.852.3358, ext. 100.

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