2009-099, Janet and Peter Saunders v. Town of Kingston

The Law Office of Scott E. Hogan

No. 2009-099

Rockingham

the Superior Court (McHugh HICKS, J. The plaintiffs, Janet and Peter Saunders, appeal a decision of

Cleveland, Waters and Bass, P.A.

on a parcel of land in Kingston. We affirm. Konover Development Corporation, to build a Hannaford Brothers Supermarket Town of Kingston Zoning Board of Adjustment (ZBA) allowing the intervenor,

Konover Development Corp. Mark S. Derby on the brief, and Mr. Rayment orally), for the intervenor,

THE SUPREME COURT OF NEW HAMPSHIRE orally), for the plaintiffs.

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 to press. Errors may be reported by E-mail at the following address: 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 issue; and (3) the ZBA and the superior court erred in refusing to consider the p. 2 provision, and the trial court erred in not allowing the plaintiffs to raise this state law, the planning board was required to apply the most restrictive zoning decision on appeal was not final; (2) under the Kingston Zoning Ordinance and matter jurisdiction because the planning board decision underlying the ZBA On appeal, the plaintiffs contend that: (1) the trial court lacked subject

granted approval for the proposed supermarket. Ouellette v. Town of Kingston ZBA. The ZBA found that the Historic District Commission had erred and District Commission. The request was denied and Konover appealed to the In 2006, Konover applied for a certificate of approval from the Historic

this court. appeal. The plaintiffs now appeal the trial court’s disposition of their case to The plaintiffs appealed to the superior court which dismissed their

Residential District. 2 ordinance was amended so as to prohibit most retail uses in the Rural from the Historic District Commission. In March 2004, Kingston’s zoning not be built in Historic District I unless a certificate of approval was obtained grocery store was a permitted use in the Rural Residential District, but could The plaintiffs’ application for rehearing was denied. the Kingston Planning Board regarding its proposal. At that time, a retail district ordinance had been previously decided and would not be reconsidered. In January 2004, Konover engaged in a non-binding consultation with location in the rural residential district and alleged violations of the historic the ZBA denied the appeal, ruling in part that the issues related to the site’s rural residential district and the wetlands conservation district. On April 10, Zoning Ordinance, including provisions relating to the historic district, the ZBA, contending that the approval violated various provisions of the Kingston conditional site plan approval for the project. The plaintiffs appealed to the On January 22, 2008, the Kingston Planning Board granted Konover

court resulted in affirmances upholding that approval. Id. at 605. 157 N.H. 604, 607 (2008). Successive appeals to the superior court and this

District. however, would be located on property lying within the Rural Residential

provide ingress and egress to the supermarket. The supermarket itself, portion within Historic District I contains frontage on Route 125 and would District, while the remainder lies within the Rural Residential District. The Kingston. Approximately one-third of the parcel lies within the Town’s Historic At issue is an eleven-acre parcel abutting Main Street and Route 125 in The trial court’s order recites, or the record supports, the following facts. inspection.

p. 3 board has been filed and first becomes available for public must be filed within 30 days after the decision of the planning appellate review depending upon the nature of the claim.” Hoffman v. Town of petition for a writ of certiorari. The petition for a writ of certiorari “afford a person aggrieved by a planning board decision two distinct avenues of plat or subdivision is appealable directly to the superior court by a (Supp. 2009). We agree. Read together, RSA 677:15, I, and RSA 676:5, III days. Second, a decision made by a planning board concerning a the instant case was appealed under RSA 676:5, III (2008) and RSA 677:4 appealed to the superior court under RSA 677:4 . . . within thirty because that decision was appealed under RSA 677:15, I (Supp. 2009), while

determined by local ZBA rules. The ZBA’s decision can then be Konover counters that Judge Smukler’s decision is not relevant here appealed to the ZBA. The time limit for filing such appeal is 3

time as the Planning Board granted final the site plan was conditional, no appeal therefrom would be ripe “until such The plaintiffs first argue that because the January 22, 2008 approval of or application of the zoning ordinance, that decision may be of the zoning ordinance, or upon any construction, interpretation, First, if the planning board makes a decision based upon the terms Chester Rod & Gun Club v. Town of Chester Gilford, 147 N.H. 85, 88 (2001).

lack[ed] jurisdiction.” concluded that because the “board’s decision was not final[,] . . . [the] court contemplated “further discretionary action on the part of the board,” and the site plan and allow it to be recorded,” found that one of the conditions “imposed 17 conditions, which must be completed before the board would sign that the ZBA’s decision was unreasonable. Konover’s project. There, the trial court noted that the planning board had dismissing petitions for certiorari review of the conditional site plan approval of 677:15.” They cite a Superior Court (Smukler court must treat all factual findings of the ZBA as prima, J.) order in related cases does not support it or it is legally erroneous. For its part, the trial approval within the meaning of RSA

(quotation, citations and brackets omitted).

by the balance of probabilities, based on the evidence before it, lawful and reasonable. It may set aside a ZBA decision if it finds

We will uphold the trial court’s decision unless the evidence

provisions of the zoning ordinance. We address each contention in turn. plaintiffs’ argument that Konover’s proposed development violated numerous p. 4 Rural Residential District and the Wetlands Conservation District, the planning because portions of the eleven-acre parcel fall within the Historic District, the under the provisions of the Kingston Zoning Ordinance.” They assert that has been determining which zoning district(s) apply to the subject property The plaintiffs next contend that “[a]nother threshold issue in this case

of the town,” Prop. Portfolio Group when made. Such decisions do not “contemplate additional action on the part zoning ordinance, are “final,” for purposes of ripeness for appellate review, based upon, or involving the construction, interpretation or application of, a Town of Plainfield decisions or determinations appealable under RSA 676:5, III, namely, those, 160 N.H. ___ (decided July 20, 2010). We note that this holding is consistent with our recent holding in Atwater v. zoning ordinance.” RSA 676:5, III. We agree with Konover that the type of the plaintiffs’ contention that the trial court lacked subject matter jurisdiction. ordinance, or upon any construction, interpretation, or application of the under RSA 677:2 (Supp. 2009), see decision or determination which is based upon the terms of the zoning RSA 677:3, I (2008). Accordingly, we reject superior court, subject to the requirement of a prior application for rehearing appeal to the ZBA, and then to the superior court, of “any [planning board] are immediately appealable to the ZBA under RSA 676:5, III, and further to the planning board is appealable under RSA 677:15, I. See As noted above, RSA 676:5, III and RSA 677:4, taken together, allow for determine the applicable issue at the planning board level. We hold that they cases originating under a prior statute, that only a final decision of the petition the superior court for review. RSA 677:15, I. We have held, in a line of, 154 N.H. at 615, but conclusively by any decision of the planning board concerning a plat or subdivision” may RSA 677:15, I, provides, in pertinent part, that “[a]ny persons aggrieved

decision appealable under RSA 677:15, I. Id. at 615-16. conditional approval imposing only conditions subsequent constitutes a final Portfolio Group v. Town of Derry, 154 N.H. 610, 615 (2006). Thus, a Conditions subsequent, on the other hand, do not delay approval.” Prop. action on the part of the town, and, thus, cannot constitute final approval. finality and appealability. “[C]onditions precedent . . . contemplate additional between conditions precedent and conditions subsequent as it relates to Wolfeboro, 159 N.H. 747, 750-51 (2010). We have further noted the distinction Town of Merrimack, 125 N.H. 321, 327 (1984); Collden Corp. v. Town of

573 (2003). preserve its rights.” Route 12 Books & Video v. Town of Troy, 149 N.H. 569, statutory procedures for appellate review of zoning and planning issues to zoning and planning aspects of that decision must follow the respective based upon both zoning and planning issues, a party aggrieved by both the Id. (quotations and citations omitted). “[W]hen a planning board decision is p. 5 Kingston Zoning and Building Code

review . . . [as provided]. (providing said use is allowed in the underlying district) subject to

another zoning district, the proposed use shall be permitted

. . . In cases where the Wetlands Conservation District overlays

The trial court in this case found that all parties to Ouellette

. . . .

position taken by all of the parties to the Ouellette The trial court declined to consider this argument based upon the 5

doctrine from now arguing that the regulations for a different zoning district that position in Ouellette, the plaintiffs were precluded by the law of the case supermarket would be allowed.” The court then concluded that having taken 4.10.2 exclusively controlled the determination as to whether or not [Konover’s] the plaintiffs herein, “conceded that Town of Kingston District Regulation reversing a decision of the Historic District Commission. Ouellette, including

§ 4.10.2. considered within the District.” p. 5 Kingston Zoning and Building Code, art. 4.10, that “[p]roperties whose frontage lies partially within the District, shall be 4.10.2, which sets out the boundaries of Historic District I, provides, in part, residential district.” Id. at 605-06. Specifically, zoning ordinance section within that district, although two-thirds of the lot actually lies within the rural considered to be within the town’s Historic District I due to the lot’s frontage at 614, which applied, we noted, because “[b]y ordinance, the entire lot is 612-13. Our review required us to interpret the historic district regulations, id is more restrictive shall govern.. another zoning district in the Town of Kingston, that district which, 157 N.H. at addressed whether the evidence supported findings made by the ZBA in

restrictive zone. district because, as it now “prohibits the proposed use outright,” it is the most under these provisions, the rural residential district is the applicable zoning restriction or higher standard shall be controlling.” The plaintiffs argue that existing ordinance or other regulation, the provision which imposes the greater is enacted or a regulation is adopted which differs from the authority of an cite RSA 676:14 (2008), which provides: “Whenever a local land use ordinance Where the Wetlands Conservation District is superimposed over, art. IV, §§ 4.60.2(b), 4.60.6(b). They also

district: provisions of the zoning ordinance dealing with the wetlands conservation the most restrictive zoning provision. Specifically, they cite the following board was required by the Kingston Zoning Ordinance and state law to apply p. 6 Taylor v. Nutting

Merrimack Valley Wood Prods. v. Near

and on a second appeal.

retrial of the same case.

reached and decided in the first appeal remain open on remand of an appeal and present it on a second appeal, points of law not argument on a point of law necessarily involved in the disposition of the case. Thus while a party on the first appeal may not omit

of the rights of the same parties in any subsequent appeal or states a rule of law, it is conclusively established and determinative

or by necessary inference from the disposition, constitute the law

stages of the same litigation. Thus, where an appellate court

[o]nly such issues as have actually been decided, either explicitly,

case, and becomes binding precedent to be followed in successive The question decided on the first appeal is known as the law of the ordinarily reexamined in the same case upon a subsequent appeal.

Under the law of the case doctrine, 6

that contention in this appeal. omitted). Accordingly, the law of the case doctrine precludes consideration of of law necessarily involved in the disposition of” Ouellette decided, in Ouellette. Id. (quotation regulations now dictate the answer to that inquiry is an “argument on a point contention that RSA 676:14 and Kingston’s wetlands conservation district Questions once decided on appeal to this court are not the eleven-acre parcel. Ouellette, 157 N.H. at 605-06. The plaintiffs’ The issue decided in Ouellette was which zoning district’s regulations apply to

, 133 N.H. 451, 456 (1990) (quotation and brackets omitted).

because the legal point they now advance was not presented, much less The plaintiffs contend that the law of the case doctrine does not apply

The law of the case doctrine provides:

time. We disagree. planning board and that they could not have raised these issues before that provisions first became relevant when the site plan application came before the Kingston Zoning Ordinance, or to . . . RSA 676:14.” They assert that these contain any reference to the ‘Wetlands Conservation District’ provision of the

applying the law of the case doctrine. apply to the project. On appeal, the plaintiffs argue that the trial court erred in p. 7 Powell

again by presenting appeals in other related cases such as this.

The plaintiffs do not dispute that they were parties to Ouellette

thus decided the question may not be reopened or considered

applicable. The final decision in Miller Therefore, on reasoning similar to that in Edwards and p. 7 Powell, we conclude Hannaford supermarket on the eleven-acre parcel in Kingston – is the same. subject matter of this case and Ouellette the successors to the parties litigants in Miller v. Bell – town approval for the building of a , and the

, 680 S.W.2d at 130 (citations omitted).

The Court of Appeals of Kentucky ruled similarly in Miller v. p. 7 Powell question concerning the existence of the 1978 district, and once

uniformity of decisions and judicial economy. The doctrine is based on public 746 (Ky. 1970)], and, since the identity of this subject matter and “operates to narrow the issues in successive stages of litigation and fosters, [453 S.W.2d The Court of Appeals of Texas noted that the law of the case doctrine Since the parties to this action are either the same parties or

district purported to have been created in 1978 remained in existence: doctrine, the p. 7 Powell court declined to reexamine the question whether a library attempt to create a library district in Todd County. Under the law of the case S.W.2d 128 (Ky. Ct. App. 1984), the second of successive cases involving the

appeal.” Id. again rule on a matter that was directly ruled on and disposed of in a former the prior case). Under those circumstances, the Edwards court “refuse[d] to case related to the filling of a vacancy created by the very promotion effected in a vacancy in a civil service position occurs, decided in a prior case, in a new of those presented in” the prior case. Id. (declining to reexamine issue of when in the prior case and “the facts at issue [in the present case were] the progeny applie[d] equally” to the case before it, in which one of the parties was a party to subsequent appeals of the same case, the rationale behind the doctrine then reasoned that “[w]hile the doctrine of the law of the case generally applies Edwards, 974 S.W.2d 148, 151 (Tex. App. 1998) (citation omitted). The court

purpose, however, convinces us that it applies in this case. Valley Wood Prods., 152 N.H. at 201. An examination of the doctrine’s litigation” or to “any subsequent appeal or retrial of the same case.” Merrimack doctrine. As noted, the doctrine applies to “successive stages of the same Ouellette, raising another question as to the applicability of the law of the case We note that the instant case is not technically a subsequent appeal of p. 8 Affirmed

them. For the foregoing reasons, we affirm the decision of the trial court. citing ordinance provisions and claiming that the planning board violated agree with Konover that the plaintiffs did not meet their burden by merely record support for them, a failure they have not remedied before this court. We made factual allegations in the motion itself, the plaintiffs failed to cite any Konover Development” (bolding omitted), and listing 48 provisions. Where they Act or Omission by The Planning Board in its Site Plan Review for the proposed minimum – Kingston Ordinances and Portions Thereof that were violated By ZBA, the plaintiffs filed an addendum stating that “[t]he [f]ollowing are – at a or unreasonable.” RSA 677:6 (2008). In their motion for rehearing before the zoning board of adjustment . . . to show that the order or decision is unlawful proof shall be upon the party seeking to set aside any order or decision of the RSA 677:6 provides in part that “[i]n an appeal to the court, the burden of the decision or order is claimed to be illegal or unreasonable.” RSA 677:4. unreasonable, in whole or in part, and shall specify the grounds upon which superior court “shall set forth that such decision or order is illegal or RSA 677:4 provides that a petition for review of a ZBA decision by the

concurred. 8 BRODERICK, C.J., and DALIANIS, DUGGAN and CONBOY, JJ.,

believe the ZBA and planning board erred. We agree. be unreasonable and they should have actually shown the court why they have provided specific grounds upon which the decision or order is claimed to. citation omitted.) Konover argues that under RSA 677:4, the plaintiffs should violated, with no additional discussion or effort on [their] part.” (Quotation and “present a broad list of Zoning Ordinances identified by [them] as being plaintiffs failed to do more, before either the ZBA or the superior court, than properly found the plaintiffs’ related arguments to be “without merit” where the that the trial court properly declined to address each alleged violation and numerous other provisions of the zoning ordinance. In reply, Konover argues “without comment” their contention that Konover’s development violates Finally, the plaintiffs argue that the trial court erred in dismissing

zoning district applicable to the subject parcel. that the law of the case doctrine applies here to preclude reexamination of the