2007-589, SCOTT OUELLETTE & a. v. TOWN OF KINGSTON

The plaintiffs, Scott Ouellette and other Kingston residents,

the brief), for the New Hampshire Preservation Alliance, as amicus curiae. Baldwin, Callen & Ransom P.L.L.C., of Concord (Carolyn W. Baldwin on

Konover Development Corporation. Mark S. Derby on the brief, and Mr. Rayment orally), for the intervenor, Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and

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.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-589 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 2

District[]:

following factors, among others: for a purpose or use inconsistent with and detrimental c. Whether the proposal is of a design, or of materials, or

use will create in the district. congestion and traffic that the proposed building or b. The change, if any, in the amount of noise,

buildings in the district. will have when viewed in relation to the surrounding a. The effect that the exterior façade of the building

a manner not inconsistent with the character of the

When reviewing an application, the HDC is required to consider the

Id. § 4.10.4.1. shopping. . . .

from their community. . . . b. Retail stores principally designed to serve shoppers

. . . . extends 350 feet on either side of the street.

In this District, the following uses will be permitted in certificate of approval from the HDC before applying for a building permit.

residential with small retail businesses for convenience

actually lies within the rural residential district. [A]n integrated area of mixed uses being predominately

uses permitted within the district, in pertinent part, as: abutting Route 1 p. 2 25 and Main Street in Kingston. § 4.10.2. The Historic District Regulations describe Historic District I and the for a certificate of approval to construct a supermarket on an eleven-acre lot Historic District Regulations Kingston’s Historic District I is primarily located along Main Street and

4.10.6; RSA 676:9, II.

wishing to build within the town’s historic district are required to obtain a Code, art. 4.10 (hereinafter Historic District Regulations), § 4.10. p. 2 2. Developers

due to the lot’s frontage within that district, although two-thirds of the lot ordinance, the entire lot is considered to be within the town’s Historic District I

Konover applied to the Town of Kingston Historic District Commission (HDC) The trial court found or the record supports the following. In April p. 2 2006, p. 3 HDC’s decision to the ZBA pursuant to RSA 676:5 (1996). development . . . away from areas of historic character.” Konover appealed the

which provides that “[t]o the extent possible, planning efforts will direct

proposal was “contrary to the wording and the intent of the Master Plan,”

proposed supermarket is relatively small”; (3) the store is “principally designed

review.

would detract from the character and quiet dignity” of the district; and (4) the “was not of a design and purpose consistent with adjoining lands, and . . . and “negatively impact the ‘walkable’ nature” of the district; (3) the proposal 3 record reveals that the ZBA actually held a

supermarket is consistent with the other uses in the historic district; (2) “the

interpreted your ordinance?” error, did they make an error in how they viewed the evidence and how they have reached the same conclusion under the plaintiffs’ proposed standard of [HDC] made, . . . you have to defer to that judgment . . . . The standard is

increase in traffic and noise “would seriously impact the residential character” “in error” and granted approval to Konover to construct the supermarket. The making its decision.” The ZBA concluded that all of the HDC’s findings were decision “to determine whether the ZBA felt that the HDC ha[d] ‘erred’ in In addition, the ZBA specifically found that: (1) the proposed

as that championed by the plaintiffs, “based on the evidence,” the ZBA would enough evidence in it to support the decisions and the determinations that the although it did not believe the applicable standard of review was as “onerous” and made its own, separate findings. The ZBA also noted in a footnote that

businesses in the district, which are all smaller than 4,000 square feet, and supermarket is not a small retail business as compared to other retail In its notice of decision, the ZBA stated that it reviewed the HDC’s

review, which their attorney described as: “If [the] record [before the HDC] has apply to the HDC’s decision. The plaintiffs argued for an “error” standard of was presented. An issue arose as to the standard of review the ZBA should The ZBA held a public hearing on the application, at which new evidence

description and permitted uses because the 36,000-square-foot proposed

of the Kingston Historic District. that it will detract from the character and quiet dignity

the following reasons: (1) the proposal did not accord with the district’s After holding several hearings, the HDC denied Konover’s application for

Id. § 4.10.9.

adjoining lands and whether such proposal is such or injurious to buildings and purposes or uses upon officer” under the statute.

p. 4 I. The parties do not dispute that the HDC qualifies as an “administrative

interpretation of the Historic District Regulations. judgment for the judgment of the HDC; and (4) giving deference to the ZBA’s

municipality affected by any decision of the administrative officer.” RSA 676:5, by any person aggrieved or by any officer, department, board, or bureau of the any matter within the board’s powers as set forth in RSA 674:33 may be taken 4

which provides, in pertinent part:

HDC decision; (3) affirming the ZBA decision where the ZBA substituted its

14.” RSA 677:17. RSA 676:5 provides that appeals to the ZBA “concerning

They do dispute, however, the proper interpretation of RSA 674:33,

affirming the ZBA decision when the court found no basis for clear error in the error in the HDC decision, the ZBA’s decision must be reversed. standard of review, and that because the trial court found no basis for clear

adjustment in accordance with the provisions of RSA 676:5 and RSA 677:1commission shall have the right to appeal that decision to the zoning board of the overall statutory scheme, the proper standard of review is persons jointly or severally aggrieved by a decision of the historic district RSA 676:5; RSA 674:33 (Supp. 2007). RSA 677:17 provides: “Any person or Appeals before the ZBA are governed by statute. See RSA 677:17 (1996);

consistent with the Master Plan. declining to find that clear error was the ZBA’s proper standard of review; (2) whole, contemplate that the ZBA review HDC decisions using a clear error The plaintiffs argue that the land use statutes, when considered as a there was “no basis for [the] Court to find clear error in the HDC’s decision.” I. Standard of Review

incorrect standard of review. The court disagreed and ruled that, pursuant to

the character and quiet dignity” of the district; and (7) the proposal is On appeal the plaintiffs argue that the superior court erred by: (1) buildings or purposes or uses upon adjoining lands and will not detract from the district; (6) “[t]he proposed building will not be detrimental or injurious to improper and that a more deferential standard applies, such as clear error, court noted, however, that if we were to hold on appeal that de novo review was

HDC’s findings are entitled to deference and, therefore, the ZBA applied an The plaintiffs appealed to the superior court, arguing, inter alia, that the

not be significant; (5) “there would be no impact on the ‘walkable’ nature” of to serve shoppers from Kingston”; (4) the increase in traffic and noise would did not see fit to incorporate in the statute.

p. 5 might have said or add language that the legislature

intent, and we refuse to consider what the legislature

not look beyond it for further indication of legislative administrative official from whom the appeal is taken.

statute’s language is plain and unambiguous, we need made and, to that end, shall have all the powers of the and ordinary meanings to the words used. When a of the statute, and, where possible, ascribe the plain

. . . judgment, opinion or order.” (8th ed. 2004). The plaintiffs define “error” as: “a mistake of law or fact in a [body] to have been unquestionably erroneous.” pursuant to RSA 674:16 . . . . Black’s Law Dictionary 582 “[C]lear error” is defined as a “decision or action that appears to a reviewing enforcement of any zoning ordinance adopted ZBA is required to apply a clear error standard of review to HDC decisions. determination made by an administrative official in the The plaintiffs argue that, pursuant to the overall statutory scheme, the and may make such order or decision as ought to be

requirement, decision, or determination appealed from considered as a whole. We first examine the language

N.H. 622, 624 (2007) (quotation and citation omitted). wholly or in part, or may modify the order, Town of Rye Bd. of Selectmen v. Town of Rye Zoning Bd. of Adjustment, 155

contemplated is a

error in any order, requirement, decision, or

intent as expressed in the words of the statute zoning board of adjustment may reverse or affirm, novo. We are the final arbiters of the legislature’s We review the trial court’s statutory interpretation de

de novo review.

RSA 674:33, I, II. The trial court ruled that this language suggests that what is

(a) Hear and decide appeals if it is alleged there is

II. In exercising its powers under paragraph I, the

. . . .

power to: I. The zoning board of adjustment shall have the p. 6 6 evidence if necessary.”);

that the zoning board hears and decides . . . an appeal [from a zoning

de novo.”); whom the appeal is taken. . . . The board[] [of adjustment’s] review therefore is provide that the board has all the powers of the officer or department from

novo review of the [Zoning] Committee’s decision, and may take additional

courts hold that the proper standard of review is (“[I]t is clear from both the entire statutory scheme and our zoning case law

Caserta v. Zoning Bd. of Appeals, p. 6 626 A.2d 744, 748 (Conn. 1993)

(“[The relevant] Sections . . . of the [Denver Revised Municipal] [C]ode expressly and Co. of Denver v. Bd. of Adjustment, 55 P.3d 252, 25 p. 6 6 (Colo. Ct. App. 2002) review of building permit denial by town’s commissioner of public works); administrative official. Although the words “City N.Y.S.2d 660, 661 (N.Y. App. Div. 2004) (upholding remand to ZBA for therefore, the ZBA is authorized by statute to step into the shoes of the de novo

(“The Board [of Adjustment] has the authority to perform a substantive, de little since the zoning statutes were enacted in 1925.

Interpreting language nearly identical to RSA p. 6 674:33, the majority of

2005). Osterhues v. Bd. of Adjust. for Washburn, p. 6 698 N.W.2d 701, 709 n.10 (Wis. 1926). The Act has been adopted, at least in part, by nearly every state. See Dep’t of Commerce, A Standard State Zoning Enabling Act §§ 7.1, 7.3 (rev. ed. 1920s. Boccia v. City of Portsmouth, 151 N.H. 85, 89-90 (2004); see also U.S. official from whom the appeal is taken.” When hearing and deciding an appeal, disseminated by the United States Department of Commerce in the early is nearly verbatim to that in the Standard State Zoning Enabling Act (the Act)

Historically, the language governing appeals to the ZBA has changed

nor deferring to decisions made below.”). means that the reviewing [body] decides the matter anew, neither restricted by of Hinsdale v. Town of Chesterfield, 153 N.H. 70, 73 (2005) (“De novo review statute, the authority to act as the HDC is its functional equivalent. Cf. Town

RSA p. 6 674:33, II confers upon the ZBA “all the powers of the administrative review appeals from decisions of administrative officials de novo. However, There is no statutory provision that expressly authorizes the ZBA to

merely a pleading requirement. any instruction regarding the standard of review the ZBA must apply; it is (emphasis added). We do not agree, however, that RSA p. 6 674:33, I(a) provides “[h]ear and decide appeals if it is alleged there is error.” RSA 674:33, I(a) administrative official.” We agree that the statute provides that the ZBA may only if the appealing party establishes error in the decision of the limitation is that the ZBA may reverse the decision of the administrative official administrative appeal may be brought only for alleged error. Inherent in that The plaintiffs first argue that pursuant to RSA 674:33, I(a), “an that the legislature intended to have two different standards of review for HDC

p. 7 the standard of review to be applied to appeals before the ZBA. unreasonable.”). The plaintiffs argue that it “does not make sense to conclude districts,” we do not find that they speak to the legislature’s intent regarding administering historic district ordinances and regulations within historic

appeals. be read as an indication of the standard of review that the ZBA must apply to the powers and duties of the historic district commission, and therefore cannot of probabilities, on the evidence before it, that said order or decision is

commissions, whose members have “special qualifications,” “are responsible for is required by RSA 677:6 (1996) to apply a more deferential standard of review.

statute and local ordinance when reviewing a permit application, was limited to vacated, except for errors of law, unless the court is persuaded by the balance See RSA 677:6 (“The order or decision appealed from shall not be set aside or areas “serve[s] [an] important public purpose[]” and that historic district the superior court pursuant to RSA 677:18 (1996), and that the superior court “merely pondering or reflecting on the issues.” commissions in municipalities which do not have ZBAs are appealed directly to Finally, the plaintiffs point out that decisions of historic district

the historic district commission had followed requirements imposed upon it by novo. Id. at 945. This aside, our holding in that case, which involved whether appealed to the zoning board of adjustment, which conducted a hearing de with the plaintiffs that these statutes demonstrate that preserving historic We first note that in Hanrahan, the historic district commission decision was qualifications for members of a historic district commission. While we agree Hanrahan, 119 N.H. at 948. warning that the historic district commission statutes require more than commissions; and RSA 673:4, II discusses, among other things, the (1979), and argue that applying a de novo standard of review negates our The plaintiffs also cite Hanrahan v. City of Portsmouth, 119 N.H. 944

districts; RSA 674:46-a sets forth the powers and duties of historic district (1996); RSA 673:4, II (1996). RSA 674:45 lays out the purposes of historic entire land use statutory scheme. See RSA 674:45 (1996); RSA 674:46-a, III nevertheless argue that the clear error standard is more consistent with the Citing the statutory provisions governing Historic Districts, the plaintiffs

has broad authority on subjects within its jurisdiction.”). see also Peabody v. Town of Windham, 142 N.H. 488, 492 (1997) (“The board novo, based upon the broad powers granted to it by statute. See RSA 674:33; We are persuaded by the majority rule that the ZBA may hear appeals de

[to the board of adjustment] involves a de novo hearing.”). Anderson’s American Law of Zoning § 22.05, at 15 (4th ed. 1997) (“[A]n appeal enforcement officer] de novo . . . .” (quotation omitted)); see also 4 K. Young, p. 8 ZBA’s decision is unreasonable.

the ZBA either unlawful or unreasonable. acted unreasonably. The trial court held that it could not find the decisions of failed to discuss several findings of the HDC, ignored important evidence and is legally erroneous. adherence to that line of decisions.

based upon a balance of the probabilities, on the evidence before it, that the

personal opinions for the judgment of the HDC.” They assert that the ZBA Id. the trial court’s decision on appeal unless it is not supported by the evidence or here at issue a court; nothing herein is intended as either a departure or Town of Rye, 155 N.H at 627. We will uphold

aside by the trial court absent errors of law, unless the court is persuaded, the ZBA are deemed prima facie lawful and reasonable, and will not be set The trial court’s review in zoning cases is limited. The factual findings of

ZBA decision that allowed the ZBA to merely substitute its uninformed The plaintiffs next argue that “[t]he superior court erred by affirming a of decisions might well have produced a contrary result were the appellate body II. The ZBA Decision

basis for clear error in the HDC decision. argument that the ZBA decision must be reversed because the court found no ZBA reviews decisions of the HDC de novo, we need not reach the plaintiffs’ Accordingly, because we hold that the trial court properly found that the

27, 28 (1982) (holding same in memorandum opinion). We note that this line 509 (1983) (holding same in memorandum opinion); Allard v. Power, 122 N.H. involved.” by using those words.” (quotation omitted)); Appeal of Doherty, 123 N.H. 508, because the members of these boards are more “familiar[] with the area legislature desires a full de novo hearing on appeal, it knows how to require it standard. See Town of Hudson v. Baker, 133 N.H. 750, 752 (1990) (“If the regarding judicial review when the legislature is silent as to the proper In considering this matter, we have not overlooked our jurisprudence

Accordingly, we find the plaintiffs’ argument on this point unavailing. court because the board itself is composed of members of the community. necessary for the board to apply the same level of deference as the superior town has a zoning board of adjustment that hears appeals, however, it is not grounds by Cook v. Town of Sanbornton, 118 N.H. 668, 671 (1978). Where a

Vannah v. Bedford, 111 N.H. 105, 108 (1971), overruled on other

stricter standard of review to appeals of decisions from local land use boards decisions.” We disagree. The superior court affords deference and applies a surrounding area does not allow commercial uses.

p. 9 commercial uses are placed in the center of the village and the zoning in the is contrary to “Kingston’s New England Village pattern of development,” where encourages commercial development along Route 125, which runs roughly uses are permitted in the district regardless of size, and the proposed location

place commercial uses in the center of the village, the town’s Master Plan cannot be compared to other large civic buildings such as schools since these

not appear out of place. Second, while the village plan of development may “other commercial uses are more than 3000 feet away,” the supermarket nonresidential uses within the historic district such that a supermarket would buildings, does not contravene the ZBA’s finding that there are other, business.

Kingston Plaza and a restaurant, among others. The plaintiffs argue that large nonresidential uses in the area including two schools, the village market, 3000 feet away, or that large civic buildings do not equate to commercial of keeping with the land use pattern in the district.” The ZBA listed several whether it would fit the definition of a small retail

be built in a predominantly residential area[,] or disagree as to whether or not the supermarket was to

First, the fact that other commercial uses in the historic district are more than . . . the inclusion of a supermarket on the edge of the district would not be out We cannot say that the ZBA’s findings on this issue are unreasonable.

category. For example, reasonable persons could

may be residential, there are numerous mixed uses throughout the district and unreasonable. The ZBA found that “while the predominant use in the district supermarket would be consistent with other uses in the historic district was boards in this case fall into the black or white First, the plaintiffs argue that the ZBA’s finding that the proposed

upon the evidence before it, the trial court found that of the ZBA. Our review of the record shows that there was evidence to support the findings

constitute grounds for reversal.

none of the factual issues under consideration by both

As to the plaintiffs’ assertions that the ZBA acted unreasonably based

the HDC or failing to discuss evidence before the HDC, therefore, does not deference to the findings or rulings of the HDC; substituting its judgment for unavailing. Under the de novo standard, the ZBA is not required to give the HDC or that it ignored certain evidence that the HDC found pertinent are the plaintiffs’ arguments that the ZBA substituted its own judgment for that of Given our holding that de novo is the proper standard of review, we find compared with the size of other businesses within the historic district.

p. 10 community.” District[]”; and (2) “principally designed to serve shoppers from their 10

supermarket cannot be compared to other supermarkets but must be supermarkets go.” The plaintiffs argue that the size of the proposed at 36,000 [square feet], the proposed supermarket is relatively small as today’s

that they are: (1) “in a manner not inconsistent with the character of the

shopping. The area also contains a variety of public residential with small retail businesses for convenience an integrated area of mixed uses being predominately

the ZBA found that “the size of the ‘small retail business’ is subjective [and] . . . description of the district: We interpret “character of the District” to refer to the following

Historic District Regulations § 4.10.4.1.

interpretation because the construction of an ordinance is a question of law. The regulations permit retail stores within the historic district provided concerns ordinance interpretation, and courts do not have to defer to the ZBA’s business” was not unreasonable. Alternatively, they argue that this issue (2006). considered as a whole. See City of Rochester v. Corpening, 153 N.H. 571, 573 we determine the drafters’ intent as expressed in the words of the regulations according to the common and approved usage of the language. Id. In addition, residential with small retail businesses for convenience shopping.” Specifically, regulations. Id. We construe the words and phrases of the regulations statutory construction generally govern our review of ordinances and zoning City of Manchester, 156 N.H. 587, 589 (2007). The traditional rules of and is therefore a question of law, which we review de novo. Stankiewicz v. We agree that this question involves the interpretation of the regulations,

ZBA’s finding that the proposed supermarket constituted a “small retail

historic district is an “integrated area of mixed uses being predominantly supermarket is considered to be within the historic district. section 4.10.4.1 of the Historic District Regulations, which provides that the historic district and due to its frontage, the location of the proposed The ZBA found that the proposed supermarket was consistent with uses, it cannot be disputed that commercial uses are permitted within the

Next, the plaintiffs argue that the trial court erred in ruling that the

ZBA’s findings were not unreasonable. Regulations § 4.10.2. Accordingly the trial court did not err in ruling that the

zoning surrounding the proposed supermarket may not permit commercial perpendicular to the northern edge of the historic district. Third, while the factual findings of the ZBA are

p. 11 of this issue is “confusing and does not reveal a basis” for its conclusion.

district. Thus, the plaintiffs failed to overcome the presumption that the

serve shoppers from Kingston.” The plaintiffs argue that the ZBA’s discussion

on appeal, to support its finding that traffic will not negatively affect the addition, the ZBA pointed to other evidence, which the plaintiffs do not dispute not the ZBA “misunderstood” the HDC’s findings, therefore, is irrelevant. In would not be inconsistent with the character of the District. district.” Accordingly, the ZBA implicitly found that the proposed supermarket discussed above, however, the ZBA was entitled to conduct a misinterpreted the testimony of the police chief and a traffic consultant. As we “misunderstood” the HDC’s findings on this issue, and that the ZBA The ZBA also found that “this particular store is principally designed to

as well as a mix of other architectural types. prima facie lawful and reasonable. containing many fine examples of colonial architecture

on the application and was not bound by the findings of the HDC. Whether or

will have a negative impact upon the character of the district, that the ZBA findings of fact made by the ZBA, which the trial court must deem The plaintiffs argue that there was evidence that the increase in traffic

inconsistent,” id., with the character of the district based upon other factors. small by some standards, this alone does not preclude a finding that it is “not Plains as typical of a small New England village this conclusion. Although the proposed supermarket may not be considered Regulations § 4.10.4.1. As we discussed above, there was evidence to support regulations do not Historic District

on each of these requirements. First, the ZBA found that the proposed lawful and reasonable. Town of Rye, 155 N.H at 627. The ZBA made findings

Whether there was evidence to support these requirements involves

community.” Id. District” and that it is “principally designed to serve shoppers from their characterized from its general appearance along the business”; they require that it not be “inconsistent with the character of the raising and service professions. The area is

home arts and crafts, gardening, domestic animal require that a proposed business constitute a “small retail

proposal satisfies the two requirements of the regulations listed above. The whether the proposed supermarket qualifies as such, but rather whether the proper inquiry is the meaning of the phrase “small retail businesses,” id., and Id. Given the plain language of the regulations, we do not believe that the

facilities, customary home occupations, traditional buildings serving religious and civic functions, dining p. 12 12

repeat our discussion here.

disagreed as to the meaning of “small retail businesses,”

concurred.

the trial court. We addressed this issue in section II, above, and need not

the factual findings of the ZBA are zoning ordinance is a question of law.” They argue that the HDC and the ZBA this issue. The plaintiffs, therefore, failed to overcome the presumption that

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

decision of the ZBA was unsupported by the evidence or legally erroneous.

issue of law, and that the ZBA’s interpretation was not entitled to deference by

was bound by the determinations of the ZBA” because the “construction of a Konover’s sales estimate, they do not dispute the other findings of the ZBA on Finally, the plaintiffs argue that “[t]he superior court erred by believing it

III. Superior Court’s Review

conclude that the plaintiffs have shown that the trial court’s order affirming the Accordingly, p

supermarket in Kingston. Although the plaintiffs dispute the accuracy of supermarket as compared to other supermarkets; and (3) the absence of a upon: (1) Konover’s sales estimate for the store; (2) the smaller size of the According to the notice of decision, the ZBA concluded as it did based