2010-167 Golf Course Investors of NH, LLC v. Town of Jaffrey & a.

No. 2010-167

Cheshire

Board of Adjustment (ZBA) appeal the order of the Superior Court (Arnold CONBOY, J. The Town of Jaffrey (Town) and the Town of Jaffrey Zoning

Bragdon & Berkson, P.C.

Course Investors of NH, LLC (GCI). We affirm. William S. Gannon PLLC board’s decisions granting major subdivision and site plan approvals to Golf trial court ruled that the residents lacked standing to appeal the planning from decisions of the Town of Jaffrey Planning Board (planning board). The vacating the ZBA’s decision granting the appeal of certain residents of the Town

Adjustment. orally), for the Town of Jaffrey and Town of Jaffrey Zoning Board of

and orally), for Golf Course Investors of NH, LLC.

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 p. 2 Development Plan (OSDP), which is the only way to allow multi-family housing development and for a multi-family dwelling and approval for an Open Space the Mountain Zone, it would require Special Exceptions for a major water,” and that “[i]f the Shattuck Annex were a standard ownership project in least 4.8 acres for an Open Space Development Plan for four units with town Mountain Zone requires at least 6 acres for four units with town water, or at The residents contended that “[s]tandard zoning in the Rural District and

1.75 acres – to the [ZBA]. allowing four dwelling units in the Mountain Zone on a plot of only therefore appeal the Planning Board’s April 11, 2006 decision –

[ZBA] for Special Exceptions. Under RSA Chapter 675, we and in its decision that the plan did not need to come before the

zoning regulations regarding the lot size for a major subdivision [W]e believe the Planning Board erred in its interpretation of the

board’s decisions to the ZBA. They stated: Allon and William Blackwell, and Patricia MacIsaac — appealed the planning

Seven residents — Richard and Heather Ames, James and Sara Bacon,

conditions. planning board approved the major subdivision and site plan applications with stain. The plan also included constructing two detached garages. The character” to existing back porches, and painting the exterior cedar with solid extending the front porch, constructing two porches in the back with “similar restore the existing Annex building, which apparently has historical value, by maintenance people on carts.” The minutes reflect that GCI’s plan was to existing driveway, as well as the intended access to a nearby golf course “by concerns, and Mrs. MacIsaac asked questions about the proposed use of an MacIsaac.” During the hearing, Mr. MacIsaac expressed some road safety sent notice of the public hearing to “MacIsaac Trust c/o Donald & Patricia minutes as an abutter, and the certified record demonstrates that the Town participating in the board’s review of the applications. He is identified in the

Planning board member Don MacIsaac recused himself from

major subdivision and site plan applications and conducted a public hearing. was not required to allow the proposed four-unit condominium. It accepted the with two detached garages. The planning board voted that a special exception also submitted a site plan application, proposing the condominium conversion building on Lot 8.9, the Shattuck Inn Annex, into a four-unit condominium. It subsequently submitted a major subdivision application, seeking to convert the building at issue. The approval of the subdivision was not appealed. GCI consisting of 7.39 acres, and the other of 1.75 acres (Lot 8.9) containing the approval, GCI subdivided its single 9.13 acre parcel into two lots, one The following facts are drawn from the record. With the planning board’s they like the proposal itself. p. 3 how their properties are affected by this. They do say however that

planning board’s decisions as “persons aggrieved.” See GCI raised the issue of whether the residents had standing to appeal the On June 6, 2006, the ZBA held a public hearing on the residents’ appeal.

themselves as aggrieved and they stop – they do not go on to say proposal under consideration. In the petition they identify can demonstrate that their land will be directly affected by the consideration would be do they have a direct issue; whether they the street or stream from the land under consideration. Another 3 knowledge none of the four properties adjoin or are directly across [Town counsel] read RSA 672:3 which defines an abutter. To his

. . . approximately 450 feet from Lot 8.9.” board proceedings. The minutes of the hearing also state the following: Planning Board as an abutter” and her property “is located across Dublin Road the residents, only Patricia MacIsaac attended and participated in the planning Patricia MacIsaac, the appeal document states that she “was identified by the the project. With respect to the issue of standing, Town counsel noted that, of from Lot 8.9 fronting on the opposite side of Dublin Road.” With respect to “aggrieved,” and pointed out that the residents stated that they actually favored Blackwells’ property is located in the mountain zone and “is about 1200 feet the proper enforcement of town ordinances and regulations is not enough to be side of Dublin Road as Lot 8.9 about 2400 feet from Lot 8.9”; and the 2010). It asserted that living close to the project or having a general interest in approximately 900 feet from Lot 8.9”; the Bacons’ property fronts “the same “abuts land in the Mountain Zone and [its] northwest property boundary is RSA 676:5, I (Supp. relation to the mountain zone and Lot 8.9. They stated that the Ames’ property PERSONS,” the residents identified their respective properties’ location in Under a section in their appeal document entitled “AGGRIEVED

historic 1912 building, which is an example of Shingle Style Architecture.” dwelling units on a plot of at least 4.8 acres will be a very good reuse of this and “We believe the resulting redevelopment of the Shattuck Annex as four years, has been proposed by [GCI] to be redeveloped into attractive housing,” “We are pleased that the Shattuck Inn Annex, gutted and unused for many subdivision and multi-family dwelling in the Mountain Zone.” They also stated, the Board of Adjustment of the necessary Special Exceptions for a major Development Plan, assuming prior Planning Board referral to and approval by land could be readily approved by the Planning Board as an Open Space rehearing, we believe that a revised proposal on at least 4.8 acres of platted board decisions and direct it to rehear the case, asserting that, “Upon in the Mountain Zone.” They requested that the ZBA overturn the planning arguments on the merits. See p. 4 regarding the standing of the residents and therefore we address the Town’s of this appeal that the Town has standing to challenge the trial court’s decision As a preliminary matter, we will assume, without deciding, for purposes

appeal and reversing the planning board’s decision. This appeal followed. bring their appeal before the ZBA, and vacated the ZBA’s decision granting the jurisdictional issue of standing. It ruled that the residents lacked standing to superior court. The trial court bifurcated the matter, first addressing the unsuccessfully sought a rehearing from the ZBA, and then appealed to the basis that a special exception to allow a multi-family use is required.” GCI that the residents were “aggrieved.” It also voted to grant the appeal “on the Without any further discussion described in the minutes, the ZBA voted

application for a special exception. If the second option takes place it will most likely generate an or the appeal can be granted and returned to the Planning Board. the appeal and go with what the Planning Board said was correct

could they be? There are two choices. The board can either deny attend the Planning Board public hearing and asked how aggrieved Chairman Dumont noted that three of the four appellants did not

whether or not the parties who issued the appeal are aggrieved. to be an abutter to be an aggrieved party. The issue here is the definition of abutter is for notice purposes and you do not have can and cannot appeal a decision. [Town counsel] explained that Member Dodge asked [Town counsel] for an explanation on who

than Marlborough.

impact going as far as Marlborough. The appellants are closer

abutter. Member Weber commented that the State has regional Dumont did not feel that any of the appellants qualified as an The board reviewed the State’s definition of abutter. Chairman

(2010); Stuart v. State, 134 N.H. 702, 704 (1991).

following: addressed the issue of standing. The minutes of that session state the

At the commencement of its June 20 deliberative session, the ZBA

the public hearing, expecting to begin deliberations on June 20. little land, being 1.75 acres, within the rural/mountain zone.” The ZBA closed erroneously allowed “too much housing, being four condominium units, on too During the hearing, the residents related their concern that the planning board p. 5 See and site plan applications without requiring GCI to obtain a special exception. “aggrieved” by the planning board’s decisions approving the major subdivision To have standing to appeal to the ZBA, the residents must have been

beauty of Mount Monadnock and the associated highlands.’” the ‘mountain zone . . . designed to protect and preserve the rural and scenic condominium units, without any expansion, would be ‘too much housing’ in 5 “conversion of an existing building into 4 single-family residential ordinance and regulations,” and that at “most” their appeal asserted that was based only upon “an academic debate regarding the interpretation of the 99 (2008). the outcome.” (Quotations omitted.) According to GCI, the residents’ appeal 541, 544-45 (1979); Johnson v. Town of Wolfeboro Planning Bd., 157 N.H. 94, the community or impact some other direct definite and immediate interest in administrative hearings. Weeks Restaurant Corp. v. City of Dover, 119 N.H. properties, impose any other pecuniary damage not shared by all persons in of the injury claimed, and the challenging party’s participation in the condominiums will affect their health, general welfare, safety, the value of their site for which approval is sought, the type of change proposed, the immediacy claim or even hint that converting the Annex to four (4) single-family residential consider factors such as the proximity of the challenging party’s property to the certified record, and that “[n]owhere in the Zoning Appeal [do the residents] sufficient direct, definite interest to confer standing, the trier of fact may that the Town identifies in its brief certain facts that are not part of the Goldstein, 154 N.H. at 395. To determine whether a non-abutter has a undisputed facts, the residents lacked standing as a matter of law. It contends some direct, definite interest in the outcome of the action or proceeding. standing was not supported by the record and that, based upon the (Supp. 2010); see Goldstein, 154 N.H. at 395. The appealing party must show GCI argues that the trial court properly found that the ZBA’s ruling on administrative action or proceeding. RSA 677:2 (Supp. 2010); RSA 677:4 “Persons aggrieved” include any person “directly affected” by the challenged RSA 676:5, I; Goldstein v. Town of Bedford, 154 N.H. 393, 395 (2006).

participated in the planning board proceedings. subdivision on a 1.75 acre lot,” and that at least one of the residents from Lot 8.9, that the proposed change “was the creation of a major that two residents live within 1,000 feet and the others live within 2,400 feet MacIsaac, was cited as an abutter by the planning board for notice purposes, Hampshire case law.” It points out that one of the residents, Patricia determination of the ZBA was reasonable and in accordance with existing New determination of the ZBA.” It further contends that “the record is clear that the for that of the ZBA,” and “in failing to accord the presumption of validity to the legal conclusion rather than a factual judgment,” “in substituting its judgment The Town argues that the trial court erred “in finding that standing is a erroneous conclusion of law.” p. 6 Thus, the trial court decided, it was “not obligated to defer to the ZBA’s

that it could render a decision on the merits of the appeal.

residents were aggrieved. It appears the ZBA made this ruling so

making factual findings, the ZBA simply concluded that the dispute regarding the nature or extent of such injury. Instead of There was no allegation of any injury to the residents, let alone a of the residents’ properties to the proposed development site. board’s meetings. Nor was there a dispute regarding the proximity

appealing the planning board decision had not attended the dispute. There was no dispute that most of the residents who were

because the facts relevant to this determination were not in the ZBA did not make any factual findings regarding standing,

factual findings as prima Here, the trial court, while aware of its obligation to accept the ZBA’s

or legally erroneous. Fox v. Town of Greenland unreasonable.” Id standing is limited; we will uphold it unless it is unsupported by the evidence. balance of probabilities, on the evidence before it, that said order or decision is Our review of the trial court’s decision regarding the ZBA’s ruling on board decision “except for errors of law, unless the court is persuaded by the 677:6. The trial court is precluded from setting aside or vacating a zoning properly before the court shall be prima facie lawful and reasonable.” RSA findings of the zoning board of adjustment . . . upon all questions of fact 677:6; Feins, 154 N.H. at 717. Further, in the appeal to the trial court, “[a]ll burden of showing that such decision is unlawful or unreasonable. See RSA party who seeks to have the trial court set aside the ZBA decision bears the Feins v. Town of Wilmot, 154 N.H. 715, 717 (2007). We are mindful that the

by” the administrative action. Goldstein, 154 N.H. at 395 (quotation omitted). extended to “all persons in the community who might feel that they are hurt his or her right to claim relief. Joyce, 156 N.H. at 529. Standing will not be cannot rest on unsubstantiated allegations, but must sufficiently demonstrate the issue of standing is raised, the party challenging the administrative action N.H. at 96; Joyce v. Town of Weare, 156 N.H. 526, 529 (2007). Further, when de novo review when the underlying facts are not in dispute. See Johnson, 157 reasonable, see RSA 677:6 (2008), the decision on standing may be subject to findings of the ZBA regarding standing are deemed prima facie lawful and case by case basis. See Goldstein, 154 N.H. at 395-96. While the factual sufficient to confer standing is a factual determination to be undertaken on a Whether a person’s interest in the challenged administrative action is standing as an abutter. p. 7 abutter,” and nothing in the minutes suggests that the ZBA afforded her reflect that the ZBA chair “did not feel any of the appellants qualified as an Dublin Road approximately 450 feet from Lot 8.9. Further, the ZBA minutes that she is not an actual abutter by describing her property as located across she actually was one. Indeed, the residents’ appeal document itself recognizes purposes in the proceeding before the planning board, it does not contend that Town points out that Patricia MacIsaac was cited as an abutter for notice between approximately 450 feet and 2,400 feet from the project site. While the

Regarding proximity, the residents’ respective properties are located

were aggrieved is not supported by the record. court did not err in determining that the ZBA’s conclusion that the residents the factors identified in Weeks, 119 N.H. at 545, we conclude that the trial N.H. at 96; Joyce, 156 N.H. at 529. Further, assessing the record in light of residents were aggrieved by the planning board’s decisions. See Johnson, 157 whether the undisputed facts in the record could support a finding that the not err when it conducted a de novo review to determine as a matter of law aside a ZBA decision for “errors of law”). We conclude that the trial court did to defer to a legally erroneous conclusion. See RSA 677:6 (trial court can set findings are afforded deference, see determination. See RSA 677:6, the trial court is not compelled resolved on a case by case basis, see We discern no error in the trial court’s decision to overturn the ZBA’s Goldstein, 154 N.H. at 395-96, and ZBA result from this project. Although standing is typically a factual question nor presented evidence supporting, particularized harm to them that would participation in the planning board hearing. The residents neither asserted, proposed changes to the Annex building, and the extent of the residents’ proximity of the residents’ property to that of GCI, the size of GCI’s lot 8.9, the document and the ZBA minutes reflect undisputed facts regarding the factual disputes, either implicitly or explicitly. Rather, the residents’ appeal board’s decisions, the ZBA neither rendered factual findings nor resolved any 109 (2007). In concluding that the residents were aggrieved by the planning

and ruled that this general interest is not sufficient to confer standing. board from approving plans that would violate the town’s zoning ordinance,” interest in this case was limited to a general interest in preventing the planning planning board hearing. Ultimately, it concluded, “It seems the residents’ planning board’s approvals,” and only one of the residents attended the residents “did not identify any injury they would face as a result of the within approximately 2,400 feet of the lot [GCI] sought to subdivide,” the the trial court remarked that “all of the residents involved in the appeal lived aggrieved” was not supported by the record. After review of the certified record, It also determined that the ZBA’s ruling that the residents were “persons approval of the project without additional land set aside as open

p. 8 Development in the Mountain Zone. The [residents] suggest that Jaffrey Land Use Plan, which is intended to encourage Open Space unprecedented development apparently set up to “game” the The [residents] argued that the subdivision proposed is an

In its brief, the Town asserts:

zone through what they saw as proper application of the zoning regulations. 8 residents essentially sought to generally protect open space in the mountain completed on the 1.75 acre lot rather than on a 4.8-acre lot. Rather, the no injury that their particular properties would incur in the event the project is they would face as a result of the planning board’s approvals.” They identified trial court correctly concluded that the residents “did not identify any injury regulations. Further, with respect to the immediacy of the injury claimed, the conversion to occur on a smaller parcel than allegedly required by the zoning condominium. Their objection exclusively focused upon allowing such building, and the proposed conversion of the Annex building to a four-unit expressed their approval of the intended improvements to the existing Annex building or its visual character. Indeed, in the appeal document, the residents does not intend to dramatically alter the footprint of the existing Annex Regarding the type of change proposed, the record indicates that GCI

by close proximity alone. See id. the Town that a non-abutter necessarily establishes a direct, definite interest Therefore, while close proximity is relevant, we reject the notion suggested by N.H. at 544-45. Physical proximity is but one of those factors. See id. at 545. standing to appeal a planning board or zoning board decision. Weeks, 119 a non-abutter has demonstrated a direct, definite interest sufficient to confer years after Towle, we set forth factors to be considered in determining whether direct interest sufficient to confer standing. Id. In Weeks, decided fourteen rule identifying whether and to what extent physical proximity establishes pecuniary interest in the change.”). However, we did not adopt a bright line or across from, an area sought to be rezoned may be thought to have a direct (“Persons entitled to protest by reason of ownership of property in, or adjoining, we considered the residents’ physical proximity to the redistricted area. See id. district as set forth under former RSA 675:5, they lacked standing to appeal; the residents did not live within the geographical parameters of the rezoned Nashua, 106 N.H. 394, 396 (1965). We rejected the contention that because which rezoned a residential district to that of general business. Towle v. city residents had standing to appeal the validity of an amending ordinance pecuniary interest in land use changes by neighbors.” In Towle, we held that was an abutter for notice purposes, based on the presumption of a direct that “an adjoining land owner had standing to appeal whether or not he or she We disagree with the Town’s contention that we held in Towle v. Nashua had repeatedly denied applications to construct much less significant p. 9 dimensions and use of existing structure in a protected district, planning board Considering all of the Weeks

in the planning board proceedings, and MacIsaac’s involvement was de Finally, aside from Patricia MacIsaac, none of the residents participated 9

standing where proposed project constituted a significant change to zoning board proceedings); Johnson, 157 N.H. at 96-100 (non-abutters had gas station and within conservation district and had extensively participated in standing where they owned a gas station within one thousand feet of proposed Thomas v. Town of Hooksett, 153 N.H. 717, 719-21 (2006) (non-abutters had single-family dwellings and interfered with non-abutter’s use of right of way); a significant change in use from undeveloped open space to subdivision with proceedings and the proposed project was located across the street, constituted (1980) (non-abutters had standing where they participated in planning board evidence or legally erroneous. Cf. Price v. Planning Board, 120 N.H. 481, 484 failed to demonstrate that the trial court’s decision is unsupported by the

“maintenance people on carts.” existing driveway and the intended access to a nearby golf course by minimis On this record, these assertions amount to unsubstantiated suppositions. See. The minutes reflect that she questioned only the intended use of an

they are hurt by” the administrative action). (standing not extended to “all persons in the community who might feel that would violate the Town’s zoning ordinance. See Goldstein, 154 N.H. at 395 general interest in preventing the planning board from approving plans that residents’ respective properties, and that the residents alleged no more than a lack of evidence concerning the nature and extent of any injury to the them. In short, the trial court correctly determined that there was a complete overcrowding, or increased traffic and noise, causing direct, definite injury to project on a 1.75 acre lot, rather than a 4.8 acre lot, would result in certified record evidencing that the residents demonstrated to the ZBA that the of property values due to overdevelopment. required could affect the preservation of open space, there is nothing in the would be the impacts of noise and traffic and potential diminution allowing a four-unit dwelling on a parcel smaller than otherwise allegedly the Mountain Zone. Presumably, the injury to the [residents] them which would result from increased traffic and noise. Additionally, while converted use, the residents did not allege, much less identify, any harm to traffic and noise. However, in the face of their express approval of this building into a four-unit condominium presumably will cause some increase in on unsubstantiated allegations to establish standing). Converting the existing Joyce, 156 N.H. at 529 (party challenging an administrative action cannot rest

space would result in overcrowding and over-commercialization of p. 10 10

DALIANIS, C.J.