2007-653, CLINTON A. JOHNSON & a. v. TOWN OF WOLFEBORO PLANNING BOARD

No. 2007-653 Carroll

replace an existing cottage with a larger dwelling. The Johnsons’ unit is the Johnsons’ unit by a PHC common area. Sheepshead developed a plan to (Sheepshead), acquired a lakefront parcel adjacent to PHC and separated from

Winnipesaukee. In July 2003, the intervenor, Sheepshead Bay, LLC

Harbor Condominiums (PHC), a development located in Wolfeboro along Lake

The record supports the following. The Johnsons own a unit at Pine , of Concord (James P. Bassett, of Laconia (Regina A. Nadeau

of standing. We reverse and remand.

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

of a decision of the Town of Wolfeboro Planning Board (planning board) for lack order of the Superior Court (Fitzgerald, J.) dismissing their petition for review HICKS, J. The petitioners, Clinton and Cynthia Johnson, appeal an

brief and orally), for the intervenor, Sheepshead Bay, LLC. Normandin, Cheney & O’Neil, PLLC on the

the brief, and Mr. Bassett orally), for the petitioners. to press. Errors may be reported by E-mail at the following address: Orr & Reno, P.A. and Jeffrey C. Spear on

TOWN OF WOLFEBORO PLANNING BOARD & a.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as demonstrated their right to claim relief.” Ossipee Auto Parts v. Ossipee

p. 2 determine, based on the facts, whether the plaintiffs have sufficiently

the trial court must look beyond the plaintiffs’ unsubstantiated allegations and When a “motion to dismiss . . . challenges the plaintiffs’ standing to sue,

our discussion below, we will assume a timely filing for purposes of this appeal.

The trial court did not address the issue of timeliness in its order. Given

untimely filed and that they have standing to bring the action.

challenge the court’s ruling, arguing that Sheepshead’s motion to dismiss was

standing, which was subsequently granted. On appeal, the Johnsons to the superior court. Sheepshead filed a motion to dismiss for lack of On May 31, 2006, the Johnsons appealed the planning board’s decision

granted the special use permit.

special use permit. At the conclusion of the hearing, the planning board the hearing by its President, Dan Calileo, did not object to approval of the planning board hearing concerning the permit. The PHC board, represented at

conservation district or buffer zone. They also participated in the May 2, 2006

criteria set forth in the ordinance for obtaining a special use permit in the the planning board arguing that Sheepshead’s proposal failed to satisfy the dwelling and septic system. The Johnsons submitted a written document to

special use permit to replace the existing dwelling with a new three-bedroom

On March 31, 2006, Sheepshead applied to the planning board for a

adjacent to the Johnsons’ unit.

within which lie portions of the PHC common area, including that portion

established a Wetlands Conservation Overlay District (conservation district),

zoning ordinance, a special use permit is required. The ordinance also the wetlands buffer zone established by Article II of the Town of Wolfeboro’s would be a larger, year-round home. Because the proposed dwelling lies within

While the existing structure is only seasonal, the proposed structure

would eliminate the need for a variance. variance was denied, however, and Sheepshead developed a new plan that

voted not to oppose the proposal in exchange for certain considerations. The

(PHC board) for its initial plan, which required a variance. The PHC board Sheepshead wished to garner support from the PHC board of directors

common area in which they own an undivided interest.

footprint, would interfere with the use and enjoyment of their unit and the structure, which would be located closer to the property line and have a larger proposed structure. The Johnsons assert that Sheepshead’s proposed

Sheepshead’s parcel and less than five hundred feet from Sheepshead’s located approximately two hundred feet from the boundary line with p. 3 [sic bringing any proceedings which may be instituted on behalf of the Owners’

means the provisions of the Declaration, the[] Bylaws, and [] Rules, and

the bylaws provide that the board shall be responsible for “enforcing by legal directed to be exercised and done by the Unit Owners’ Association.” Finally, all such acts and things as are not by the Condominium Act or by the[] Bylaws

necessary for the administration of the affairs of the Condominium and may do

for the common areas. The board also has “all of the powers and duties

There is no question that the PHC bylaws give the board responsibility

and responsibilities assigned by this chapter to the unit owners’ association.”

. . . and may delegate to such board, among other things, any of the powers directors, “the bylaws shall specify the powers and responsibilities of the same RSA 356-B:42, II (1995). The Act also provides that if there is a board of

condominium. through the common areas and accept easements benefiting the unit owners and their successors in title to grant easements

have the irrevocable power as attorney-in-fact on behalf of all the

. . . the board of directors of the unit owners’ association . . . shall

administrative authority or its authority to bring proceedings, but whether, by

Except to the extent prohibited by the condominium instruments,

The Condominium Act provides, in pertinent part, that:

The question presented here is not the extent of the board’s

participation in land use decisions regarding abutting properties. proceedings relates to the enforcement of PHC’s internal documents, not to

owners and deprived them of standing to object to the development. into an enforceable contract with Sheepshead which effectively bound the unit maintain actions with respect to the common area, and that the board entered

owners. Moreover, the language concerning the board’s authority to bring

unit owners’ association, that the board has the exclusive authority to

said to be exclusive of the unit owners’ legal rights as individual property ].” Nowhere in the PHC Declaration or bylaws, however, is this authority

delegated to the PHC board the exclusive authority to contract on behalf of the separate from that of PHC. Sheepshead argues that the condominium owners it decided not to take action, and that the Johnsons did not assert an interest

with Sheepshead, that the board was acting on behalf of the unit owners when

Planning Board

The trial court found that the PHC board had the authority to contract

Joyce v. Town of Weare, 156 N.H. __, __, 937 A.2d 919, 923 (2007). are not in dispute, we review the trial court’ s determination de novo. See

, 134 N.H. 401, 403-04 (1991). Because the underlying facts individual unit owners.

p. 4 bylaws granting the board the authority to contract away the standing rights of individual unit owners as there is no provision in the PHC declaration or such a contract did exist, however, it could not abrogate the standing of

proposal, for which the requisite variance was denied. Even assuming that

indicates only that the board voted not to oppose Sheepshead’s earlier consideration. No written agreement appears in the record. The record Sheepshead’s application for a special use permit in exchange for certain

land use decisions. In Bernstein

claims may arise from something that takes place in a common area.” Gordon from asserting claims relating to their individual rights even though such

board decision in their individual capacity. We disagree. It is unclear from the board to argue that the Johnsons were precluded from appealing the planning Sheepshead relies on a purported contract between itself and the PHC

owners have standing to assert individual rights, and, specifically, to challenge

protect unit owners’ common rights does not prevent individual unit owners

for seeking damages for trespass” onto the common area. Strauss

2007), review denied, 877 N.E.2d 599 (Mass. 2007). v. State Building Code Appeals Board, 872 N.E.2d 794, 800 (Mass. App. Ct. Nevertheless, Massachusetts courts have held that condominium unit

concluded that a condominium association’s right “to proceed exclusively to only in relation to actions involving common areas. See involving common areas. See condominium.” Id. at 136. The Massachusetts Court of Appeals recently condominium associations is exclusive of that of individual unit owners do so independently to litigate issues that affect the use of [an individual] 137. Bernstein distinguished actions involving common areas from “the right “likely to have some similar impact on a condominium’s common areas.” Id. at Supreme Judicial Court of Massachusetts held that the plaintiffs had “no basis bar his challenge of a zoning board decision even though such a decision was

including limited common elements, is restricted to condominium unit owners’

183A, § 10(b)(4) (West 2003)). N.E.2d 133, 136 (Mass. App. Ct. 2001) (interpreting Mass. Gen. Laws Ann. ch.

associations are granted by statute the exclusive authority to litigate actions owners from doing so. Other jurisdictions holding that the standing of at 981. Indeed, in Massachusetts, unlike New Hampshire, condominium weighing in on the land use decision, the board precluded individual unit , 631 N.E.2d

631 N.E.2d 979 (Mass. 1994), which the trial court relied upon in its order, the

that “standing to institute claims or actions concerning common elements, Mason, 639 S.E.2d 308, 312 (Va. 2007) (interpreting Virginia statutes such

p. 5 proceedings. Id

approximately two hundred feet from Sheepshead’s parcel and less than five construction of a competing station. Id

factors, the facts in this case confer

district, and the petitioners had participated extensively in the ZBA In Thomas v. Town of Hooksett subject to the ZBA decision, both properties were located within a conservation standing as their property was located within one thousand feet of the property

standing upon the Johnsons as a matter of law. The Johnsons’ unit is may decide the issue as a matter of law. Simpson v. Young overturning the revocation of a building permit that would have allowed the Based upon application of the Weeks

. at 721. decision in the superior court. Consistent with Weeks

planning board decision have standing to file a petition for review of that Pursuant to RSA 677:15, I (Supp. 2007), “persons aggrieved” by a 719-20. We upheld the trial court’s determination that the petitioners had Conservation District or within one thousand feet of an existing station. Id. at in Weeks prohibited the building of new gas stations within the town’s Groundwater prospective builder variances from two zoning ordinance provisions that

when the trial court has not addressed a factual issue, but the record reveals an existing gas station challenged a zoning board of adjustment (ZBA) decision person aggrieved. Joyce Ordinarily, we would remand for application of this analysis. However, issue of standing upon facts similar to those in this case. There, the owners of

A.2d at 922. and the plaintiff’s participation in the administrative hearings. Id. at __, 937 is sought; the type of change proposed; the immediacy of the injury claimed;

: the proximity of the plaintiff’s property to the site for which approval

making this determination, the court may consider the factors first articulated bestow standing is a factual determination. Id. at __, 937 A.2d at 922. In interest in the planning board’s decision is sufficiently direct and definite to

direct definite interest in the outcome of the proceedings to be considered a

standing as a matter of law. alternatively, that they have standing under the analysis set forth in Weeks Weeks factors confer standing upon the Johnsons, and we therefore find The Johnsons argue that they enjoy automatic standing as abutters, or, (2006). Here, a reasonable fact finder necessarily would conclude that the

hold that the trial court erred in failing to apply it. address the latter argument, as we agree that the Weeks analysis controls and Restaurant Corp. v. City of Dover, 119 N.H. 541, 545 (1979). We need only p. 6 Reversed and remanded

planning board’s decision. Accordingly, we hold that the Johnsons have standing to appeal the

planning board hearing. which they frequently use. Finally, the Johnsons participated actively in the boundary with Sheepshead’s parcel and leads to a small beach and waterfront

situated at the head of a path that runs along the stone wall common

closer to the property line than the current structure. The Johnsons’ unit is proposed structure will create a significantly larger footprint and is located encroach much less upon the district on the basis of wetland protection. The

board has repeatedly denied applications for much smaller structures that

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

within the conservation district. According to the Johnsons, the planning is a significant deviation from the treatment of prior applications to build determining whether to grant the special use permit, and that its approval here

assert that the planning board failed to apply the proper standard in standing. Second, the proposed change is a significant one. The Johnsons