2010-586 Limited Editions Properties, Inc. v. Town of Hebron

Martin, Lord & Osman, P.A.

No. 2010-586

Grafton

order of the Superior Court (Vaughan CONBOY, J. The petitioner, Limited Editions Properties, Inc., appeals an

frontage on West Shore Road. A portion of the lot lies within the Hebron lake acres of property in Hebron on the northwest end of Newfound Lake with The following facts are taken from the record. The petitioner owns 112.5

Mitchell Municipal Group, P.A.

of Hebron (Town). We affirm. petitioner’s subdivision application by the planning board of respondent Town , J.) upholding a decision to deny the

brief and orally), for the respondent.

Suzanne S. McKenna on the brief and orally), for the petitioner.

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 p. 2 22 as 2

of probabilities, was reasonable. and (4) the trial court erred in finding that the Board’s decision, on the balance conditional approval by the Board would preclude it from subsequent review; to be heard; (3) the trial court erred in concluding that a preliminary capable of meaningful review; ( p. 2 2) the Board denied it a full and fair opportunity The petitioner argues that: (1) the Board failed to provide a record

superior court, which upheld the Board’s decision. This appeal followed. voted to deny the application. The petitioner subsequently appealed to the seconded, and after further discussion, three of the five members of the Board numerous concerns. A motion to deny the application was introduced and deliberative session, discussed various aspects of the application, and voiced After holding several hearings on the application, the Board entered into

rather, it would either conditionally approve the application or deny it. determined that it would not approve the subdivision application in stages; We affirmed the trial court’s reversal of the Board’s decision. See consideration of any necessary changes to the plan. However, the Board had materially revised its plan, it was required to submit a new application. obtained the permits, the petitioner intended to return to the Board for a second time. Previously, the Board determined that because the petitioner necessary permits after the Board granted preliminary approval. Once it Issues relating to the petitioner’s subdivision application are before us for then-current state regulations; it intended to revise the plan to obtain the proposed road and lot layout. It acknowledged that the plan would not meet permits. The petitioner particularly desired preliminary approval of the “overall concept” before the petitioner sought required state and federal petitioner requested that it grant preliminary conditional approval of the plan’s p. 2 2008). When the Board resumed consideration of the application, the Editions Properties, Inc. v. Town of Hebron, No. 2007-0791 (N.H. June 30, Limited

proposed road. long and ten feet high in the center. Hebron Bay is down-slope from the feet long and seventeen feet high in the center; the third would be seventy feet fifty feet wide, and twenty-six feet high in the center; another would be ninety with a six-foot metal fence: one retaining wall would be p. 2 255 feet long, forty to the road would include constructing three substantial retaining walls, topped and would have a “switch back” with a 150-foot curve radius. Construction of would be 2,600 feet in length, with a 10% grade for about 1,600 to 1,700 feet, from West Shore Road, would be located in the Hebron lake district. The road a twenty-lot subdivision on the property. The proposed access road, leading petitioner applied to the Hebron Planning Board (Board) for approval to develop located close to Hebron Bay, includes p. 3 37.4 acres of steeply sloping land. The district, and the remainder lies within the rural district. The property, which is 3

transcripts are part of the record subject to our review. these circumstances, we assume, without deciding, that the unofficial Board’s decision, and this reliance is not challenged by either party. Under petitioner. The trial court relied upon these transcripts when reviewing the the record in this case includes unofficial transcripts prepared by the Before addressing the merits of the petitioner’s argument, we note that

and drainage.” Lake District), safety concerns, and environmental concerns, including erosion board’s reasoning for review on appeal. See applicant of the reasons for disapproval and provides an adequate record of the who voted against approval did so based on: aesthetics (damage to the scenic meeting. The court concluded, “[T]he record shows that the three members requirement anticipates an express written record that sufficiently apprises an identified the basis for its decision on the record at its January 6, 2010 upon the records of the planning board.” We have explained that this statutory its written notice of decision. However, the trial court ruled that the Board planning board, the ground for such disapproval shall be adequately stated requires that: “In case of disapproval of any application submitted to the The Board did not enumerate the reasons for denying the application in provide a record capable of meaningful review. RSA 676:4, I(h) (Supp. 2010) case. Id We first address the petitioner’s argument that the Board failed to. records adequately state the grounds for disapproval depends on the particular I. Adequacy of the Record can satisfy the statutory requirement. Id. Ultimately, whether planning board written denial letter combined with the minutes of a planning board meeting

is unsupported by the evidence or legally erroneous. p. 4 Id. is similarly limited. We will uphold a trial court’s decision on appeal unless it evidence upon which they could have been reasonably based. Id. Our review whether it agrees with a planning board’s findings, but rather whether there is the board’s decision was unreasonable. Id. The trial court is not to determine the burden of persuading the trial court that, by the balance of probabilities, unreasonableness or an identified error of law. Id. The appealing party bears as prima facie lawful and reasonable and cannot set aside its decision absent 160 N.H. 95, 99 (2010). It must treat the factual findings of the planning board The trial court’s review is limited. Motorsports Holdings v. Town of Tamworth, probabilities, on the evidence before it, that said decision is unreasonable.” there is an error of law or when the court is persuaded by the balance of affirm, wholly or partly, or may modify the decision brought up for review when 677:15, V (Supp. 2010), which provides that the trial court “may reverse or The trial court’s review of a planning board’s decision is governed by RSA Id of disapproval necessary to comply with RSA 676:4, I(h).

zones, does not constitute an adequate statement for the grounds

or findings directed to adversely affected wetland areas or buffer to the project as a whole, without providing reasons, explanations

separate votes on each of the seven Section A criteria with respect Under the circumstances of this case, we hold that casting impact areas.

identify any deficiencies it perceives regarding particular wetland Thus, the planning board’s task is to review the application, and permitting scheme governing the use of and impact upon wetlands. appropriate use of land. Rather, it sets forth a regulatory

board determines whether a proposed project constitutes an

[T]he WCO is not a zoning ordinance under which the planning

adequately reflects the Board’s reasons for denying the application. Unlike in Here, it was not error for the trial court to conclude that the record

. at 108.

We concluded:

failed to satisfy several [of the] criteria.” p. 4 Id. no discussion occurred prior to the board’s vote that Motorsports’ application applicable criteria. Id. at 106. Further, the record demonstrated that “virtually or buffer zones subject to the WCO the board determined violated the Second, the minutes did not reflect which of the sixteen wetland impact areas whether board members applied Section A properly.” Id. (emphasis added). “Thus, when the board voted on the project as a whole, it [was] unknown when, in fact, it applied to only non-access way impact areas. Id. at 104-05. the ordinance to apply to both access way and non-access way impact areas, indicated that some board members had incorrectly interpreted Section A of flawed in two respects. Id. at 104. First, the minutes of the subject meeting (WCO). Id. at 99. We concluded that the record of the board’s proceedings was the seven “Section A” criteria of the town’s wetlands conservation ordinance the town’s planning board voted that the petitioner’s application violated five of This case, however, is distinguishable from Motorsports. In Motorsports,

statements” in the record do not constitute collective reasoning. environmental and safety concerns.” It contends that the “individual distinguish the particular reasons, explanations or finding[s] directed to any members cited aesthetics as a reason for denial and that the board “fail[ed] to application was not adequate. The petitioner argues that only two Board rather than collective consensus,” and that the Board’s “general denial” of the because the votes cast to deny the application reflected “individual sentiments Citing Motorsports, the petitioner argues that the record is deficient p. 5 II. Full and Fair Hearing

that the petitioner’s decision to approach the Board for preliminary conditional configurations based on the evidence presented to it. The trial court also found concerns, including erosion and drainage.” considered the possibility of conditionally approving the road and lot (damage to the scenic Lake District), safety concerns, and environmental seeking the Board’s approval; and (3) the record shows that the Board the record shows that the Board denied the application based on “aesthetics application;” (2) the petitioner could have obtained the required permits before review of this record, we hold that the trial court did not err in concluding that did not inhibit the petitioner from presenting evidence to support the its reasons for denial. A majority voted in favor of the motion. Based upon our permitting process. The court found that: (1) “the record shows that the Board petitioner from generating the necessary data” through the state and federal The Board’s further discussion indicated that it agreed this recitation described based on a lack of technical data while at the same time precluding the claim that the Board “unreasonably and unlawfully denied the application neighbors’ yards. construction process erosion going into the lake, the road, and the The trial court concluded that the record did not support the petitioner’s John Dunklee mentioned the maintenance of the dirt during the opportunity to do so.” safety of people and property, aesthetics, the clearing of trees. presented, despite representations to the contrary that there would be an damage to the neighbors, Hebron Bay, and the lake. Dick said the and (2) “the hearing structure [was] cut short before vital information could be Ellie said most clearly for aesthetic reasons, for probability of a presumption that state and federal requirements protect the public interest; allowed to proceed to the state and federal permitting process because there is federal permits. Specifically, the petitioner argues that: (1) it should have been denied the application before the petitioner obtained the required state and provide it a full and fair opportunity to be heard because it “prematurely” We next address the petitioner’s argument that the Board failed to

reported as follows: reasons for denial. The transcript reveals that the secretary of the Board another member seconded the motion, the Board discussed the need to provide and property. After a Board member moved to deny the application, and regarding its impact on aesthetics, the environment, and the safety of persons

the deliberative session and identified concerns and unresolved issues Motorsports, the Board discussed many aspects of the proposed plan during p. 6 Smith

with all applicable requirements of the New Hampshire Code of constructed as long as said design and construction fully complies

Water Supply and Pollution Control [Division]. 6 . . . . Such information may consist of the report of . . . the State installation and operation of an individual sewage disposal system

subsurface sewage disposal system may be designed and

prove that the area of each lot is adequate to permit the responsibility of the subdivider to provide adequate information to

In areas where municipal sewer is not available, an on-site

In Derry

[I]n areas not currently served by public sewer systems it is the

, the regulation at issue provided, in pertinent part:

safe septic system.” Id. at 344 (emphasis added). Control Division] approval of an on-site sewage system is adequate proof of a presumption under this regulation that [State Water Supply and Pollution developer has the initial burden of proving adequate sewage disposal, there is a , 136 N.H. at 343 (quotations omitted). We concluded, “[A]lthough the

A. Application of Derry Senior Development, LLC v. Town of Derry

provided: petitioner suggests, attach automatically. The regulation at issue in p. 6 Smith themselves that created that presumption. The presumption does not, as the 337, 344 (1992). However, it was the language of the town ordinances satisfied. See Derry, 157 N.H. at 451-52; Smith v. Town of Wolfeboro, 136 N.H. approval created a presumption that the town’s septic regulations were case, Smith v. Town of Wolfeboro, we concluded that applicable state permit Relying on Derry Senior Development, LLC v. Town of Derry The petitioner misreads our case law. In Derry and in an earlier related

Town’s interests. state and federal permitting process would not adequately safeguard the decision because the Board failed to cite specific facts to demonstrate why the permits will issue.” It argues that the trial court erred in affirming the Board’s and safety issues with which the application must necessarily comply before application that pose a threat to the public interest beyond the environmental interest,” and “the record of denial should state the deficiencies of the requirements creates a presumption that the proposal protects the public 441 (2008), the petitioner asserts that “[m]eeting state and federal agency

attributable to the Board. have supported the application” was a “tactical decision,” and not an error approval “before applying for permits and before generating all data that might p. 7 7

requesting “preliminary design approval” and “a preliminary decision” The record reflects that the petitioner’s counsel stated the applicant was

B. Hearing Structure stated it would follow. We disagree with the petitioner’s characterization of the process the Board demonstrate the integrity of the application measured by objective standards.” the applicant . . . had the opportunity it was led to believe it would have to and the Board’s re-review when complete,” and then “change[d] course before believe that the process “was undertaken with an eye toward state permitting there would be an opportunity to do so.” It contends that the Board led it to information could be presented, despite representations to the contrary that its application because “the hearing structure [was] cut short before vital We next address the petitioner’s claim that the Board prematurely denied

Derry

presumption in Derry not therefore be protected. Here, there are no ordinances similar to those giving rise to the that the permits would be issued and to explain why the public interest would these circumstances, we decline to rule that the Board was required to assume and other Board members indicated their agreement with this premise. Under Hebron because they may not address some of our issues that are legitimate,” Environmental Services]. every one of the State requirements that it automatically is a pre[-]pass in member stated, “I don’t want the applicant to think that just because it passes conditioned on the petitioner securing state and federal permits, a Board regulations. Indeed, when considering whether to approve the application, agency determinations rendered, for the Board to consider in light of the local

circumstances would pose a real threat to the public interest.” Id. at 451-52. indicating that following the agency’s determination in the particular justifying rejection of the agency’s determination; that is, concrete evidence the proposal protects the public interest, the record must show specific facts permits for the same from the [New Hampshire Department of determined, “Where . . . another agency’s approval creates a presumption that regulation creates a similar presumption.” Id. at 450 (emphases added). We rules as the sewage system requirements, we must conclude that this further to specifically incorporate the [department of environmental services’s] adequate proof of a safe septic system, in this case, where the regulation goes [State Water Supply and Pollution Control Division] approval constituted our ruling in Smith that the Wolfeboro regulation created a presumption that , 15 p. 7 7 N.H. at 448 (emphasis and quotations omitted). We stated, “[G]iven

Administrative Rules; and the applicant has secured appropriate p. 8 State until the Town has made its initial call on the layout.

continue this process at the State level. We can’t really go to the indicated, we’re looking for limited area approval so that we can [Petitioner’s counsel]: No. Mr. Chairman, we’re – as Mr. Johnson

second citation refers to the following exchange: existing concerns until after the petitioner secured necessary permits. The that the Board agreed to delay seeking further engineering review to address testimony by the petitioner’s engineer, but this testimony does not demonstrate April 1, 2009 meeting to support this assertion. The first citation refers to state and federal level.” The petitioner cites two pages in the transcript of the safety and the environment not already considered would be addressed at the would not seek further engineering review understanding that concerns as to record when it asserts that “the Hebron Board advised the [petitioner] that it Further, we do not agree with the petitioner’s characterization of the

provide the Board with evidence sufficient for it to make a decision. See the petitioner for “specific items” in lieu of the petitioner’s responsibility to addressed.” We do not interpret this as a commitment from the Board to ask the applicant’s team clarifying questions so that we can get all of these things Board will discuss the comments and may ask either a member of the public or which reads, in part, “Once the Chair decides to close the public testimony, the petitioner cites a portion of the transcript of the February 9, 2009 meeting, “the onus is on the Applicant to bring up materials to be considered.” and ask the applicant for specific items at the end of the session.” The process at the December 3, 2008 meeting, when the Board Chair stated that, indicated that the Board would receive input from the applicant and the public Board reminded the petitioner of its obligation from the beginning of the We also reject the petitioner’s assertion that “the Board Chairman Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 79 (2004). Indeed, the

or deny it altogether. as a whole to approve the subdivision application, with or without conditions, proposed road and lot layout, but, instead, intended to review the application request. The Board made clear that it would not limit its review to the continued to request bifurcation, and the Board continued to reject the looking at . . . .” Throughout several meetings thereafter, the petitioner itself. We’re going to look at the entire subdivision because that’s what we’re view -- and correct me if I’m wrong -- going to approve a road, you know, all by February 4, 2009 meeting, the Board chair stated: “[W]e’re not going to, in my such a bifurcated process was not acceptable to it. For example, at the federal permits were obtained. The Board, however, clearly communicated that expectation that the Board would conduct further review after the state and petitioner sought preliminary approval of the road and lot layout, with the regarding the road and lot configurations. As early as February 2009, the upon applications, the board may not deny approval on an ad p. 9 board is entitled to rely in part on its own judgment and experience in acting impermissibly based their decision on personal opinion. Although a planning

We also reject the petitioner’s argument that the Board members

on additional engineering review. reviewing the application as a whole, rather than in stages, was not contingent application as submitted. The record demonstrates that the Board’s process of additional engineering review and resolved to consider the merits of the the application was complete. Ultimately, the Board declined to require the application or approve it with conditions. From the petitioner’s standpoint, information, and that the Board had all the information it needed to approve proposed plan, that another engineering review would not provide any new that the Town’s review engineer had already provided his conclusions on the The petitioner disputed the necessity of a second engineering review, arguing pay for another engineering review to aid its assessment of the application. The record reflects that the Board considered requiring the petitioner to

We cannot interpret this reference as supporting the petitioner’s contention.

[Member of the public speaks on another issue]

on the evidence presented.” personal opinions and feelings, the record shows that they based their decision with the trial court that while “Board members may have, at times, expressed of the record as “highlighted by individual sentiments and ‘feelings.’” We agree court legally erred in making these findings. It offers only its characterization with applicable regulations. The petitioner offers no argument that the trial considered whether it could approve the application with conditions consistent the Board’s decision, and that the record demonstrates that the Board carefully Board members of relevant, lawful considerations,” that the evidence supported The trial court found that “the record reflects prolonged discussion by

be based upon more than the mere personal opinion of its members. Id. because of vague concerns. Derry, 157 N.H. at 451. The board’s decision must

[Member of the Board]: You’ve got one more question out there.

Board. Chairman Larochelle: Okay. Thank you. All right, Planning p. 10 IV. Sustainable Exercise of the Trial Court’s Discretion

construction of a road and related retaining walls. The Board

reasonably based. Motorsports

of the attention during hearings focused on the proposed It is undisputed that the property contains steep slopes, and much

determine whether there is evidence upon which they could have been description is supported by the record. determine whether it agrees with the planning board’s findings, but to the Board’s concern about engaging in a bifurcated process, and this unreasonable.” RSA 677:15, V. The review by the superior court is not to conducting any subsequent review. Rather, the trial court simply described balance of probabilities, on the evidence before it, that said decision is conditional approval as requested by the petitioner, it would be precluded from the decision brought up for review when . . . the court is persuaded by the rendered a legal ruling that in the event the Board granted preliminary probabilities. “The court may reverse or affirm, wholly or partly, or may modify the trial court’s order as a whole, we cannot conclude that the trial court discretion by finding the Board’s decision to be reasonable on the balance of necessarily be able to change those conditions at a later date.” In considering The petitioner next argues that the trial court unsustainably exercised its conditions, and, if it approved the application with conditions, it would not interim decision – that it must either deny the application or approve it with The trial court stated: its order, the court stated: “[The Board] determined that it could not issue an have another opportunity to revisit the application and conditions.” Earlier in, 160 N.H. at 99. interim decision. If it approved the application with conditions, it might never the procedural background, the Board determined that it could not issue an The trial court stated: “As the Court has explained in its discussion of

disagree with the petitioner’s interpretation of the court’s order. never have another opportunity to revisit the application and conditions.” We “[i]f [the Planning Board] approved the application with conditions, it might subsequent review. The petitioner challenges the trial court’s statement that preliminary conditional approval by the Board would preclude it from any The petitioner argues that the trial court erred in finding that a

III. Preliminary Conditional Approval

full and fair hearing. erred in rejecting the petitioner’s argument that the Board failed to afford it a Under all the circumstances, we cannot conclude that the trial court general contractor . . . will be dealing with constructing the project on very p. 11 has a potential to wash sediment into the Lake during construction. The about inadequate drainage and the potential for water run-off: “This project involved, and before vegetation becomes established.” He also noted concerns and how will a major storm be handled when the road construction is fully erosion problems during construction . . . . My concern is during construction, erosion during construction: “I see the potential of this site having some major concerns he had about the proposed project, including the danger posed by in the record. For example, the Town’s review engineer outlined several The trial court’s findings and conclusions are supported by the evidence

were adequately addressed, even with imposition of conditions. erosion, drainage and potential harm to Hebron Bay [and Newfound Lake], Board was not persuaded that the evidence showed that its concerns, including retaining walls in relation to the tree cover. The trial court concluded that the with an accurate representation of the appearance of the large proposed aesthetics, the trial court found that the petitioner did not present the Board safety concerns about the road were raised during the hearings.” As to regarding slope,” but noted that “a number of aesthetic, environmental, and that the road would comply technically with the subdivision regulations could result in erosion.” Further, the court recognized that it was “undisputed Board was presented with expert evidence indicating that even the best plans potential for environmental damage.” The court specifically found that “the techniques could address the environmental concerns, . . . it did not refute the that, while evidence “indicated that proper oversight and construction environmental effects of blasting (and residual nitrates) and about run off,” and The trial court found that the Board had heard “evidence about the

eliminate such hazards.

until appropriate measures have been taken by the subdivider to 11 danger to health, life or property, or aggravate the flood hazard

residential occupancy, or for any other uses as may increase flood, topography or other menace, shall not be platted for purposes because of exceptional danger to health or peril from fire, Land of such character that it cannot be safely used for building

provides in relevant part: subdivision regulations, particularly Hebron Subdivision Regulation 6.3, which could have lawfully found that the petitioner had not shown that it satisfied the After a detailed review of the record, the trial court determined that the Board

would not undermine aesthetics, safety, and the environment. evidence presented showed that the construction on the slopes

members who voted against approval were not persuaded that the to present the Board with evidence sufficient for it to make a decision. See p. 12 process].” However, as noted above, it was the responsibility of the petitioner permitting data was developed [during the state and federal permitting make an adequate decision, because [it] made [its] decision before the contends: “[T]he Planning Board did not have the technical data it needed to reasonable under the “balance of the probabilities” standard, the petitioner In challenging the trial court’s decision to affirm the Board’s denial as

significant concern. appearance of the proposed retaining walls was unknown and remained a Indeed, in deliberative session, Board members discussed that the actual is devoid of any information from the petitioner to alleviate this concern. district, especially from the vantage point of beach area. The record, however, impact of the large retaining walls on the scenic views in the protected lake With respect to aesthetics, the Board expressed its concern about the

protect the Town, the abutters, and Town taxpayers. emphasized that deeming the road “private” would not necessarily adequately associated Town liability. A Board member who voted to deny the application

record shows that the Board did not inhibit the petitioner from presenting Summa Humma Enters., 151 N.H. at 79. As the trial court determined, “The

expressed concern about emergency vehicle access in the winter time and any responsibility for maintenance, including sanding and salting, he also recommended that the road “remain private” so that the Town would not bear curve of 150 [feet] radius is in the 10% slope area.” While the engineer long run of steep slope without a break in the slope, and the sharp and long system serving the units has a stretch of 1,800 feet of 10% slope. This is a Town’s review engineer identified issues relating to the road’s safety: “The road curve radius, and the evidence supports those concerns. For example, the extraordinary length of the proposed road at a steep pitch with a significant The Board was also concerned about the risks associated with the

of the lake by nitrates would not dissipate over time. director of the Newfound Lake Region Association testified that contamination rainstorm over night when inspectors are not on site.” Further, the executive even the best designed erosion control plans can fail with a significant [best management practices] for erosion control be monitored constantly, as amount of land clearing needed for site development it is imperative that all Another environmental expert opined, “[Due] to the steep slopes and the and outline extensive erosion control measures that must be adhered to.” during construction: “The engineering requirements cannot be taken lightly An environmental impact report emphasized the need for oversight

toward the lake.” steep slopes, and storm water will want to take anything in [its] path with it p. 13 13

petitioner are either not developed sufficiently to warrant our review, see erred in affirming the Board’s decision. Other arguments raised by the We hold that the petitioner has failed to establish that the trial court

DALIANIS, C.J.