Brewster v. Town of Amherst

No. 97-912 (742 A.2d 121) (N.H. December 3, 1999)

ELR Digest

The court upholds a town planning board's decision to revoke its site plan approval of a soccer facility located on a floodplain containing wetlands. The court first holds that the violations were material. The owners allowed soccer games to be played during restricted periods and left equipment and portable toilets on the playing area during high water periods in violation of the terms of the site approval. The court next holds that the board's notice of the revocation satisfied due process. The board complied with the statutory requirements to notify the owners, and the board properly notified the owners of the circumstances that led to its finding that the site plan was violated. Moreover, a typographical error regarding the subsection under which the owners were charged did not deprive them of notice or an opportunity to be heard. The court also holds that the board's revocation of the owner's site plan approval was lawful. The record reveals a pattern of complaints and alleged violations, followed by hearings before the board and promises of remedial action by the owners, only to recur again. Last, the court declines to hear the owner's argument that, by allowing only four minutes to speak at the planning board hearing on revocation, the board denied them due process because the issue was not preserved for review.

The full text of this opinion is available from ELR (7 pp., ELR Order No. L-140).

Counsel for Plaintiffs
Malcolm R. McNeill Jr.
McNeill & Taylor
180 Locust St., Dover NH 03820
(603) 749-5535

Counsel for Defendants
William R. Drescher
Drescher & Domko
21 Emerson Dr., Milford NH 03055
(603) 673-9400

[30 ELR 20224]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]