Superior Court Judge Charles Temple heard arguments Tuesday from both sides in an alleged contempt case in which neighbors to the Silver Scone Teas business allege that owner Jane Elwell violated a court order by making improvements to a parking area on her property.

Silver Scone Teas is in the midst of an appeal process with a group of abutters and neighbors who are protesting town approvals related to the business, including Planning Board approval of her site plan. As part of that appeal, the Nashua Superior Court ordered a stay on all Planning Board proceedings.

According to Nancy Clark, the lawyer representing the abutters, Elwell violated that order when she took down several trees in the parking area, removed the stumps and graded the surface. Clark alleged that the Town of New Ipswich failed to enforce the court stay by not issuing Elwell a cease-and-desist order or otherwise stopping the work.

Clark said Elwell’s arguments that the work was for her own personal use, including cutting trees for firewood and doing regular maintenance to the existing parking lot to accommodate parking for her daughter’s upcoming wedding, “is simply not credible.” Clark argued that one of the trees removed was a pine, which she said was not suitable for firewood, and contested Elwell’s claim that the parking lot was pre-existing.

“Elwell has failed to produce a single shred of evidence that any car has ever been parked on the property where they are claiming that the parking lot exists,” Clark said.

Clark argued that the Elwell had shown a history of skirting the law, including operating the business without the proper permits in the first place before the town issued a cease-and-desist order in 2022, and holding several events after being issued a cease-and-desist.

“As I’ve detailed extensively, over the course of more than two years, Elwell’s behavior has been nothing short of defying authority and avoiding the consequences of law,” Clark said.

Robert Fasanella, the attorney representing Elwell in the case, said Elwell was not originally aware of the planning and zoning processes required, and moved to obtain those approvals once aware. While he admitted she had held gatherings since ordered to cease and desist, he maintained that Elwell had not charged for those events, and had the gatherings for friends and supporters.

Fasanella argued that the clearing, while it has not existed as a "parking lot,” had been used as a landing area for logging operations, during which time it would have likely housed vehicles, and has been used by Elwell to park vehicles, her tractor and a trailer.

Clark also contested the argument that the work being done on the parking lot was minor or incidental. The Superior Court ordered a stay on proceedings related to the appeal of the New Ipswich Planning Board decision to grant a site plan approval, Clark said, and improvements to the parking area were among the items approved by the board.

“The work completed in July and August is exactly the work that is included on the site plan,” Clark said.

Fasanella argued that Elwell had certain rights to use her property, and that stopping any and all improvements to the property was an overreach. He said the plaintiffs had not shown the requirements for an injunction to prevent any activity on the property.

Fasanella argued that the work done in the parking area was far short of the total work approved during the site plan approval, which included a rain garden to mitigate water runoff, improving a path from the parking area to the back of Elwell’s property and lighting. He said none of those elements have been constructed, and the work that has been done – cutting trees and what he characterized as minor topographical improvements – were allowed activities under the town’s ordinances. He said there was no intent to construct the entirety of the proposed parking lot.

“The petitioner understands that there is a stay on the proceedings that are under appeal from the Planning Board, and the petitioner will not proceed with the full-scale construction of this parking lot,” Fasanella said.

Fasanella said that the series of appeals filed by neighbors was not made in good faith, but rather as a tactic to drive Elwell out of business, despite her attempts to work through the town’s planning and zoning approvals processes.

“We would argue, your honor, given the litigious number of appeals taken by the neighbors, to the type of operation that is proposed – a simple tea party, four days per month, two hours per event – is beyond what one could reasonably consider a justifiable appeal. The appeals that have been taken, including this particular hearing, show the vexatious, continuing abuse of process that the neighbors have conducted, with the ulterior motive of simply shutting down the business. That is their true goal,” Fasanella said.

Madeline Osbon, an attorney with Upton & Hatfield representing the Town of New Ipswich in Tuesday’s hearing, called the suit “frivolous.”

“The town maintains it is in compliance with the court’s order, and believes the motion against the town is frivolous, which we explained to the petitioners’ counsel when the town was threatened with a motion for contempt if we did not her order to send a cease-and-desist,” Osbon said.

Osbon said the correct enforcement for the authority is the court, and that the town is responsible for only its own ordinances. Osbon said the town is not compelled to issue a  cease-and-desist notice, and that towns have discretion on when and if to enforce regulations.

“The town did not determine that a cease-and-desist order would be appropriate, given the activities taking place on the property,” Osbon said.

Temple questioned Fasanella whether the improvements to the lot were preliminary to the improvements that would eventually be taken, and Fasanella said they could be considered “very preliminary,” but minor in the scope of the total work.

Temple indicated he would not announce a decision immediately following the hearing, but expects to render an expedited decision on the matter.