2011-496, Property Portfolio Group, LLC v. Town of Derry; Dom Vincent, LLC v. Town of Derry

Griffith & Associates, P.L.L.C.

No. 2011-496 Rockingham

Boutin & Altieri, P.L.L.C.

Dom Vincent, LLC, filed no brief.

Guimond Sabean on the brief), for the respondent.

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

petitioner Property Portfolio Group, LLC.

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 It further asserted that complying with the setback would bring the dumpsters would interfere with the flow of traffic, including delivery and emergency vehicles. setback would place them so far into the delivery and parking area that they unnecessary hardship because locating the dumpsters so as to comply with the waiver, MTM asserted that strict compliance with the setback would cause

plan. LDCR the board formally votes on the request; and (6) the waiver is noted on the final 2 writing; (4) the waiver is supported by evidence submitted by the applicant; (5) secure the objectives of the regulations which are waived”; (3) the request is in [the] regulations”; (2) the board “requires such conditions as will, in its judgment, with” it, so long as: (1) the waiver does not “nullify[] the intent and purpose of specific regulation if “unnecessary hardship may result from strict compliance The town’s site plan re gulations expressly authorize the board to waive any

regulations to include a provision allowing for waiver). In its written request for a

§ 170-50(A); see RSA 674:44, III(e) (requiring site plan review

eighteen feet from its south lot line and three feet from the west lot line. from its west side lot line, and requested approval to move them to a location approximately twenty-three feet from its south lot line and four-and-a-half feet Specifically, MTM represented that the dumpsters were then located seeking permission to move the dumpsters closer to its boundary with PPG. determination, MTM submitted a request for a waiver from this requirement, (2008) (LDCR). In 2010, as part of an application for further site plan prior use as a fire station to a restaurant and bar. See N.H., Land Development Control Regulations, part 3, art. XI, § 170-67(B)(1) granted an application for site plan determination to convert the property from its required to be at least twenty-five feet from any property boundary. See Derry, building on Central Street abutting the property to the south. In 2005, the board Pursuant to the town’s site plan regulations, solid waste storage areas are property, and Central Street is to its east. PPG owns a residential apartment dumpsters are located at the southwest corner of the lot. West Broadway and Central Street in Derry. West Broadway is north of the boundary. A loading zone services the building on its south side. Two covered The record reflects the following facts. MTM owns property at the corner of the south of the parking area, a landscaped buffer runs along the lot’s southern building to its west and south, leading from West Broadway to Central Street. To most of it. An L-shaped parking area with a one-way drive aisle surrounds the 11,325 square feet, and the restaurant, known as The Halligan Tavern, covers Group v. Town of Derry, 154 N.H. 610 (2006). The lot comprises approximately

See RSA 674:44, III(e) (Supp. 2011). We affirm. Realty, LLC (MTM), a waiver from a provision of the town’s site plan regulations. board (board) of the respondent, the Town of Derry, to grant the applicant, MTM order of the Superior Court (Lewis, J.) upholding a decision of the planning HICKS, J. Petitioner Property Portfolio Group, LLC (PPG) appeals an that point, the board voted to accept jurisdiction, and to waive the solid waste

p. 3 Another member added that he “would rather meet the life safety code.” At

waste storage setback, he observed that it would not satisfy the fire code. was also near the gas tank. While locating the dumpsters there might meet the that fire safety was a concern because that area was partially a fire lane, and

was behind where gas is delivered to the building. The member then noted

trucks ordinarily utilize the loading zone. MTM added that the loading zone whether delivery trucks use the loading zone, MTM confirmed that delivery area that would meet the requirements, was the loading zone.” When asked

3 elsewhere. One member “recalled . . . the only other place to put the dumpster

The board then explored the feasibility of locating the dumpsters

suggested that slats could be added to the fence. suggestions, but that chain link would be the most practical. The member asked what type of fence it would use, MTM stated that it was open to fence them in with fencing as high as the tallest dumpster. When the member represented that while the dumpsters were not at that time enclosed, it would member asked whether MTM was planning to enclose the dumpsters. MTM the waiver request, and asked follow-up questions of MTM’s representatives. One After closing the public hearing portio n of the meeting, the board discussed

tenants and encroach on the buffer, and that MTM had not established hardship. its ability to rent apartments, that moving them closer would further affect its that the dumpsters were already unlawfully located, that they negatively affected the Broadway and Central Street sight lines. PPG opposed the request, asserting safest location for the dumpsters, and was the furthest possible distance from away from the building. MTM concluded that the proposed location was the time required for trucks to access the dumpsters, and would keep the trucks trucks to access the dumpsters from Central Street, would lessen the amount of the building. MTM further noted that the proposed location would allow refuse “allow[] safety vehicles, fire equipment and traffic to come around the corner” of according to MTM, was three feet into the paved portion of the lot, and would vehicles and to facilitate traffic around the building.” The proposed location, lane, and “the maximum amount of feasible space [was required] for safety southwest corner of the building as possible because the area contained a fire represented that its proposal was to move the dumpsters as far from the The board held a public hearing on the application. At the hearing, MTM

the dumpsters would be less visible from the street. properly screen and enclose the dumpsters in their new location, and because the intent and purpose of the setback, MTM asserted, because MTM would improve access to the dumpsters by refuse trucks. The waiver would not nullify to MTM, would provide safer access to all areas of the building, and would motor vehicle traffic. Moving the dumpsters to the proposed location, according closer to the sidewalks and streets, making them more visible to pedestrian and p. 4 The trial court’s review of a planning board decision is limited. See

implication; and (3) the evidence did not support a waiver. as imposing ministerial or technical requirements that may be met by

under RSA 674:44, III(e); (2) the trial court erred by treating RSA 674:44, III(e)

On appeal, PPG argues: (1) the board failed to make findings required

pertinent waiver were sufficiently met.

determination type of process. The dictates for the granting of the

well for the Board to proceed here through a site plan substantive requirements for a waiver were met. It was proper as minutes show the Board’s basis for concluding that the

the Board’s decision for purposes of RSA 674:44, III(e). The

The Court deems the minutes to reflect sufficiently the basis for

and screening. dumpster placement other than to grant the waiver with fencing

trying to determine if there were any reasonable alternatives for the

of the pertinent circumstances, which included Board members minutes do reflect that the Board gave a sufficiently detailed review state the basis for its grant of the waiver in the minutes. Yet the

4 upon which they could have been reasonably based.” Id

Pembroke Here, it is true that the Planning Board did not specifically, 152 N.H. 314, 319-20 (2005). as did the trial court based upon the same evidence, see DHB v. Town of looking to whether a reasonable person could have reached the same decision order unless it is unsupported by the record or legally erroneous, see id., decision was unreasonable. See id. We, in turn, will uphold the trial court’s burden to demonstrate, by the balance of probabilities, that the board’s

agrees with a planning board’s findings, but rather whether there is evidence identified error of law. See id. “The trial court is not to determine whether it reasonable, and cannot set the decision aside absent unreasonableness or court must treat the board’s factual findings as prima facie lawful and Editions Properties v. Town of Hebron, 162 N.H. 488, 491 (2011). The trial

the record which, PPG claimed, it was obligated to make pursuant to RSA

unlawfully by granting the waiver because it had not made specific findings on

PPG and another abutter appealed to superior court. See

(Supp. 2011). Among other arguments, PPG contended that the board acted

the area with the appropriate screening.” storage setback “with the condition that a chain link fence be provided around specific findings be made, it has, in other contexts, said so expressly. See p. 5 recorded in the minutes.” RSA 674:44, III(e). Where the legislature intends that of fact. Rather, it simply required that the “basis” of the board’s decision “be Nothing in RSA 674:44, III(e) obligate d the board to make specific findings

We disagree. statutory ground it was acting under, and to record its findings of fact expressly. PPG construes this language as obligating the board to vote specifically on the

granted by the planning board . . . be recorded in the minutes of the board.” RSA 674:44, III(e). The statute further requires that “[t]he basis for any waiver constructed or established . . . : the basic principle : GROUNDWORK.” Webster’s The plain meaning of “basis” is “something on which anything is properly carry out the spirit and intent of the regulations. conditions of the land in such site plan, indicate that the waiver will (2) Specific circumstances re lative to the site plan, or 5 intent of the regulations; or

board’s decision to grant a waiver be adequately reflected in its minutes. Cf. Ltd. 674:44, III(e), therefore, to require only that the underlying rationale of the Third New International Dictionary 182 (unabridged ed. 2002). We construe RSA

planning board make express findings of fact. See Clare, 160 N.H. at 385. requirement, which the legislature itself did not see fit to include, that the appointed member). Accordingly, we decline to read into RSA 674:44, III(e) a of duty, or malfeasance in office” in order for land use board to remove an the applicant and waiver would not be contrary to the spirit and finding”); RSA 673:13, I (2008) (requiring “written findings of inefficiency, neglect (1) Strict conformity would pose an unnecessary hardship to guidelines would be inappropriate or unjust and state the facts supporting such may grant a waiver under the statute if it finds, by majority vote, that either: written finding or a specific finding on the record that the application of the agreement that is inconsistent with the child support guidelines, to “enter a RSA 458-C:4, IV (2004) (requiring judicial officer, in approving child support

planning board authorize it to waive any portion of them. A planning board

consulting legislative history only where the statutory language is ambiguous,

RSA 674:44, III(e) requires that site plan review regulations adopted by a

Clare v. Town of Hudson, 160 N.H. 378, 384-85 (2010).

legislature might have said nor adding language it did not deem necessary, and the words used in a statute, see id p. 6 . at 508, neither considering what the 507 (2010). Wherever possible, we ascribe the plain and ordinary meanings to of law which we review de novo. Atwater v. Town of Plainfield, 160 N.H. 503, The interpretation and application of a statute is, ultimately, a question .

6 legally erroneous p. 6 . See say that the trial court’s decision was either unsupported by the evidence or adequate screening as a condition to the waiver. Upon this record, we cannot would preserve the overall intent of the setback. The board imposed fencing and was the safest location for the dumpsters, and that fencing and screening them complied with safely. MTM presented further evidence that the proposed location building by emergency and delivery vehicles, and could not otherwise be opportunity for notice and participation. See caused unnecessary hardship because it interfered with traffic and access to the the town’s argument that any deficiency was procedural and did not impair PPG’s for the board’s decision. MTM presented evidence establishing that the setback Because we conclude that the trial co urt did not err, we need not address We likewise conclude that the record contains more than ample support

screened so as not to undermine the purpose of the setback p. 6 . reflect the board’s concern with whether the dumpsters would be adequately DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred. risks, and would interfere with MTM’s use of a loading zone. The minutes further complying with the setback would violate fire code requirements and pose safety Affirmed in this regard, adequate. The minutes demonstrate the board’s concerns that adequately reflected. We agree with the trial court that the board’s minutes were, extended consideration. See Vogel v. Vogel, 137 N.H. 321, 322 (1993). reviewed the minutes to determine whether the basis for the decision was reviewed PPG’s remaining arguments and conclude that they warrant no as imposing mere ministerial and technical requirements. Rather, it properly RSA 676:4, IV (2008). We have Contrary to PPG’s argument, the tria l court did not treat RSA 674:44, III(e)

N p. 6 .H. at 384-85. not consider the legislative history offered by PPG in its brief. See Clare, 160 RSA 676:4, I(h) (Supp. 2010)). Because the statute is not ambiguous, we need adequately reflected reasons for denying subdivision application so as to satisfy Editions Properties, 162 N.H. at 492-93 (finding planning board record