2006-646, PHILIP AUGER & a. v. TOWN OF STRAFFORD & a.

affirm in part, reverse in part, vacate in part and remand. cross-appeals the trial court’s remand of a wetlands issue to the board. We Strafford, that approved Graystone’s proposed CDS and yield plan. Graystone

Builders, Inc. (Graystone), appeal an order of the Superior Court (

affirming a decision of the planning board for the defendant, the Town of

development subdivision (CDS) proposed by the intervenor, Graystone DALIANIS, J. The plaintiffs, abutters to and neighbors of a conservation

Panciocco on the brief, and Mr. Michael orally), for the intervenor. Wiggin & Nourie, P.A., of Manchester (Gregory E. Michael and Patricia M.

Whitelaw on the memorandum of law), for the defendant. Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell and Judith E.

to press. Errors may be reported by E-mail at the following address: Michael L. Donovan, of Concord, by brief and orally, for the plaintiffs.

editorial errors in order that corrections may be made before the opinion goes No. 2006-646 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as would be less than a total of 20,000 square feet of wetlands impact.”

Bureau. According to the relevant subdivision regulation, “[i]n most cases this the New Hampshire Department of Environmental Services (DES) Wetlands the total proposed wetlands disturbance in accordance with requirements of impact. impact can be assessed by the Board.” Further, the yield plan must minimize erroneous.

absent unreasonableness or an identified error of law. Id. The appealing party board as prima facie lawful and reasonable and cannot set aside its decision Id. The superior court is obligated to treat the factual findings of the planning Superior court review of decisions of planning boards is equally limited. serviced by a loop road and shows less than p. 2 20,000 square feet of wetlands all wetlands and proposed disturbances in sufficient enou[g]h detail so that the by a permanent conservation easement. The yield plan contains eighteen lots Id. building lots serviced by a cul-de-sac, and 31.8 acres of open space burdened decision on appeal unless it is unsupported by the evidence or legally approved the CDS on August 11, 2005. The proposed CDS contains seventeen Humma Enters. v. Town of Tilton, 151 N.H. 75, 79 (2004). We will uphold the Our review of the superior court’s decision is deferential. Summa

only a wetlands issue. This appeal and cross-appeal followed. the superior court. The trial court substantially affirmed the board, remanding subdivision requirements.” The plaintiffs appealed the board’s approval of the yield plan and CDS to

roadway rights of way, property lines, wetlands and lot areas. It must “show state and local requirements. Additionally, a yield plan must depict the that could be built in a conventional development that meets all applicable The board approved the yield plan on March 4, p. 2 2004, and conditionally Graystone submitted a proposed yield plan and a CDS for the property.

requirements specific to such developments as well as “all other zoning and as . . . land to be kept permanently unbuilt upon.” A CDS must meet certain dwellings are allowed on reduced lot sizes and a portion of the tract is set aside sizes and housing placement.” A CDS “allows a residential subdivision where

board may require a “yield plan.” A yield plan shows the number of houses To determine the number of houses that may be built in a CDS, the

natural, environmental, and historic land features by permitting variation in lot CDS is a “method of subdivision design that provides for the protection of broad expanse of wetlands.” Pursuant to the Strafford zoning ordinance, a a sixty-five-acre lot in Strafford, which contains, according to the trial court, “a The record reveals the following: Graystone proposes to build a CDS on remand for further proceedings consistent with this opinion.

p. 3 decision to uphold the board’s approval of Graystone’s proposed CDS and

court erred by upholding this. We, therefore, reverse the superior court’s that the board erred by waiving the ten-lot requirement and that the superior Absent any evidence of “undue hardship or injustice” to Graystone, we hold

circumstances. We disagree. plan. The trial court ruled that the waiver was reasonable under the

the trial court found otherwise, its finding is not supported by the record. would cause “undue hardship or injustice” to Graystone. To the extent that because it preferred the cul-de-sac design, not because the loop road design the sole reason that the board decided to waive the ten-lot requirement was

configuration in the proposed CDS to the loop road configuration in the yield waiver would not be contrary to the spirit and intent of the regulations.” to waive the ten-lot requirement because it preferred the cul-de-sac “strict conformity would pose an unnecessary hardship to the applicant and which allows a planning board to adopt regulations providing for waiver where

hardship to Graystone, much less “undue hardship.” The record reveals that no evidence before it that the loop road configuration would cause any the board erred by waiving the ten-lot requirement. We agree. The board had road configuration would cause “undue hardship or injustice” to Graystone, The plaintiffs contend that, because there is no evidence that the loop

de-sac that services seventeen lots. The record reveals that the board decided more than ten lots. The CDS approved by the board, however, contains a cul- be adversely affected.” This is consistent with RSA 674:36, II(n) (Supp. 2006), the town’s subdivision regulations states that a dead-end street may service no and “the spirit of these regulations and public convenience and welfare will not requirement that there be no more than ten lots on a dead-end street. One of regulations would cause undue hardship or injustice to the owner of the land” that substantially conforms to the regulations where “strict conformity to these The board’s subdivision regulations permit the board to approve a plan

that the trial court erred when it affirmed the board’s decision to waive a With respect to the board’s approval of the CDS, the plaintiffs first argue

A. Waiver of Ten-Lot Requirement

I. Approval of CDS

have been reasonably based. Id. findings, but to determine whether there is evidence upon which they could superior court is not to determine whether it agrees with the planning board’s probabilities, the board’s decision was unreasonable. Id. The review by the bears the burden of persuading the superior court that, by the balance of requirement would entail.” p. 4 fiscal and administrative burdens that the additional or substitute procedural

finally, the Government’s interest, including the function involved and the

they were constitutionally entitled. The board member at issue missed only The record reveals that the plaintiffs received all of the process to which

cite any provision under the State Constitution. argument under the Federal Constitution only as the plaintiffs have failed to probable value, if any, of additional or substitute procedural safeguards; and he missed two of the multiple hearings on the proposal. We address this erroneous deprivation of such interest through the procedures used, and the interest that will be affected by the official action; second, the risk of an a party’s due process claim requires review of three factors: “First, the private failure to conduct this review violated their procedural due process rights. Eldridge, 424 U.S. 319, 332 (1976). Under the Federal Constitution, analyzing any authority to support their argument, the plaintiffs contend that the board’s of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. nearby lake to which the plaintiffs have easement rights. Absent citation to which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning promise to review the environmental impact of the proposed CDS upon a “Procedural due process imposes constraints on governmental decisions

violated because a board member voted upon the proposed CDS even though Next, the plaintiffs argue that their procedural due process rights were

C. Board Member Absence

circumstances, we decline to review their argument. the board’s approval of the proposed CDS because the board reneged upon its impacts on [the lake] as part of their due process rights.” Under these [any] authority guaranteeing them independent engineering review of the they claim is at issue. Nor, as the trial court observed, have they “pointed to (2006). The plaintiffs have not sufficiently stated the legally protected interest for our review. See In the Matter of Bazemore & Jack, 153 N.H. 351, 356 The plaintiffs, however, have failed to develop this argument sufficiently

The plaintiffs next assert that the superior court erred when it affirmed

B. Study of Environmental Impact on Lake

Marvin Lumber & Cedar Co., 152 N.H. 813, 847 (2005). arguments inasmuch as they are likely to arise upon remand. See Kelleher v. In the interests of judicial economy, we address the parties’ other proposed disturbances and impact on those wetlands. Accordingly, it ruled

p. 5 the location of the wetlands, it did not contain detailed information about the requirements. The superior court found that although the yield plan depicted wetlands disturbance would be minimized in accordance with DES that the board could assess the impact, and to show that the proposed

the plan to show all wetlands and proposed disturbances in sufficient detail so plan did not comply with applicable subdivision regulations, which required development depicted in the yield plan. The superior court found that the yield remanding to the board for further review the wetlands impact of the

issue of credibility, in order to effectively assess the issue of credibility.”

In its cross-appeal, Graystone contends that the superior court erred by

A. Remand of Wetlands Issue

II. Yield Plan Approval

Dist. attendance for all of the parties’ testimony, plus any other testimony on the, 140 N.H. 303, 314 (1995). them unable to resolve a crucial credibility contest.” Appeal of Alton School Smith] in which the failure of board members to attend a hearing rendered about credibility. “This case is thus unlike Petition of Grimm [and Petition of board’s decision did not turn upon credibility. Nor did the board make findings the instant case. Here, unlike Petition of Grimm and Petition of Smith, the Both Petition of Grimm and Petition of Smith are factually dissimilar to

139 N.H. at 302-04. 46-47. For similar reasons, we also applied this exception in Petition of Smith,

credibility, “due process requires all panel members deciding the case to be in the entire process.” kind of testimony in question,” and the matter at issue turns upon witness or that the failure of one participating member to attend one hearing vitiates panel and the record does not provide a reasonable basis for evaluating the that all members of an administrative board must take part in every decision, ruled that where “the board elects to make factual determinations as a hearing heard.” Petition of Grimm, 138 N.H. at 46 (quotation omitted). In that case, we written record of testimony by witnesses whom he has not personally seen or that “in administrative proceedings . . . an administrative officer may act on a argument. In Petition of Grimm, we examined an exception to the general rule 47 (1993), and Petition of Smith, 139 N.H. 299, 302-05 (1994), to support their The plaintiffs mistakenly rely upon Petition of Grimm, 138 N.H. 42, 46-

988, 994 (2d Cir. 1973).

reviewing applicable notes. “[T]he Constitution does not [necessarily] require two hearings over several years and he voted after having visited the site and with the right of way exists only as a paper street.

that the board acted reasonably. The parties do not dispute that the street road with the right of way to provide access to the CDS. The trial court ruled Later, when approving the CDS, the board required Graystone to upgrade the Graystone could not use this right of way, the yield plan would be nullified.

that if a court, in related litigation concerning the right of way, ruled that of way of forty-five feet. The board approved the yield plan with the condition way of less than fifty feet. The board found that the yield plan depicted a right that the board erred by approving the yield plan because it depicts a right of In the interests of judicial economy, we address the plaintiffs’ argument

B. Fifty-Foot Right of Way

issue to the board. regulations. We, therefore, vacate the superior court’s decision to remand this board for it to determine whether the plan complied with the applicable reversed the board’s approval of the yield plan, instead of remanding to the Having determined this, however, the superior court should have that it met the applicable subdivision regulations. erred when it approved the yield plan because there was insufficient evidence plan. superior court to conclude that the board unreasonably approved the yield to contain such detail. Under these circumstances, it was not error for the development upon the wetlands, the yield plan that Graystone submitted failed sufficient detail so that the board could assess the impact of a conventional require the yield plan to “show all wetlands and proposed disturbances” in erroneous. Summa Humma Enters., 151 N.H. at 79. While the regulations yield plan complied with the applicable regulations. applicable regulations is supported by the evidence and is not legally the board to “obtain the information necessary” for determining whether the The superior court’s ruling that the yield plan failed to comply with the

improper, but uphold the superior court’s predicate finding that the board complied with these regulations. We agree with Graystone that remand was evidence before the board was sufficient to establish that the yield plan, in fact, board waived the wetlands portion of the applicable regulations or because the Graystone contends that remand is unnecessary either because the

this aspect of the board’s decision, however, the superior court remanded to that the board erred when it approved the yield plan. Rather than reversing p. 7 7

to Graystone.

the yield plan, it did so in error absent evidence of undue hardship or injustice that the board waived the fifty-foot right of way requirement when it approved yield plan were ever developed, the board erred by approving it. To the extent a right of way of less than fifty feet on a road that would be constructed if the

BRODERICK, C.J.