2008-632, Motorsports Holdings, LLC v. Town of Tamworth

The intervenors, Amy K. Berrier and other abutters,

brief and orally), for the intervenors. Rath, Young and Pignatelli, P.C., of Concord (Andrew W. Serell on the

Kevin M. Baum on the brief, and Mr. Quarles orally), for the petitioner. Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. MOTORSPORTS HOLDINGS, LLC

No. 2008-632 editorial errors in order that corrections may be made before the opinion goes Carroll 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 to the project and, therefore, no special use permit was required.

p. 2 comprehensive than the WCO, the WCO, by its own terms, was not applicable that because relevant state and federal regulations were more stringent and permit under the WCO. Motorsports appealed, arguing, among other things,

acquisition of state and federal permits, it needed to apply for a special use

summary judgment, the trial court ruled that regardless of Motorsports’

review.

would be bound by the result. The Town chose not to participate. Later, on to the action, and notified the Town that, whether or not it participated, it beginning construction. The court ruled that the Town was a necessary party

before the Tamworth Planning Board (planning board) had completed its Wetlands Conservation Ordinance (WCO); however, it withdrew its application Motorsports also had applied for a special use permit, pursuant to Tamworth’s wetlands on the entire site that would be affected by the project, stating: special use permit. In its application, Motorsports identified the percentage of

Motorsports would have to obtain a special use permit under the WCO before

distinct wetlands areas. wetlands and waterbodies, which represents 6% of the total land intermittent streams. In total, construction would affect at least sixteen The Project Site contains a total of 15.14 acres of combined

land in Sandwich to mitigate the negative environmental impacts of the project. Before our decision was issued, however, Motorsports applied for a

Motorsports was obligated to obtain the local permit. Id. at 497. declaratory judgment from the superior court, requesting a ruling that Anderson, 155 N.H. at 494. We rejected this argument and held that

filling 14,759 square feet of wetlands and would affect 16,952 square feet of

DES required Motorsports to provide a conservation easement on 107 acres of

Subsequently, residents from the Town of Tamworth sought a

access road, and parking facilities. Construction would involve dredging and repair, servicing, and garaging of racing vehicles, as well as a hotel, restaurant, “3.1-mile long, European-style road course” and structures to support the States Army Corps of Engineers; and (4) a water quality certificate from DES. alteration-of-terrain permit from DES; (3) a wetlands permit from the United New Hampshire Department of Environmental Services (DES); (2) a site-specific Motorsports has obtained: (1) a dredge-and-fill wetlands permit from the

It wishes to build a private country club and motorsports facility, including a Motorsports owns approximately 250 acres of land in the Town of Tamworth. our prior decision in Anderson v. Motorsports Holdings, 155 N.H. 491 (2007). We draw the facts from the certified record, the trial court’s order, and

p. 3 the special use permit it was seeking. On November 6, the planning board portion of the review process, and Motorsports offered to propose conditions to

the November 1 hearing, the planning board concluded the public hearing

application, and members of the public presented their concerns. At the end of of its proposed project, the TCC presented its recommendation to deny the review process, Motorsports had an opportunity to make detailed presentations

public hearings on October 17 and November 1. During the planning board

the changes increased impacts to buffer zones. The planning board conducted presented an amended plan to the planning board on September 27. Some of of 2006. In an effort to address concerns raised by the TCC, Motorsports

to each wetlands impact (3 proposed project would cause, (3) the particular section of the WCO applicable the nature of the existing wetland, (2) the nature of the impact that the

subcommittee), reviewed the application at a series of meetings during the fall

anticipated impacts. It itemized seventeen wetland impact areas, describing (1)

(TCC), including its Wetlands and Subsurface subcommittee (TCC

streams and drainageways. impact to the affected wetland areas. ways, and parking areas. There are no buildings of [ impacts are primarily associated with the grading of roads, access ft buffer to approximately 2.1 acres (20.4%). These buffer zone

the particular design efforts intended to protect the wetlands, and the resulting

Both the planning board and the Tamworth Conservation Commission buffer area.

approximately one half of which are intermittent or seasonal the particular design of the proposed project intended to minimize a direct

wetlands buffer zone governed by the WCO: The application also described the design and scope of the proposed project,

subsurface sewage disposal systems located within the 25-foot

Conservation District], which represents approximately 4.8% of the approximately 31,711 square feet (0.73 acres) to the [Wetlands encompasses approximately 10.3 acres. The Project layout The total area of site within the 25-foot buffer to wetlands

The application also identified the land area that fell within the 25-foot

caused by the proposed project] result in a total disturbance of area of the parcel (251 acres). . . . The[] direct impacts [to wetlands constitutional obligation to do so under Part I, Article 1 of the State

p. 4 planning board failed to provide guidance to the petitioner in violation of its

areas. Second, it concluded that by voting on the project as a whole, the criteria under the WCO to both the access way and non-access way impact board erred in voting on the project as a whole by applying the Section A

appealed.

board committed three errors of law. First, it concluded that the planning

issues. The intervenors appealed to this court, and Motorsports cross- The trial court’s review is limited: upon which they could have been reasonably based. board’s findings, but to determine whether there is evidence vacated the planning board’s decision and remanded after concluding that the is not to determine whether it agrees with the planning Motorsports’ application for a special use permit. Rather, the trial court sufficient evidence upon which the planning board could reasonably deny

decision and remanded the matter. It declined to reach certain procedural legal argument. Subsequently, the trial court vacated the planning board’s probabilities, on the evidence before it, that said decision is unreasonable.” president of Motorsports, testified and the parties presented offers of proof and

decision was unreasonable. The review by the superior court

In this case, the trial court did not reach the issue of whether there was

is unsupported by the evidence or legally erroneous. Upton, 157 N.H. at 118. also RSA 677:15, V. We will uphold a trial court’s decision on appeal unless it Upton v. Town of Hopkinton, 157 N.H. 115, 118 (2008) (citations omitted); see

when there is an error of law or when the court is persuaded by the balance of court conducted a hearing in June 2008, during which one witness, the

trial court that, by the balance of probabilities, the board’s law. The appealing party bears the burden of persuading the decision absent unreasonableness or an identified error of prima facie lawful and reasonable and cannot set aside its [It] must treat the factual findings of the planning board as

or affirm, wholly or partly, or may modify the decision brought up for review Tamworth to intervene, including the appealing intervenors before us. The trial RSA 677:15, V (Supp. 2009), which provides that the trial court “may reverse superior court, which granted leave to certain abutters and residents of The trial court’s review of the planning board’s decision was governed by of seven Section A criteria under the WCO. Motorsports appealed to the

application for the permit, deciding that the proposed project did not meet five On November 8, the planning board voted to deny Motorsports’ under RSA 676:4, I(h). p. 5 grounds for disapproving the application for a special use permit as required find that the planning board did not provide an adequate statement of the

only as a work session. It also contends that the trial court erred by failing to

rendered a final vote at the November 8 meeting that had been publicly noticed

erred by failing to address whether the planning board illegally deliberated and I(h) (Supp. 2009). In its cross-appeal, Motorsports argues that the trial court forth grounds for denying Motorsports’ application as required by RSA 676:4,

application has been referred to the Commission and to the Health water, flooding, or high water tables for extended periods of time.”

and impact on wetlands in the Town of Tamworth; it does not regulate zoning.

than applicable state and federal wetlands regulations. They also contend that their adjacent buffer zones. determinations addressing whether and where the WCO was more stringent compelling the planning board on remand to initially make explicit following uses in the Wetlands Conservation District when the ordinance was established “to regulate the uses of lands subject to standing proper public notice and public hearing, for undertaking the 1. Special Use Permits may be issued by the Board, after

respect to special use permits, the WCO provides in part: ordinance sets forth a regulatory permitting scheme that governs the use of require a special use permit while others do not. See id. art. D, art. E. With Some activities and uses within the wetlands conservation district

“wetlands conservation district,” which includes “wetlands,” “waterbodies,” and WCO “Title and Authority.” In particular, the ordinance regulates the Motorsports was entitled to approval of proposed “access ways”; and (3) Tamworth

the proposed use is an appropriate use of land is a zoning question). The Cf. Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 78 (2004) (whether

We begin with an overview of the relevant portions of the WCO. The

(2) ruling that the planning board was required to separately address whether assistance required under Part I, Article 1 of the New Hampshire Constitution; that the planning board failed to provide Motorsports with the measure of

federal regulations as required by our decision in

On appeal, the intervenors argue that the trial court erred by: (1) ruling

98.

determine whether and where the WCO is more stringent than state and Constitution. Third, it concluded that the planning board erred in failing to in Section A.

flooding, . . . [and] control sediment . . . .”

substances. surface and ground water by sewage, sediment, or noxious

that the proposed use does not conflict with the purposes and intentions listed

circumstances, including, “the effects on the wetland’s capacity to . . . prevent wetlands which provide flood protection. 2. Prevent the destruction of, or significant changes to natural

naturally occurring wetlands which will contribute to pollution of intentions listed in Section A of this ordinance. 1. Prevent the development of structures and land uses on

that is, a use that is “not otherwise permitted,” an applicant also must show It is intended that this Ordinance shall:

water, flooding, high water tables for extended periods of time. land areas which have been found to be subjected to standing uses, the planning board is required to consider certain facts and safety and general welfare by controlling and guiding the use of The purpose of this Ordinance is to protect the public health,

A. Purpose and Intent

proposed use is not in conflict with any and all of the purposes and Id. art. E.1(c). That section, in turn, provides:

considering the propriety of a proposed special use under the third category, protection, and/or recreational uses. Id. art. E.5(a). However, when

application for a permit that implicates any of these three categories of special Id. art. E (italics, parentheses, and asterisks omitted). In reviewing an

Wetlands Conservation District, if it can be shown that such (c) The undertaking of a use not otherwise permitted in the

waterbody for wildlife, on-site detention of surface runoff, fire (b) Water impoundments for the purposes of creating a

upon the wetland. constructed as to minimize any detrimental impact to such uses easements, including power lines and pipe lines, if so located and (a) Streets, roads, and other access ways, utility right-of-way

. . . .

hearing. Officer for review and comment at least thirty (30) days prior to the we decide cases on constitutional grounds only when necessary, p. 7 assistance required under Part I, Article 1 of the State Constitution. Because provide an adequate record of the board’s reasoning for us to review on similar to the issue raised by the intervenors regarding the measure of

“sufficiently apprise [an applicant] of the planning board’s reasoning and the statutory issue was not likely to arise on remand. The statutory issue is

provision shall apply.” State or Federal law or regulation, or other Town ordinance, the more stringent planning board.” This statutory requirement compels the planning board to ordinance provides: “Where any provision of this ordinance is in conflict with it vacated the planning board’s decision on other grounds and determined that ground for such disapproval shall be adequately stated upon the records of the “In case of disapproval of any application submitted to the planning board, the

“not otherwise permitted” special use category. Additionally, the wetlands court concluded that it was unnecessary to decide this statutory issue because provided grounds for its decision in accord with RSA 676:4, I(h). The trial planning board was required to comply with RSA 676:4, I(h), which provides: the trial court declined to address; namely, whether the board adequately The parties agree that in denying the special use permit application, the

issue and decline to address the constitutional issue. N.H. Div. of Aeronautics, 152 N.H. 30, 35 (2005), we address the statutory

uses under subsection E.5 and the Section A requirements that apply to the

We turn first to a request, made by both parties, that we reach an issue

parties’ arguments.

overlap exists among the review standards applicable to all proposed special Id. art. A (italics, parenthesis, and asterisk omitted). We observe that some

harmoniously, appropriately and safely located in wetlands. 7. Encourage those low-intensity uses that can be

might be required as a result of misuse or abuse of wetlands. providing and/or maintaining essential services and utilities which 6. Prevent expenditure of municipal funds for the purposes of

bearing stratum) and aquifer recharge areas. 5. Protect potential water supplies and existing aquifers (water-

4. Protect wildlife habitats and maintain ecological balances.

both floral and faunal. 3. Protect rare, unique, and unusual natural communities, p. 8 Intervenors’ Supplemental Certified Record,” which includes a copy of the

We disagree.

meeting that contains gaps. We also received a spiral binder titled “Index to

Motorsports’ application for a special use permit in accord with RSA 676:4, I(h). adequate statement of the planning board’s reasons for disapproving one. Rather, the intervenors argue that the November 8 minutes constitute an 8 depends upon the particular case. “adequately state[]” the ground for disapproval in accord with RSA 676:4, I(h)

by the planning board includes a copy of the minutes of the November 8

contest Motorsports’ assertion that the planning board did not provide it with

on each reason given in the letter). Ultimately, whether planning board records

long, dead-end road); As an initial matter, we observe that the certified record forwarded to us

decision is not included in the certified record, and the intervenors do not 72 hours after the decision is made, as required by RSA 676:3.”). A written reasons for denying the application, and minutes reflected extended discussion will be made available for public inspection at the Town Office building within Administrative Procedure § 5.K (“Notice of decision using Appendix D.2 or D.3 application for a local permit); Town of Tamworth Planning Board Rules of that board disapproved proposed plan due to safety concerns associated with a shall issue a final written decision which either approves or disapproves an special use permit. But see RSA 676:3, I (Supp. 2009) (local land use board decision that outlined its reasons for denying Motorsports’ application for a In this case, the planning board apparently did not issue a written

board issued a written letter that unequivocally identified three distinct [disapproving an application] in the board meeting minutes.” Route 12 Books & Video, 149 N.H. at 575 (planning

N.H. at 288 (planning board issued general denial letter, but minutes reflected proposed control regarding release of hazardous substance); K & P, Inc., 133 disapproval, and minutes reflected board’s specific concern with applicant’s board issued detailed denial letter which provided multiple reasons for Star Vector Corp. v. Town of Windham, 146 N.H. 490, 494 (2001) (planning meeting can satisfy the statutory requirement under RSA 676:4, I(h). See, e.g., A written denial letter combined with the minutes of a planning board

N.H. at 619.

have noted that planning boards “should fully discuss [the] reasons for Plaistow, 133 N.H. 283, 290 (1990) (decided under current statute). Thus, we 619 (1978) (decided under former statute); see also K & P, Inc. v. Town of hold the board accountable.” Patenaude v. Town of Meredith, 118 N.H. 616, applicant of the reasons for disapproval and enables “a reviewing authority [to] therefore anticipates an express written record that sufficiently apprises an Compelling planning boards to adequately state grounds for disapproval appeal.” Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575 (2003). follows: p. 9 use permit application. The minutes characterize town counsel’s statement as the ordinance relevant to the wetland impacts outlined in Motorsports’ special

procedure in which the board would take into account the different sections of

meeting, town counsel made an introductory statement outlining a review and non-access way impacts. At the start of the November 8 planning board of the project site and implicate different sections of the WCO for access way these criteria.

will not consider the DVD recording of the November 8 meeting.

Also, the wetland impact areas apparently consist of a relatively small portion will go through the 7 criteria and see if the project meets all of

requirements they are required to meet. 9 not review DVD recordings of planning board meetings absent a transcript, we

impact areas and buffer zones in the context of a large and complicated project. use permit. The special use permit application relates to numerous wetland with any wetland area then we will discuss that. Other[wise] we were not clear on how the WCO applied to Motorsports’ application for a special criteria and if any of the Planning Board has any specific issue the 7 requirements for each impact area. We will go through the 7

requirements then we will have another discussion about what we issued an order on January 23, 2009, instructing the parties that we would trial court reviewed in rendering its decision on the merits. However, because record also includes a DVD recording of the November 8 meeting, which the

significant legal flaws. First, the minutes demonstrate that the board members not certified and, thus, we will not review it. it doesn’t make sense from a time frame point of view to deal [with] A number of wetlands are affected by this proposal, 16 or 17 areas,

if it turns out that [Motorsports] does not meet all of the 7 becomes [moot] and we do not have to proceed further. As I see it, A and if [Motorsports] meets all the requirements then the issue included in the appeal record without objection from Motorsports. The certified The Planning Board will go through the 7 requirements of Section

grounds for its decision, we conclude that the November 8 minutes reveal two document that purports to be a transcript of the November 8 meeting, but it is

record, as well as the more complete “draft” minutes which the intervenors

Turning to the merits of whether the planning board adequately provided planning board. Additionally, Motorsports included in its appendix a written minutes provided in the certified record transferred to us from the intervenors’ appendix on appeal, and, on its face, it is more inclusive than the

our purposes, therefore, we consider the November 8 minutes in the certified

“draft” on top of the first page. This same “draft” copy is included in the November 8 minutes purporting to be a “complete set,” but which is marked afford meaningful appellate review.

p. 10 board’s reasoning and fail to provide an adequate record of its reasoning to

November 8 minutes fail to sufficiently apprise Motorsports of the planning impacts failed to meet Section A criteria. Therefore, we conclude that the the application after determining that some or all of the non-access way

access ways and non-access ways, whereas other members may have denied

the impacts failed to meet Section A criteria, without distinguishing between Section A properly. Some members may have determined that some or all of voted on the project as a whole, it is unknown whether board members applied

confusion was not resolved on the record before us. Thus, when the board understand how each of the wetland impacts was deficient.

clearly allowed.” Other board members remained silent on this issue. This meaningfully review the merits of the board’s decision or Motorsports to does not apply to access way impacts and that “access ways, roads, streets are way and non-access way impacts, while another member opined that Section A

denying the permit in a manner that enabled the superior court to contends, however, that the planning board failed to provide reasons for One board member suggested that the Section A criteria applied to both access which the board relied when voting against five of the criteria. Motorsports

questionable, however, whether the board agreed as to how the WCO applied. “restat[e] the voluminous evidence” and “set forth in detail” the evidence upon

Section A, and that different criteria apply to access way impacts. It is comply with RSA 676:4, I(h). They contend that the board was not required to that only non-access way impacts are subject to the seven criteria under constituted an adequate statement for the grounds of disapproval necessary to areas identified in the application. The trial court ruled, and the parties agree, argue that casting separate votes on each of the seven Section A criteria

some confusion arose among individual board members as to whether the which the planning board voted on the project as a whole presents an impact areas. The minutes reveal that when reviewing the project as a whole, whether the board applied the Section A criteria to all or just some of the

Even assuming the board properly applied the WCO, the manner in

the application did not satisfy criteria 1, 2, 4, 5, and 7. It is unclear, however,

demonstrates that the planning board did not follow it.

the WCO with respect to the proposed project as a whole and concluded that

whether the method set forth by town counsel would satisfy the law, the record may have with regard to any particular wetland impact. Without deciding application fail to meet all criteria, and identify any specific issue the board

The board voted on each of the seven criteria delineated in Section A of

the Section A criteria, discuss the necessary requirements to be met should the This procedure proposed that the board review the project as a whole in light of buffer zones. Notwithstanding that some aspects of the proposed project,

p. 11 governing WCO criteria and the adversely affected wetland impact areas and

particular aspects of the proposed project that it found were deficient under the Rather, it was the planning board’s statutory responsibility to identify the portion of the proposed project caused which disqualifying wetland impacts.

Motorsports’ application failed to satisfy several other criteria.

required to comb through the voluminous record to ascertain, if possible, what

render meaningful review. In neither Board’s finding on each of these five criteria, under the standards set forth in role in determining whether there is evidence in the record to sustain the

water by sewage, sediment, or noxious substances.” occurring wetlands which will contribute to pollution of surface and ground demonstrate that virtually no discussion occurred prior to the board’s vote that shall “[p]revent the development of structures and land uses on naturally which [the planning board’s findings] could have been reasonably based.” Further, we reject the intervenors’ suggestion that the superior court was

issue of how to satisfy RSA 676:4, I(h). filling or excavation activity.” Summa nor Cherry did we consider the adequate record of the board’s reasoning sufficient for a reviewing court to the premise that the planning board has made findings that provide an determine which criteria the Board found were not satisfied, and can satisfy its N.H. 720, 724 (2004). Application of these standards, however, is based upon decision, then the . . . appeal must fail.” Cherry v. Town of Hampton Falls, 150 the [planning] board’s reasons for denial of the special use permit support its Summa Humma Enters., 151 N.H. at 79. In Cherry, we stated that “if any of “pollution” within the meaning of the WCO. Furthermore, the minutes satisfied. For example, the first criteria under Section A provides that the WCO decisions, the superior court must “determine whether there is evidence upon (Footnote omitted.) In Summa, we stated that in reviewing planning board Summa Humma Enters., 151 N.H. at 79 . . . and [in] Cherry, 150 N.H. at 724.”

deposited therein . . . [including] erosion and sedimentation resulting from any of any wetlands . . . by reason of any waste or other materials discharged or “[h]armful thermal effect or the contamination, or rendering unclean or impure We reject the intervenors’ argument that “[a] reviewing court can clearly

wetland impacts would be unlawfully polluted, or how the fill would constitute with respect to any particular Section A criteria that the board voted was not running over culverts, the board did not identify which of the at least sixteen corresponding buffer zones the planning board considered to be problematic concern about the excavation of retaining walls and footings, and about fill 7. The minutes do not reflect which of the at least sixteen wetland impacts or Id. art. B.6. Although the minutes reflect some

(italics, parenthesis and asterisk omitted). The WCO defines “pollution” as

A criteria, concluding that the application did not satisfy criteria 1, 2, 4, 5, and At the November 8 meeting, the board voted on each of the seven Section the evidence and provide an adequate statement of grounds for disapproval.

p. 12 application for a special use permit, it is the planning board’s duty to consider

the TCC to provide comment to the planning board regarding a landowner’s previously expressed by the planning board. Moreover, while the WCO requires identified or whether Motorsports’ revised plan failed to cure any deficiencies

with the particular deficiencies that the TCC subcommittee had previously

the application on November 8, however, it did not indicate whether it agreed

found and to provide a record for meaningful appellate review.

wetland impacts. planning board conducted a site walk. When the planning board disapproved gave detailed presentations on different features of the project design, and the and its subcommittee, both Motorsports and residents opposing the permit

provide adequate reasoning so as to apprise Motorsports of the deficiencies it

decision-making method that addresses particular aspects of the project’s

unfavorable aspects of the individual impact areas were discussed by the TCC

planning board’s decision does not relieve the board of its statutory duty to intervenors can point to evidence in the record which is supportive of the whole, thereby justifying denial of Motorsports’ application. That the

minimum, the TCC subcommittee minutes demonstrate the feasibility of a way impacts, and identified some concerns it had with the project. Thus, at a impacts, considered the WCO criteria in light of access way and non-access the public hearings on October 17 and November 1, various favorable and 12 subcommittee meeting. Thereafter, a multitude of concerns were expressed at submitted a revised plan to the planning board after the September 12 TCC

established the proposed project’s unacceptable impacts on the wetlands as a

subcommittee implemented a process whereby it reviewed distinct wetland

numerous deficiencies in its proposed project. However, Motorsports

The intervenors also point to other evidence in the record that they claim

subcommittee meeting included in the certified record indicate that the reviewing Motorsports’ application. We note that minutes of a TCC today compels a particular methodology for the board to implement when subcommittee to support their claim that Motorsports was advised of the

more than a hundred votes.” Neither the trial court’s ruling nor our holding The intervenors point to the September 12 meeting minutes of the TCC

deficient in relation to the wetland impacts. its reasoning regarding the aspects of the proposed project it found to be

impossible burden” on the planning board and “involve a logistical nightmare of and consider each requisite criteria for each impact, would impose a “nearly address each of the wetland impact areas, as well as buffer zones, separately, We also reject the intervenors’ contention that requiring the board to

buffer zones throughout the site, the planning board was required to set forth including the construction phase, may affect numerous wetland areas and the board’s decision, reasoning: p. 13 trial court concluded that, in doing so, the board acted unlawfully and vacated as erroneously applying the access way criteria to the project as a whole. The

access way wetland impacts, and it interpreted the planning board’s decision

ruled that under the WCO, separate criteria apply to access way and nonpropriety of the board’s vote to deny the permit application. The trial court to a specific board voted on the project as a whole left it unable to meaningfully review the 13 necessary for approving access ways “could only be determined with reference proposed project. They contend that because the “minimization” criteria

ways.

the WCO. Rather, the trial court determined that the manner in which the

Motorsports was entitled to approval of access way impacts associated with its

areas. and identify any deficiencies it perceives regarding particular wetland impact project” to provide the necessary context for reviewing the proposed access upon wetlands. Thus, the planning board’s task is to review the application, [a special use permit] for the racetrack project, there was no approvable that the record supports the trial court’s ruling to vacate and remand. for approval. Thus, according to the intervenors, once the board “voted to deny I(h). Because the November 8 minutes do not satisfy RSA 676:4, I(h), we hold statement for the grounds of disapproval necessary to comply with RSA 676:4,

separately on whether the access way impacts were subject to approval under The trial court did not rule that the planning board was required to vote it ruled that the planning board was required to separately address whether We conclude that the intervenors misconstrue the trial court’s ruling.

sets forth a regulatory permitting scheme governing the use of and impact address the requested access roads only if the project itself had met the criteria

approvable project,” the board would have been required to affected wetland areas or buffer zones, does not constitute an adequate

We turn next to the intervenors’ argument that the trial court erred when

whether a proposed project constitutes an appropriate use of land. Rather, it the WCO is not a zoning ordinance under which the planning board determines history before the Board and State and Federal permitting agencies.” Further, without providing reasons, explanations or findings directed to adversely on each of the seven Section A criteria with respect to the project as a whole, Under the circumstances of this case, we hold that casting separate votes

complicated project with extensive submissions to the Board, and a long We underscore the trial court’s observations that “[t]his is a large and adequate statement of grounds for disapproval under RSA 676:4, I(h). p. 14 the matter is already subject to remand for the board’s failure to provide an issue appropriately left for the board to consider in interpreting the WCO since

a misreading of our decision in wetlands regulations. They contend that the trial court’s ruling is based upon

even if the non-access way impacts do not satisfy the Section A criteria, is an

decision as to the non-access portions of the application. special use permit application are more stringent than state and federal

under the ordinance to separately review the requested access way impacts, experts, given the complexity of the task.

explicit initial determinations as to whether and where the in applying the Wetlands Ordinance, the Board did not make any the access ways would have had an impact on the Board’s whether particular provisions of the WCO that are applicable to Motorsports’ The trial court ruled that

review the planning board’s decision. Whether or not the board is required argues that under RSA 676:4, I(g), the planning board had the authority to hire access-way impacts, and as a result the court was unable to meaningfully ordinance were more stringent than state and federal wetlands regulations. It Rather, it concluded that the board erred by applying the wrong legal criteria to WCO, to initially determine whether any of the criteria for approval under the decision in Anderson directed the planning board, in accordance with the burden on the planning board. Motorsports contends, however, that our

been approved, or whether application of the correct standard to the planning board, on remand, must initially make explicit findings as to correct standard, Section E(1)(a), the access ways would have The intervenors further argue that the trial court erred when it ruled that determining whether this is so and, if so, whether under the

conclusive nor binding, . . . is entitled to consideration.”). vote on both the access way impacts and non-access way impacts separately. construction of [an] ordinance by the zoning authorities . . . [while] neither Trottier v. City of Lebanon, 117 N.H. 148, 150 (1977) (“The administrative

to access areas, and the record leaves the court no way of

We conclude that the trial court did not compel the board, on remand, to

record that the Board unlawfully applied the Section A intentions to the entire project as a whole, it appears on the face of the areas. Since the Board applied the intentions listed in Section A between the access impact areas and the non-access impact In its discussion and voting, the Board did not distinguish regulations are more stringent.

p. 15 have to apply for a special use permit.” 15

permit. Therefore, the trial court erroneously interpreted the federal regulations when reviewing or denying an application for a special use special use permit when provisions from state or federal WCO provision was in conflict with and was more stringent than state and own terms, obviating the need for Motorsports to seek a special use permit.

unreasonably in order to support a determination of stringency,”

requirements. “[e]ven if the respondent identified such provisions of the WCO, [it] would still regulations were in conflict with and more stringent than the WCO

decision as compelling the board on remand to “make explicit initial

permit. Nothing in Section I eliminates the requirement to obtain a did not place any responsibility on the board to initially decide whether any necessary state and federal wetlands permits, the WCO was inoperable by its stringent provisions must be satisfied to obtain a special use

“the Board may not interpret the [applicable WCO] standards . . . illegally or

are less stringent than provisions of state and federal regulations” because eliminate the need to acquire a special use permit even if the state and federal Id. We did not address “whether any provisions of the WCO conflict with and

stringent and comprehensive than the WCO, and, thus, because it secured the comparable provisions in state or federal regulations, the more if provisions of the WCO conflict with and are less stringent than provision shall apply.”

Id. In construing the stringency provision, we determined that

We rejected Motorsports’ argument and held that the WCO did not

at 497.

Motorsports argued that the relevant state and federal regulations are more

Federal law or regulation, or other Town ordinance, the more stringent WCO: “Where any provision of this ordinance is in conflict with State or Central to one issue in Anderson was the following provision under the

We conclude that the trial court misconstrued our holding in Anderson.

review. including its requirement in this regard, controls the Board’s remand that, in addition to this order, the Anderson holding, petitioner’s application, so simply points out for consideration on Court’s decision in Anderson at the time it considered the mindful that the Board did not have the benefit of the Supreme regulations. See Anderson, 155 N.H. at 497-98. The court is Wetlands Ordinance is more stringent than the State and Federal arise on remand. We agree and similarly decline to address this argument. p. 16 procedural challenge because it determined that the issue was not likely to

decline to address its argument. 16 reversed pursuant to RSA 676:4, IV. The trial court declined to rule on this adequately developed legal argument and legal support. Accordingly, we decide the matter on remand, a novel notion for which it fails to provide

vote on the application, the board’s vote to deny the application must be session” and gave no indication that it intended to deliberate and render a final notion that Motorsports is entitled to the same planning board members to planning board publicly noticed the November 8, 2008 meeting as a “work

lacked adequately developed argument or legal support).

available to consider the case on remand. This argument is premised on the DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred. in review of its application. In particular, it contends that because the planning board members no longer sit on the board, a quorum will not be denial of its application. It contends that because a majority of the original and remanded.

657-58 (2008) (judicial review not warranted for sweeping legal assertion that

vote in violation of its right to meaningful notice and opportunity to participate to rule on whether the planning board illegally deliberated and rendered a final we should uphold the trial court’s decision by vacating the planning board’s the trial court declined to address. It argues that the trial court erred by failing Finally, Motorsports argues that “remand is no longer available” and that

In its cross-appeal, Motorsports asks us to reach a procedural issue that

stringent than the State and Federal regulations.” determinations as to whether and where the Wetlands Ordinance is more