Town of Carroll snatches zoning victory from the jaws of defeatBy PAT GROSSMITH
New Hampshire Union Leader
January 30. 2013 12:24PM
CONCORD - A Carroll gravel pit owner suffered a surprise loss Wednesday when the Supreme Court reversed itself and handed the town of Carroll a win in a zoning variance dispute.
The case of Town of Carroll v. William Rines will actually go back to Coos County Superior Court for further hearing on issues including whether Rines constructed a building, which, if he did, would allow him to remove gravel for the project without the need of a zoning variance.
Attorney H. Bernard Waugh Jr. of Lebanon, who represented the town, said as far as he knows no building was ever constructed. The court case involved the removal of material for use in a highway construction project.
The ruling comes after the Supreme Court on Nov. 9 decided Rines did not need a zoning variance, reversing Judge Timothy J. Vaughan's decision that he needed one under Carroll's zoning regulations.
The Supreme Court, however, later rescinded the November ruling after Waugh filed a motion for reconsideration. The original order said excavations for highway projects are "permit exempt" under state statutes. The purpose of the state laws, the court explained, was to increase the supply of construction materials and decrease the cost of roads and other government infrastructure to the public by curtailing simultaneous state and local regulations of the same activity.
Waugh, in his motion for reconsideration, pointed out another section of state law that says excavation shall not be exempt from local zoning or other applicable ordinances unless the state Transportation Appeals Board, after a hearing, grants the Department of Transportation or its agent an exemption from local zoning regulations relative to the excavation..."
That didn't happen in this case, Waugh said.
The Supreme Court, in Wednesday's decision, agreed with Waugh, reversing its original decision that gave victory to Rines.
The New Hampshire Union Leader was unable to reach Attorney Bruce J. Marshall, who represented Rines, for comment.
Waugh said the decision involves a "fairly large" gravel pit just north of the Carroll Town Hall located in the Residential Business District (R-B). About 10 years ago, a prior owner obtained a variance to remove gravel from the property. And Rines, he said, also obtained a variance in 2007-08 for the gravel operation.
Rines owns two lots and controls two additional lots for excavation. He subdivided the two lots and then began excavating them without obtaining a variance, according to the Supreme Court decision. Waugh said Rines decided he did not need a variance.
In October 2009, the town filed a petition to stop him from excavating on all four lots, maintaining he was in violation of both state law and town regulations. In December 2009, the town and Rines agreed he would not excavate pending the outcome of the lawsuit, unless he obtained a permit from the planning board, a variance and posted required bonds.
The court said after he made the agreement, Rines continued to removed previously excavated, stockpiled material from the lots for use on highway projects.
In the spring of 2010, he obtained planning board approval to subdivide the two lots he owns and then began excavating them but stopped after a court order ruled against him. The lower court ruling said the type of excavation he was doing was exempt from the state permitting requirements, but he still needed a variance from the town.