2007-569, DERRY SENIOR DEVELOPMENT, LLC v. TOWN OF DERRY

The plaintiff, Derry Senior Development, LLC, appeals an

and orally), for the defendant. Boutin & Altieri, P.L.L.C., of Londonderry (Steven A. Clark on the brief

Schulman on the brief and orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Getman, Stacey, Schulthess & Steere, P.A., of Bedford (Andrew R.

editorial errors in order that corrections may be made before the opinion goes No. 2007-569 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

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 22 as acres of open space. p. 2 collection pipes; (3) thirty-six individual water wells; and (4) approximately forty

cleanouts.” the end of a sewer main,” not, as the plaintiff proposed, “4 [inch] pipes with [inch] sewer services and precast concrete manholes at intersecting pipes or at

Drew Road”; (2) six community septic systems, each with four-inch sewage

that is, “the collection system . . . be comprised of 8 [inch] sewer mains, 6 [the higher standards found in the] Town of Derry Sewer Division Regulations”; system components upstream of the septic tank(s) . . . be built according to inch thick pavement as proposed by the plaintiff; and (2) “all sewer collection way to be called Kimball’s Lane, [and] one additional unit to be accessed from single family detached residences, with “35 units to be located on a new private proposed project consisted of, among other things: (1) thirty-six two-bedroom

years or younger for more than ninety days in any calendar year.”

wide pavement, 4 [inch] pavement thickness),” not twenty feet wide and three (1) Kimball Lane “be constructed to essentially subdivision standard (24 [feet] Works (DPW), however, opposed the proposed development. It requested that: construct an independent adult community development on its property. The ch. 485-A (2001 & Supp. 2007). The Town of Derry Department of Public approval for its project from, among other entities, the DES. See generally RSA least one person age 55 or older . . . and [not including] any person age 18 approval from the board, Before submitting the application to the board, the plaintiff obtained with . . . dwellings limited to occupancy by households that each include at independent adult community is defined as “[a] residential development . . . Adult Community Overlay District. Under the town’s zoning ordinance, an

On August 8, 2006, the plaintiff applied for final site plan approval to

165-151, and any applicant seeking to develop such a community must obtain “conform to the requirements of the Town of Derry Site Plan Regulations,” id. § mandates that any proposal for an independent adult community must located in the town’s Low Density Residential District and its Independent average number of residents per dwelling.” Id. § 165-145(3). The ordinance developments, and have less impact upon the public school system and a lower vehicular traffic, water usage and sewer usage than other types of residential developments housing older persons typically generate lower average rates of of such communities, the town recognized, among other things, “that Zoning Ordinance art. XIX, § 165-146(2) (2005). In permitting the development

The plaintiff owns a sixty-acre parcel of land on Drew Road in Derry,

approval. Accordingly, we reverse and remand. unreasonably and unlawfully denied the plaintiff’s application for site plan p. 3 3

construction standards, that for your understanding,

plans.

plan to a later date.

you know, addressed in particular, the sewer some thought and there is some logic behind them - not standards for the sake of standards. There is hearing, the board considered the plaintiff’s original application, not its revised have been requiring, at least as my understanding, is

submitted only one copy of the revised plans. Thus, at the December 6, 2006 I think that to be clear here that the standards that we completed application,” scheduled a site visit, and tabled consideration of the revised plans to the board until the day before the hearing, and, at that time, board accepted jurisdiction of the plaintiff’s application because “it was a expressed support for the DPW’s position. He stated: the width of Kimball Road and the community septic systems. Ultimately, the board member, Tom Carrier, who is also the assistant director of the DPW, supply. Additionally, the board expressed concerns with, among other things, another independent adult community previously approved by the board. One system be “buil[t] to town standards as required of the Indian Hill Estates,” that Kimball Lane be twenty-four feet wide, and that the sewer collection At the hearing, the DPW reiterated that it required, among other things,

six (6) inches for improved serviceability and performance.” address various concerns of the town’s engineer. It did not, however, submit Prior to the December 6, 2006 hearing, the plaintiff revised its plans to

to examine the potential impact of the proposed development upon the water applied. supply. In response, the board requested an independent hydrogeology study or subdivision regulations, and concluded that the site plan regulations concerned that the proposed development would further reduce their water discussed whether the plaintiff’s application was subject to the town’s site plan their wells already provided an insufficient supply of water, and that they were continuance to December 6, 2006. After approving this request, the board At a public hearing held on October p. 3 30, 2006, the plaintiff requested a

collection lines be constructed of SDR p. 3 35 PVC, having a minimum diameter of [wa]s statutorily within the purview of the NHDES, . . . all ‘common’ sewage four feet; and (2) “[a]lthough the content of the [septic system design] plans

application for site plan review. At the hearing, several abutters testified that On September 6, 2006, the board held a public hearing on the plaintiff’s

among other things, that: (1) Kimball Lane have a minimum width of twenty- The town’s engineer also reviewed the application, and recommended, requirement.

p. 4 required, and it does not meet the 24 foot wide paving access via the internal drive [Kimball Lane] as access drives. There’s one particular unit that has no

Control Regulations specifically with regard to internal

construction standards of the Land Development

development because it does not meet the design and standards. I intend on not supporting approval of this defensible, so they’re not just standards for the sake of that, again we believe that they’re well thought and

thought and defensible. With the road standards also Town of Derry standards which we feel are well

have a minimum width of twenty-four feet; (2) “[r]evised plans were not surface disposal system, that we apply the existing

the plan did not comply with the town’s regulation requiring internal drives to collection systems, they are dealing more with sub adverse impact upon the water supply yields in the area. certificate of disapproval, the board cited the following reasons for denial: (1) [the town previously] experienced” with community septic systems. In its proposed sewage system did not have “larger piping to eliminate the failure that

DES did, but DES is not specific when it comes to

would consist of thirty-six individual wells, would not have a measurable regulation with regard to the Town, you’re correct, the the board noted that the experts agreed that the proposed development, which the collection system. So, absent an existing system would be located up-gradient of their wells. As to the former concern, requirements, the board voted to disapprove the application partly because the adversely affect their wells and water supply, and that the proposed septic conditions. Specifically, after acknowledging that the plan met DES board denied the motion to approve the application, even with the stated plaintiff use six-inch collection pipes for the sewage system. Ultimately, the plaintiff to comply with the recommendation by the town’s engineer that the original application, subject to several conditions. One condition required the Following discussion, a board member moved to approve the plaintiff’s

reasons why they failed was due to the construction of

expressing concerns that, among other things, the development would Additionally, several abutters opposed the proposed development,

during the 1980’s, failed. And, one of the primary system constructed in the Town of Derry, particularly you that just about every single community septic

community septic systems. And, I would submit to we have had historically a number of problems with p. 5 5

board as

properly upheld the board’s denial of the application. bears the burden of demonstrating that, by the balance of the probabilities, the absent unreasonableness or an identified error of law. Id. The appealing party

prima facie lawful and reasonable and cannot set aside its decision

The superior court is obligated to treat the factual findings of the planning maintains that the “board’s concerns were not Superior court review of planning board decisions is equally limited. qualified in th[e] area” of septic systems in requiring larger piping. The town Id.

on appeal unless it is unsupported by the evidence or legally erroneous. Id. injury to health, safety, or prosperity,” Enters. v. Town of Tilton, 1 p. 5 51 N.H. 75, 79 (2004). We will uphold the decision Our review of the trial court’s decision is deferential. Summa Humma

a community septic system up-gradient from four homes.”. . . the septic plan as designed.” Thus, the town contends that the trial court that the board “had persuasive evidence before it that supported its denial of remaining reasons for denying the application. light of the proposal and its experience with community septic systems,” and

relied upon “the testimony and comments of . . . two individuals who are Regulations, part 3, art. VII, § 170-47(A)(1) (200 p. 5 5) (LDCR), the board properly

plan regulations to “guard against such conditions as would involve danger or requirements,” and, “[t]herefore, DES approval should be The town counters that, consistent with the purpose of the town’s site

unreasonably in denying plaintiff’s application on the grounds that it included law by affording the DES approval less than presumptive weight, and acted of the septic site.” The superior court, therefore, did not address the board’s contends that “both the . . . [b]oard and the trial court committed an error of residents, particularly the four abutters whose wells are located down gradient proposed or adopted by the appropriate rule-making process,” the plaintiff sewage pipe design [wa]s inadequate to protect the health and safety of because the board “effectively imposed a new rule which had never been plaintiff’s application was “supported by [the board’s] determination that the which should have been inferred from [its] certificate of DES approval,” and was no expert evidence which rebutted the presumption of safety and adequacy an applicant’s design and setbacks are safe and sufficient.” Because “there

regulations that specifically address septic systems or septic set back On appeal, the plaintiff argues that the town has enacted “no site plan

2007). The superior court affirmed, finding that the board’s disapproval of the The plaintiff appealed to the superior court. See RSA 677:1 p. 5 5 (Supp.

gradient of a 12 unit septic system.” available for review”; and (3) “[t]here were 4 homes with wells that are down- p. 6 IV.

mains, piping, connections, or other facilities shall be installed.” RSA 674:44, approval of the plat, the extent . . . to which water, sewer, and other utility adopts may, among other things, “stipulate, as a condition precedent to the

construction.” RSA 674:44, III(b), (c). The regulations that the planning board

comply, including appropriate reference to accepted codes and standards for standards and requirements with which the proposed development shall municipalities . . . , there are definite limits to its use.” 15 P. Loughlin, things, “[d]efine the purposes of site plan review” and “[s]pecify the general adoption of site plan regulations). These regulations must, among other see RSA 674:44, I (Supp. 2007); RSA 675:6 (1996) (setting forth method of regulations before exercising authority.” 15 P. Loughlin, supra § 30.09, at 437; executing, but rather, the local planning board must adopt specific site review see RSA 674:43, I (Supp. 2007). Further, “[s]ite review statutes are not selfcontrol to their planning boards.” 15 P. Loughlin, supra § 30.09, at 436-37; communities which have adopted valid zoning ordinances may grant site review specifically authorized the planning board to exercise site plan control and only example, site plans may only be reviewed after the local legislative body has § 30.09, at 436; see also Summa Humma Enters., 151 N.H. at 78. “For

Although “[s]ite review can be an extremely useful and powerful tool for

N.H. at 78 (citations omitted). goals and considerations within its purview,” Summa Humma Enters., 151 impose requirements and conditions that are reasonably related to land use Planning and Zoning § 30.02, at 427 (2000), and, thus, has the authority “to pollution sources,” 15 P. Loughlin, New Hampshire Practice, Land Use surface and sanitary drainage, the effect on ground water, and the creation of “review[s] site plans to determine if they properly address such issues as readily grant or refuse a permit.” Id. (quotation omitted). The planning board ordinance a set of specific requirements upon which a building inspector could planning board in cases where it would not be feasible to set forth in the these purposes, a plan is “subject[ed] . . . to the very expertise expected of a property owners or the general public.” Id. (quotation omitted). To accomplish not involve danger or injury to the health, safety, or prosperity of abutting sites will be developed in a safe and attractive manner and in a way that will problems.” Id. at 78 (quotation omitted). It is “also designed to assure that which they are being constructed without causing drainage, traffic, or lighting ordinance are constructed on a site in such a way that they fit into the area in “Site plan review is designed to insure that uses permitted by a zoning

reasonably based. Id. determine whether there is evidence upon which they could have been to determine whether it agrees with the planning board’s findings, but to board’s decision was unreasonable. Id. The review by the superior court is not prosperity.

surface sources,” designed and constructed

comprehensive rules for the design of sewage disposal systems.

such provisions as will tend to create conditions

hazards,” RSA 485-A:1 (2001). structures, or adjacent properties . . . ; and [i]nclude

environment which might prove harmful to persons, id. 1001.01, and “to prevent nuisances and potential health

pollution of all public or private water supplies, whether underground or particulates, or any other discharge into the Admin. Rules on-site subsurface sewage disposal system may be, Env-Ws 1000-1025. The purpose of these rules is “to prevent

The New Hampshire Code of Administrative Rules sets forth

Id. § 1 p. 7 70-66(A)(1) (emphasis added).

appropriate permits for the same from the [DES]. Administrative Rules; and the applicant has secured requirements of the New Hampshire Code of construction fully complies with all applicable

the quality of groundwater . . . [or] undesirable and In areas where municipal sewer is not available, an prosperity by reason of . . . inadequate protection for

construction,” which provides, in pertinent part: would involve danger or injury to health, safety, or Relevant to this case is a regulation governing “[s]anitary sewer

community.” Id. § 1 p. 7 70-50(B). of the Board, it is necessary to protect the health, safety or welfare of the requirements with regard to any standards in the[] regulations if, in the opinion §§ 170-62 to -65. The board, however, also reserved the right to “set higher access, parking, storm water management, and sewer construction. See LDCR forth various design and construction standards, including standards for site To achieve this purpose, the board enacted site plan regulations that set

LDCR §§ 1 p. 7 70-47(A)(1), (8). including to . . . guard against such conditions as

[u]phold the purposes set forth in RSA 6 p. 7 74:44,

The stated purpose of these site plan regulations is to: Here, the board adopted site plan regulations pursuant to RSA 6 p. 7 74:44, I. p. 8 [WSPCD].

Such information may consist of the report of the . . . operation of an individual sewage disposal system . . . . each lot is adequate to permit the installation and provide adequate information to prove that the area of

danger to health.’” Id. absence of other evidence that the septic systems still posed an ‘exceptional produced the WSPCD’s report, the lots should have been approved, in the systems it is the responsibility of the subdivider to adequate proof of a safe septic system.” Id. at 344. Thus, “[o]nce the owners under this regulation that WSPCD approval of an on-site sewage system [wa]s initial burden of proving adequate sewage disposal, there [wa]s a presumption of exceptional danger to health.’” Id. Based upon this regulation, we held that, “although the developer ha[d] the

That in areas not currently served by public sewer

regulation stated:

‘land of such character as cannot be safely used for building purposes because Instead, the regulations “authorize[d] the board to disapprove a plan for

system approval.” Id. guide applicants as to what, beyond WSPCD approval, [wa]s required for septic adequate.” (quotation omitted). “In th[at] case, however, there [we]re no local standards to permit creates a presumption that [the proposed] septic plan is safe and WSPCD, and is free to enact more exacting or protective standards.” Id. at 343 septic systems than those set forth in the administrative rules, the “DES approval[,] . . . is not bound by a determination of another agency, such as the own judgment and experience in acting upon applications for subdivision board’s action, we noted that “a planning board is entitled to rely in part on its (WSPCD). Smith, 136 N.H. at 339, 341. In addressing the propriety of the systems by the New Hampshire Water Supply and Pollution Control Division proposed septic systems were inadequate,” despite prior approval of the preventing the owners from developing their lot because “the board felt the In Smith, the planning board declined to remove certain restrictions

argues that, because the board has not enacted more stringent standards for approval and Smith v. Town of Wolfeboro, 136 N.H. 337 (1 p. 9 992), the plaintiff N.H. Admin. Rules, Env-Ws 1003, 1008, 1009, 1010, 1017. Relying upon this size and the distance of the system from wells and property lines. See, e.g., development meets these rules, which include requirements concerning pipe In this case, the DES’ approval states that the plaintiff’s proposed 9

purpose of the DES rules is to prevent the pollution of all water supplies. consistent with the stated intent of the board’s site plan regulations, the

DES’ approval was rebuttable. Smith, 136 N.H. at 343. If other evidence supra § 30.02, at 427. Thus, the presumption created by the regulation and effect on ground water, and the creation of pollution sources.” 15 P. Loughlin, concerning the town’s requirements for sewage disposal systems. Moreover, board to “properly address such issues as surface and sanitary drainage, the As noted above, however, the purpose of site plan review is to allow the

presumption. See Smith, 136 N.H. at 344. requirements, we must conclude that this regulation creates a similar further to specifically incorporate the DES’ rules as the sewage disposal system adequate proof of a safe septic system, in this case, where the regulation goes Wolfeboro regulation created a presumption that WSPCD approval constituted Admin. Rules, Env-Ws 1000.01. Thus, given our ruling in Smith that the

regulations. These regulations provide the sole guidance for an applicant disposal system “as long as” the proposed system fully complies with DES subsurface sewage disposal system may be designed and constructed enact direct that an applicant is permitted to design and construct a sewage overlooked that the town’s site plan regulation instructed: “an on-site 485-A:32, I (2001); RSA 674:44, II, IV, the site plan regulations it chose to regulations here do not contain a similar provision. In so doing, the trial court Although the board could have enacted more stringent standards, see RSA proof of the adequacy of a sewage system, while, in its view, the site plan ensure the safety and adequacy of the proposed sewage disposal system. standards guiding applicants as to what, beyond DES approval, is required to As in Smith, the board here has enacted no other septic system

66(A)(1) (emphasis added). secured appropriate permits for the same from the [DES].” LDCR § 170of the New Hampshire Code of Administrative Rules; and the applicant has proposed system posed an ‘exceptional danger to health,’” as said design and construction fully complies with all applicable requirements

at issue in that case specifically stated that WSPCD’s approval constituted Smith. The trial court distinguished Smith on the grounds that the regulation We agree with the plaintiff that the present case is strikingly similar to

at 344-45. that the board erred in failing to remove the restrictions on the owners’ lot. Id.

(citation omitted). Because the record was devoid of “testimony that the deny subdivision approval on an ad hoc basis because of vague concerns.” Id. Id. (citation omitted). We emphasized, however, that “the board [could] not ordinances setting higher septic system standards than WSPCD . . . require[d].” about . . . pollution [we]re legitimate,” and that “the town [wa]s free to pass Reviewing the evidence in Smith, we noted that “[t]he board’s concerns p. 10 10

experience, community septic systems had failed in the past, no evidence in

particular circumstances would pose a real threat to the public interest.

director of the DPW, informed the board that, based upon his and the DPW’s In this case, although a board member, who was also the assistant

prevent the possible future failure of the proposed community septic systems. years before as a result of poor construction, the larger piping was required to concrete evidence indicating that following the agency’s determination in the board reasoned that, because community septic systems had failed twenty show specific facts justifying rejection of the agency’s determination; that is, also necessary for the proposed community septic system. In so doing, the presumption that the proposal protects the public interest, the record must 132 N.H. 431, 438 (1989). Where, as here, another agency’s approval creates a mere personal opinion of its members. Condos East Corp. v. Town of Conway, 343, 344. Further, the board’s decision must be based upon more than the deny approval on an ad hoc basis because of vague concerns. Smith, 136 N.H. experience in acting upon applications for site plan review, the board may not Although the board is entitled to rely upon its own judgment and

acted lawfully when it rejected the development with

that the eight-inch sewer mains that are required for municipal sewers were The board denied approval because it presumably agreed with the DPW

board's decision to deny the plaintiff's application. We disagree. piping. disposal system, constitutes legitimate and persuasive evidence supporting the piping, even though the DES had approved the development with four-inch the location of four abutters' wells down-gradient of the proposed sewage affirming the board’s failure to approve the proposed development with six-inch added.) Thus, we are limited to determining whether the trial court erred in

inches. The plaintiff characterizes the issue on appeal as “whether the [board] subject to the condition that all such lines have a minimum diameter of six properties,” lines be six inches in diameter. The board denied the plaintiff’s application “pollution . . . which might prove harmful to persons, structures, or adjacent piping. The town’s engineer recommended that all common sewage collection it would “inadequate[ly] protect[] . . . the quality of groundwater,” or result in The proposed system approved by the DES was comprised of four-inch

testimony that community septic systems had failed in the past, combined with Here, the town asserts, and the trial court found, that Carrier's

approval. See Smith, 136 N.H. at 343-44.

LDCR § 170-47(A)(1), the board had the authority to deny site plan

“involve danger or injury to health, safety, or prosperity” because, for example, demonstrated that, notwithstanding DES’ approval, the proposed system would system did not provide sufficient piping.

p. 11 unreasonably denied site plan approval on the grounds that the proposed prevent pollution of water supplies. Accordingly, the board arbitrarily and the board and DPW that the proposed system with six-inch piping would fail to

concern that the down-gradient wells might be in danger. board could not reasonably deny site plan approval based upon its vague

system from collapsing. Indeed, nothing in the record supports the position of

in such a fashion as to pose a safety risk to the four down-gradient wells, the specific facts suggesting that the plaintiff’s system was constructed or located wells are particularly vulnerable to contamination. In the absence of any although the DES’ minimum setback requirements are met, these individual

slope of the land.

because a well is located down-gradient from a septic system, regardless of otherwise would allow the board to deny approval of any proposed plan simply town’s engineer and rejected by the board, was insufficient to prevent the proposed system created an identifiable danger to the four down-gradient wells. See id. To conclude Nor does the record indicate that six-inch piping, as recommended by the system required larger piping to protect the public from groundwater pollution.

wells are located at such a severe slope or short distance from the system that, ‘exceptional danger to health.’”). For example, no evidence indicates that the minimum distances from property lines and wells, taking into account the proposed, despite the absence of testimony that the proposed system posed an septic systems, which include directing that systems be located at certain belief that there existed a septic system superior to the one the owners private water supplies, the DES regulations specify setback requirements for Cf. Smith, 136 N.H. at 344 (“The board apparently based its decision on its abutters’ water supplies. To protect against contamination of both public and not necessarily imply that the proposed system poses a real danger to the part upon this basis. However, nothing in the record suggests that the mere fact that the wells are located down-gradient of the proposed system does Despite this presumption, the board denied the plaintiff’s application in evidence could have justified the board’s determination that the proposed presumption that wells surrounding the system are protected. system design. Thus, the DES’ approval of the plaintiff’s system created a 1008.11. Again, the town has enacted no other standards relating to septic

located down-gradient of the proposed twelve-unit septic system. However, the a reason those systems failed related to the size of the collection pipes. Such The board denied site plan approval also because four abutters’ wells are had failed twenty years before were constructed using six-inch piping, and that record reveals no evidence suggesting that the community septic systems that

piping, did not adequately protect against such failure. For example, the the record explains why the plaintiff’s proposed system, upgraded with six-inch p. 12 12

application for site plan approval. trial court for review of the board’s remaining reasons for denying the plaintiff’s abutters’ wells are located down-gradient of the septic site. We remand to the inadequate to protect the health and safety of the residents and because four

decision to deny site plan approval because the sewage pipe design was

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred.

Accordingly, we reverse the trial court’s ruling upholding the board’s

danger of contamination. whether the well at issue is so far removed from the system that there is no