2008-861, FERSON-LAKE, LLC v. CITY OF NASHUA

The petitioner, Ferson-Lake, LLC, appeals an order of the

brief and orally), for the respondent. Office of Corporation Counsel, of Nashua (Stephen M. Bennett on the

brief and orally), for the petitioner. Douglas, Leonard & Garvey, P.C., of Concord (Benjamin T. King on the to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. FERSON-LAKE, LLC

No. 2008-861 editorial errors in order that corrections may be made before the opinion goes Hillsborough-southern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as and RSA 354-A:15 (2009).

p. 2 petitioner did not comply with Hum 302.03 as required by NLUC § 16-81(c)(2) appeal. As a result, we do not consider it. however, that the petitioner asserted this claim at trial or in its notice of

302.03. The trial court affirmed, ruling that the board properly found that the Human Rights Commission has the exclusive responsibility to enforce Hum hearing on the site plan application. It does not appear from the record, arguing that the board’s finding was erroneous because the New Hampshire

reasonably based.

could enforce Hum 302.03, the regulation had expired prior to the second 2 under NLUC § 16-81(c)(2). The petitioner again appealed to the trial court, its authority in attempting to enforce the regulation; and (3) even if the board Hampshire Human Rights Commission and that the board, therefore, exceeded

determine whether there is evidence upon which they could have been

decision was unreasonable.

needs of older persons or meet exemption from such requirements) as required housing facility to provide services and facilities to meet physical or social § 16-81(c)(2); (2) enforcement of Hum 302.03 is vested solely in the New New Hampshire Administrative Rule, Hum 302.03 (expired 2006) (requiring Id.

determine whether it agrees with the planning board’s findings, but to

the burden of demonstrating that, by the balance of probabilities, the board’s unreasonableness or an identified error of law. Id. The appealing party bears prima facie lawful and reasonable and cannot set aside its decision absent superior court is obligated to treat the factual findings of the planning board as Superior court review of planning board decisions is equally limited. Id. The appeal unless it is unsupported by the evidence or legally erroneous. Id. v. Town of Derry, 157 N.H. 441, 447 (2008). We will uphold its decision on the board’s denial of its application on the ground that it did not satisfy NLUC Our review of the trial court’s decision is deferential. Derry Senior Dev. 81(c)(2). Specifically, the board found that the petitioner failed to comply with case to the trial court for consideration of its request for attorney’s fees. 154 N.H. 252, 258 (2006). Finally, the petitioner requests that we remand the

On appeal, the petitioner argues that: (1) the trial court erred in affirming the petitioner’s proposed site plan because it did not satisfy NLUC § 16-

court agreed and remanded the case to the board to make specific findings.

In September 2007, following a second hearing, the board voted to deny

for elderly housing site plan approval under NLUC § 16-81(c)(2)-(6). The trial court, contending that the board failed to address specifically the five criteria 16-450 (2005) [hereinafter NLUC]. The petitioner appealed to the superior generally. See Nashua, N.H., Rev. Ordinances ch. 190, art. III, div. 5, §§ 16-81, which governs elderly housing, and section 16-450, which governs site plans same may from time to time be amended.

p. 3 forth in the N.H. Administrative Rules Hum 302.03, as the commission if required by the commission. important housing opportunities for older persons, as set practicable, that such housing is necessary to provide of the housing units without recourse should the human rights commission

comply with all applicable rules and regulations of the human rights first hearing, the petitioner sent a certification letter stating that it would the provision of such facilities and services is not actual compliance with the human rights commission regulations. Prior to the “an empty promise” that would leave the city, local residents and future owners

to meet the physical and social needs of older persons, or if the Commission.” It contends that an applicant does not have to demonstrate when constructed. The city characterizes the petitioner’s letter to the board as provide significant facilities and services specifically designed proof that the housing project will comply with applicable rules and regulations Human Rights Commission, that every development shall becomes clear that certification for the purposes of NLUC § 16-81(c)(2) requires

with applicable human rights commission regulations if required to do so by discrimination in housing, including, if required by the requirement is read in the context of the entire elderly housing ordinance, it

“requir[es] nothing more than a certification by the applicant that it will comply New Hampshire Human Rights Commission, for age The respondent, City of Nashua, argues that when the certification

satisfied the certification requirement under NLUC § 16-81(c)(2).

construing isolated words or phrases.” meaning of a zoning ordinance from its construction as a whole, not by The petitioner asserts that this language is “clear and unambiguous” and with all applicable rules and regulations established by the

contains a certification requirement. It provides in part: elderly housing under the Nashua Land Use Code. NLUC § 16-81(c)(2)

their context that a different meaning was intended. We determine the before the Planning Board that a development will comply The applicant shall certify at the time of an application

NLUC § 16-81(c) designates the requirements for an application for

719 (2007) (citations and quotations omitted).

zoning ordinance will be given their ordinary meaning unless it appears from construction when interpreting zoning ordinances. Thus, the words used in a the intent of the enacting body. We use the traditional rules of statutory § 16-81(c)(2). “Interpretation of a zoning ordinance requires us to determine The petitioner contends that the board erroneously interpreted NLUC body.

p. 4 compliant elderly housing — a result clearly not contemplated by the enacting

would result in the city and local residents losing the benefits of legally not adhere to the standards set forth in Hum 302.03. Such determination that the human rights commission might determine later that the project did

site plan without ensuring compliance with Hum 302.03, the risk would exist

concluded that the petitioner failed to do so. If the board had to approve the for important housing opportunities for older persons. The board, however, § 16-81(c)(2), the petitioner had to meet the standards set forth in Hum 302.03

board denied the petitioner’s application. We do not characterize the board’s

inquiry. statute.”). important housing opportunities for older persons. Accordingly, under NLUC

Hum 302.03 is vested exclusively in the human rights commission.

determination that the site plan application did not satisfy Hum 302.03, the

See N.H. Admin. Rules, Hum 302.03; NLUC § 16-81. Based upon a

§ 16-81 or the human rights commission regulations prohibited the board’s ability to meet the human rights commission regulations. Nothing in NLUC absurd result and nullifying, to an appreciable extent, the purpose of the requirement under NLUC § 16-81(c)(2), the board inquired into the petitioner’s project site. The letter also stated that the project was necessay to provide that the board “enforced” Hum 302.03. In accordance with the certification We disagree with the underlying premise of the petitioner’s argument −

we now address its second argument; that is, that the authority to enforce 81(c)(2) requires the petitioner to demonstrate compliance with Hum 302.03, Having concluded that certification for the purposes of NLUC § 16- Hum 300 et seq.”

(2006) (“The legislature will not be presumed to pass an act leading to an provision of elderly facilities and services was not practicable at the proposed See Weare Land Use Assoc. v. Town of Weare,153 N.H. 510, 511-12

that it reasonably concludes will violate human rights commission regulations.

including . . . N.H. RSA 354-A:15 and the N.H. Code of Administrative Rules, state and federal laws with respect to such housing and/or medical care, section must be established and maintained in compliance with all applicable

for older persons with the basic supportive facilities and services.” NLUC The petitioner’s proposal to build elderly housing indicated that the

constructed. To rule otherwise would require the board to approve a site plan the housing project will comply with applicable rules and regulations when provision makes clear that the certification requirement demands proof that

§ 16-81. To this end, NLUC § 16-81 provides, “Housing developed in this

NLUC § 16-81 is intended “to foster development of housing alternatives

regulations. subsequently determine that the project did not meet the applicable regulation, we need not address whether the petitioner satisfied the regulation.

Hum 302.03 and not whether the petitioner met the requirements of this

Because the petitioner’s appeal focuses upon the board’s authority to apply compensatory damages and administrative fines. RSA 3 p. 5 54-A:21, I(d) (2009). orders, directing the extension of equal accomodations, and ordering

concurred.

with the power to enforce Hum 302.03 by means of issuing cease and desist

address the petitioner’s argument concerning attorney’s fees.

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

Hum 302.03 to prevent age discrimination. Indeed, the commission is vested Affirmed. In contrast, it is the responsibility of the human rights commission to enforce 302.03 in determining whether the petitioner’s site plan should be approved. In light of our holding affirming the trial court’s decision, we need not

part of its function to review site plan applications, the board applied Hum denial of the petitioner’s application as enforcement of Hum 302.03. Rather, as