Jane Elwell, owner of Silver Scone Teas, speaks with one of her representatives during a court hearing. (Photo by Ashley Saari, Monadnock Ledger-Transcript)
Neighbors who have been appealing the approval of a tea party business in New Ipswich’s Village District have had one of their appeals dismissed by Hillsborough Superior Court – North.
On Nov. 20, the court issued a decision affirming the Planning Board’s original decision to approve Silver Scone Teas and dismissing the appeal. Also recently dismissed was another appeal brought to the state’s Housing Appeals Board.
Nancy Clark, one of the group of plaintiffs, who is also acting as the group’s attorney, said they will continue their appeals on both cases.
“We will be appealing both to the NH Supreme Court,” Clark stated. “ I think it’s important to note that the opinion criticized my legal arguments as ‘scattershot’ and without merit; however, the HAB failed to address my legal arguments individually, which makes the opinion illegal on its face.”
The Superior Court dealt with the approval of a site plan application approved by the Planning Board for Silver Scone, to operate out of owner Jane Elwell’s historic home on River Road in New Ipswich. The neighbors appealing the decision had three main arguments: that the septic plan was undersized, that the stormwater drainage plan was insufficient and that the Planning Board accepted the plan as complete despite several missing elements.
The court found in all three points that the Planning Board had not erred sufficiently to grant the appeal and overturn the approval.
On the matter of the septic plan, the plaintiffs argued that the plan was undersized by at least 100 gallons per day and didn’t account for potential employees. The town, along with Elwell as an intervenor, argued that the septic plan is outside the board’s purview, and it accepted and lawfully approved the application since the plan was approved by the Department of Environmental Services.
The court found that the DES approval was sufficient for the board to make its decision, particularly as the business is intended to be used as a residence the vast majority of the time, with commercial events limited by the conditions of approval to four days per month, and that the surge capacity of the system well exceeded the business’s use.
Plaintiffs also argued that the stormwater plan did not include supporting calculations to show it could accommodate a 10-year storm. The town argued that those calculations weren’t necessary because the plan wouldn’t significantly alter existing drainage problems, and that the plan complied with town regulations.
The court found that the plaintiffs’ argument misconstrued the regulations, which state that engineering calculations must be included if the project will “significantly alter the drainage pattern and footprint.”
The court found the Planning Board had considered and discussed the stormwater drainage plan, and heard from a qualified engineer about the plan’s compliance with requisite local regulations.
Lastly, the plaintiffs argued the board should not have found the application complete without certain documents, including a stormwater drainage plan and a waived requirement for stamped engineering plans. The plaintiffs argued they were prejudiced by the board’s vote to find the application complete, because they did not have time to adequately prepare and review Silver Scone’s late-submitted documents.
The court found the record demonstrated Silver Scones’ initial project did not require a stormwater drainage plan, and otherwise received proper waivers for documentation not submitted.
“Thus, at that time, the Planning Board had all necessary information to begin review of the application, which is all that is required for finding an application complete,” the court ruled.
The court found the plaintiffs did not demonstrate how the lack of documentation hindered their participation in the case, noting that the board held hearings over the course of four months.
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