2011-236, Harborside Associates, L.P. v. City of Portsmouth

Springer Law Office, PLLC

No. 2011-236 Rockingham

the order of the Superior Court (Lewis LYNN, J. The intervener, Parade Residence Hotel, LLC (Parade), appeals amend its previously approved site plan. We affirm. upheld the City Planning Board’s (Board) approval of Parade’s application to Shaines & McEachern, P.A.

and Susan W. Chamberlin

of the Zoning Board of Adjustment (ZBA) of the City of Portsmouth (City) that

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 brief and orally), for the intervener, Parade Residence Hotel, LLC.

brief, and Mr. Sullivan orally, for the respondent, City of Portsmouth. Robert P. Sullivan, of Portsmouth, on the

brief and orally), for the petitioner, Harborside Associates, L.P.

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 Our review of the superior court’s decision is deferential. Derry Senior

qualify for the exemption under RSA 674:39. Parade appeals. presented a “major change” to its previously approved site plan, which did not

replace the previously approved retail space with a conference center, Parade

The superior court vacated the ZBA’s decision, holding that by seeking to Harborside appealed to the superior court pursuant to RSA 677:4 (2008).

rehearing.

674:39 (2008). The ZBA subsequently denied Harborside’s motion for that the amended site plan was exempt from the 2010 Ordinance under RSA appealed to the ZBA, which affirmed the Board’s ruling. The ZBA determined

without requiring Parade to comply with the new ordinance. Harborside

in plans. After a public hearing, the Board approved the application to amend

Parade was required to comply with the 2010 Ordinance because of the change conference center. Harborside objected to the amendment, contending that plan, seeking to replace the previously approved retail space with a 300-person

2010, Parade submitted an application to the Board to amend its 2008 site

in effect in 2008 when the Parade project was first approved. On January 19, changes, the new ordinance adopted parking requirements different from those 2010 Ordinance), which became effective on January 1, 2010. Among other RSA 674:39 provided, in pertinent part:

which we review de

as prima

On December 21, 2009, the City adopted a new zoning ordinance (the the 2010 Zoning Ordinance. When Parade submitted its application to amend, Parade first argues that RSA 674:39 exempts its amended site plan from

The construction of a zoning ordinance’s terms, however, is a question of law, unreasonableness or an identified error of law. Id.; see also RSA 677:6 (2008).

facie lawful and reasonable, and cannot set aside its decision absent

time, the superior court must treat the factual findings of the planning board unless it is unsupported by the evidence or legally erroneous. Id. At the same Dev. v. Town of Derry, 157 N.H. 441, 447 (2008). We will uphold the decision

in July of 2009. hotel, a restaurant, and ground floor retail space. Parade began construction

approved Parade’s application to construct a five-story building, consisting of a

operator of the Sheraton Portsmouth Hotel. On September 18, 2008, the Board the property of the plaintiff, Harborside Associates, L.P. (Harborside), the The record reflects the following relevant facts. Parade’s property abuts

p. 3 Next, Parade argues that the record does not support the superior court’s

RSA 674:39, we decline to apply the administrative gloss doctrine. not fall within the protection of the exemption. In short, seeing no ambiguity in accordance with the terms” of the original approval and, therefore, clearly does

applicants over a period of years without legislative interference.” DHB, Inc. v. RSA 674:39 (2008) (amended 2011). interpret the clause in a consistent manner and apply it to similarly situated amendment that substantially changes the plan is, by definition, not “in upon an ambiguous clause when those responsible for its implementation

approval.” RSA 674:39, I(a). Any development pursuant to a site plan As a rule of statutory construction, “[a]n ‘administrative gloss’ is placed with the approved subdivision plat . . . or in accordance with the terms of the. . . . provide that any development or building on the site must occur “in accordance approval, or in accordance with the terms of the approval

under active construction and has not received a certificate of occupancy. exempt from subsequently enacted zoning ordinances, RSA 674:39 does subdivision plat within 12 months after the date of the RSA 674:39 exemption to amended site plans as long as the project is still

begun within 24 months after the date of a site plan’s approval. subsequent changes to zoning ordinances, provided that substantial development or building has 1 The statute, amended in 2011, now provides a five-year exemption to approved site plans from

While it does not directly address whether a site plan amendment is begun on the site . . . in accordance with the approved the doctrine of administrative gloss, and adopt the Board’s policy of applying (a) Active and substantial development or building has

doctrine. Anderson v. Motorsports Holdings, LLC is on this point ambiguous. To resolve the ambiguity, Parade urges us to apply, 155 N.H. 491, 502 (2007). or ordinance, however, precludes application of the administrative gloss period of 4 years after the date of approval; provided that: Town of Pembroke, 152 N.H. 314, 321 (2005). A lack of ambiguity in a statute

amendment to a site plan exempt under the statute is also exempt, the statute Parade argues that because RSA 674:39 does not address whether an subsequent changes in . . . zoning ordinances . . . for a

in the registry of deeds . . . shall be exempt from all plan approved by the planning board and properly recorded 1

and properly recorded in the registry of deeds and every site I. Every subdivision plat approved by the planning board p. 4 10.1115.61 of the ordinance, which states: “The requirements [pertaining to

Parade’s amended site plan. Parade directs our attention to Article 11, Section

674:39 exemption, the 2010 Ordinance, by its terms, does not apply to Parade next argues that even if its amendment is not entitled to the RSA

site plan is not entitled to the exemption under RSA 674:39. inconsistent with the terms of the original approval. Cf

approved site plan, we agree with the superior court that Parade’s amended previously unapproved use, the resulting change is substantial, and have different designated uses. With this substantial change to its previously- Ordinance, where conference centers, retail space, hotels, and restaurants

an approved site plan seeks to replace a previously approved use with a new, Parade’s proposed amendment crossed it. Where, as here, an amendment to This difference is reflected in the Table of Uses, Section 10.440 of the 2010 ordinances passed after construction has begun; wherever that line may lie,

site plan if it substantially changes that plan. Cf commercial environment where customers may purchase goods and services. longer be said to be “in accordance” with the terms of a previously-approved to a site plan that is substantial enough to require compliance with new zoning qualitatively different from retail space, which is designed to provide a terms of the original approval. Therefore, we hold that an amendment can no center, which is designed to host large meetings, seminars, and other events, is

In this case, we have no occasion to identify the precise degree of change the development to such an extent that it is no longer in accordance with the space, did not include the construction of a conference center. A conference circumstances of the particular case.

to zoning ordinances only amendments to approved site plans that do not alter original approved site plan, which was for a hotel, a restaurant, and retail make even incidental changes, RSA 674:39 exempts from subsequent changes site plan’s original approval necessarily turns upon the facts and be treated as absolute, as this would deprive developers of any flexibility to

exemption to a site plan that was “neither approved nor recorded”). Parade’s Whether an amendment constitutes a substantial change from the terms of the Candia, 132 N.H. 574, 579 (1989) (holding that RSA 674:39 provides no While we recognize that the terms of a site plan approval cannot sensibly. Chasse v. Town of

to which it was put before alteration” (citations and quotations omitted)). use for a purpose or in a manner which is substantially different from the use “major” change. We disagree. prohibiting nonconforming uses “will apply to any alteration of a building or of the overall site plan, the superior court erred by concluding that it was a Town of Hampton, 158 N.H. 222, 228 (2009) (holding that zoning ordinances

that because Parade’s proposed amendment affects only a small physical area exemption because it constituted a “major change.” Parade and the City argue requirements of the 2010 Ordinance. See p. 5 project (even those portions that were not to be changed) from the use,” there would be no basis whatsoever for exempting any aspect of the

what is at issue is the ZBA’s legal conclusion

Parade’s argument that the original approval did not constitute an “existing

regarding the change of use sought by Parade are not in dispute. Instead, The ZBA’s decision, however, did not involve factual findings; the facts under the ordinance in effect when the site plan application was approved.” not as of the date it receives a certificate of occupancy. Indeed, if one accepts “exists” for Parade’s site plan as of the date it obtained the approval in 2008, arranged, [or] intended . . . .” Such a “designated, arranged, intended” purpose in the site plan amendment submitted after the ordinance took effect. See

overturning the ZBA’s erroneous legal ruling. See 5

to the ZBA’s finding that [Parade’s] amendment could reasonably be reviewed

“use” is defined as “Any purpose for which a lot . . . may be designated, ordinance concerning its applicability to the substantial change in use reflected

A f f i r m e d

express statutory language.”). The superior court, therefore, did not err by

Finally, the City argues that the superior court “failed to show deference

and quotations omitted)). In the “Definitions” section, Article 15 of the 2010 Ordinance, the term decision flatly contradicts the unambiguous terms of a newly-enacted DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred.

of such uses. We disagree..

court may set aside ZBA decision for errors of law).

(“[A]n agency’s interpretation will not be given deference if it is contrary to the Anderson, 155 N.H. at 502; cf. Appeal of Stanton, 147 N.H. 724, 728 (2002)

appears from their context that a different meaning was intended.” (citations administrative gloss be stretched so far as to cover this case, since the ZBA’s have to meet the requirements of the 2010 Ordinance. Nor can the doctrine of and thus the 2010 Ordinance does not apply to Parade’s proposed amendment facts concerning the change of use proposed, the amended site plan did not

used in a zoning ordinance will be given their ordinary meaning unless it

spaces required for the lot . . . .” According to Parade, because it has not yet existing uses that results in an increase in the number of off-street parking

any existing uses on a lot, but shall apply to any change or expansion of off-street parking in the district where the project is located] shall not apply to