Court denies contempt suit in Silver Scone case

  • Jane Elwell, owner of Silver Scone Teas, speaks with one of her representatives during the Aug. 29 court hearing. STAFF FILE PHOTO BY ASHLEY SAARI

Monadnock Ledger-Transcript
Published: 9/12/2023 11:34:11 AM

A Hillsborough Superior Court judge has ruled against a group of neighbors who filed a motion for contempt against the Town of New Ipswich, alleging the town allowed Silver Scone Teas owner Jane Elwell to make changes to a proposed parking lot unchecked.

Plaintiffs in the case, represented by Nancy Clark, are also appealing the New Ipswich Planning Board’s site plan approval of plans by Elwell to operate a tea party business out of her River Road home in the Village District. In June, the board approved the plans, with conditions previously imposed by the Zoning Board, including only allowing tea parties up to four times per month on the property and capping parties at 50 guests.

Elwell’s application included plans to upgrade an already-cleared area on her property that was previously used as a log landing to an unpaved parking lot. The neighbors appealed the approval to Nashua Superior Court, which issued an order that “proceedings upon the decision appealed from are stayed.” The parking lot was the main issue in the neighbors’ contempt filing, as they alleged that in defiance of the court’s order, Elwell had begun work on the parking lot, specifically taking down multiple trees in the parking area, removing stumps and removing topsoil. The plaintiffs notified town officials, including the code inspector and Select Board, but alleged the town did not act to stop the work.

During an Aug. 29 hearing on the contempt filings, Elwell’s lawyer, Robert Fasanella, claimed that the trees taken down were done so for firewood, and regular maintenance was done on the lot in preparation for Elwell’s daughter’s wedding, which is set to take place on the property. He argued this was well short of the entirety of the plan for improvements to the parking area.

Madeline Osbon, an attorney with Upton & Hatfield, representing the Town of New Ipswich, argued that the town did not find that the work fell into the realm of needing enforcement, that the town has discretion in deciding whether to issue cease-and-desist orders and that if there was a need to enforce the court’s order, it should be done though the court, not the town.

In his decision, Judge Charles Temple ruled that a contempt filing wasn’t appropriate, as the Superior Court order “was not and is not nearly as comprehensive as the plaintiffs read it to be.” Temple clarified that the order was that “proceedings upon the decision appealed from are stayed,” meaning specifically business conducted by an official body -- in this case, the Planning Board.

“...[T]he Certiorari Order did not purport to bar or enjoin the applicant from using or improving her property during the pendency of this appeal,” Temple wrote. “The Certiorari Order also did not require the Town to prohibit the applicant from doing so. As the applicant was not prohibited by a court order from altering her property, nor was the Town directed by a court order to prohibit the applicant from making such alterations, it follows that neither party failed to comply with a court order. As such, there is simply nothing before the Court that would warrant a contempt finding.”

The court further found that while the plaintiffs alleged Elwell’s actions violate New Ipswich land-use regulations, they did not cite specific regulations in their motions and that even if they had, relief from the court wouldn’t be the correct course of action – noting that regulation violations are a matter for the town and its boards to address in a first instance.

In addition to denying both of the plaintiffs’ motions for contempt, the court also lifted an order issued on Aug. 16 prohibiting further construction activity at Elwell’s property during the course of the contempt ruling. The court also cautioned the plaintiffs against frivolous filings, an accusation leveled at the group by the attorneys representing Elwell and the town during the contempt hearing. While the court stopped short of agreeing to that sentiment, Temple wrote that contempt motions “border on frivolous.”

Temple declined to award attorney fees to any of the three parties in the suit, but cautioned the plaintiffs.

“The plaintiffs and their attorney are, however, warned that any further motions of such a dubious nature during the pendency of this action may lead to sanctions,” Temple wrote.

Ashley Saari can be reached at 603-924-7172, Ext. 244 or She’s on X @AshleySaariMLT.

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