2011-611, Hannaford Brothers Company v. Town of Bedford & a.

Retail Management and Development, Inc. Samantha D. Elliott on the joint brief, and Ms. Ellio t t orally), for the intervenor, Gallagher, Callahan & Gartrell, PC, of Concord (Ari B. Pollack and

Bedford Zoning Board of Adjustment. on the joint brief, and Mr. Mayer orally), for the Town of Bedford and Town of Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Mat t hew R. Serge

Mark S. Derby on the brief, and Mr. Rayment orally), for the petitioner. Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and

No. 2011 - 611 Hillsborough - n orthern judicial district

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

under RSA 677: p. 2 2.” RSA 677:4. Under RSA 677:2, a person entitled to apply for review. A “‘person aggrieved’ includes any party entitled to request a rehearing by an order of a zoning board of adjustment may pet ition the superior court for Planning Bd., 157 N.H. 94, 96 (2008). Under RSA 677:4, “[a]ny person aggrieved” sufficiently demonstrated its right to claim relief. Johnson v. Town of Wolfeboro allegations and determine, based on the facts, whether the petitioner has petitioner’s standing to sue, the trial court must look beyond the petitioner’s based upon a lack of standing. When a motion to dismiss challenges a T he petitioner argues that the trial court erred in dismissing its appeal

court granted the motion, and t his appeal followed. appeal, arguing that the petitioner lacked stand ing under RSA 677:4. The trial board of adjustment.” The Town and RMD moved to dismiss the petitioner’s allows appeal by “[a]ny person aggrieved b y any order or decision of the zoning The petitioner appealed to the superior c ourt under RSA 677:4, which

See RSA 677: p. 2 2 (Supp. 2012). directly affected” by its dec ision and, thus, lacked standing to move for rehearing. the petitioner’s motion for rehearing, finding that the petitioner was not a “person commercially zoned land surrounded by i ndustrial properties. The ZBA denied area; and RMD ’s seventeen - acre parcel on Route 114 is a “unique piece” of “rural character” of th e area and to avoid “massing,” or visual takeover of the of the comme rcial zone along Route 101; there was a desire to maintain the buildings with a footprint larger than 40,000 square feet due to the limited depth area on Route 101 where the petitioner’s property is located cannot support where RMD sought to build. In doing so, it accepted RMD’s argument s tha t: the was intended to limit the size of buildings on Route 101, but not on Route 114, granted it. The ZBA found, among other things, that the “sp irit of the ordinance” Although t he petitioner objected to the variance application, the ZBA

proposed supermarket is 3.8 miles from the peti tioner’s supermarket. foot supermarket on Route 114 in the commercial district. The location of RMD’s exceed the 40,000 square foot restriction in order to construct a 78,33 p. 2 2 square In November 2010, RMD filed a n application with the ZBA seeking a variance to intervenor in this case, develops supermarkets fo r Demoulas Super Markets, Inc. to 40,000 square feet. Retail Management and Development, Inc. (RMD), the amendment re stricting the size of any single building in the commercial d istrict 2006, shortly after the Town of Bedford (Town) enacted a zoning ordinance The petitioner obtained planning board approval for its superma rket in November 3 6,541 square foot supermarket on Route 101 in Bedford’s commercial district. The following facts are undisputed. The petitioner owns and operates a

RSA 677:4 (Supp. p. 2 2012). We affirm. the Town of Bedford Zoning Board of Adjustment (ZBA) for lack of standing. See order of the Superior Court (Tucker, J.) dismissing its appeal from a decision of CONBOY, J. The petitioner, Hannaford Brothers Company, appeals an p. 3 3

N.H. 577, 580 (2005)), the ZBA created a policy - setting and precedential unique physical conditions, see Chester Rod & Gun Club v. Town of Chester, 152 (rather than the “unnece ssary hardship” analysis based upon the property’s comparison occurred in the context of the ‘spi rit of the ordinance’” analysis Route 101 but not on Route 114. The petitioner argues that “because this 114, finding that the ordinance was intended to limit the size of buildings on the petitioner’s location on Route 101 and RMD’s proposed location on Route variance, see RSA 674: p. 3 33, I(b) (Supp. 2012), the ZBA drew a comparison between when considering the “spirit of the ordinance” requirement for granting a interests and development rights.” Specifically, the petitioner points out that “directly referencing and implicating [the petitioner’s] business interests, property petitioner first argues that the ZBA and RMD conferred standing upon it by of the injury claimed,” id. – as to which it advances two arguments. The The petitioner focuses its argument on the third Weeks factor – “immediacy

favor. See Weeks, 119 N.H. at 545. actively participated in the init ial ZBA hearings, the fourth factor weighs in its second factor weighs in the petitioner’s favor. Further, b ecause the petitioner construct a building nearly double the 40,000 square foot restriction. Thus, the proposed” by RMD, there is no question that it is substantial: it seeks to RMD’s development site, it lacks proximity. Regarding the “type of change First, the petitioner concedes that because it is located p. 3 3.8 miles away from We begin by evaluating the undisputed facts in light of the Weeks factors.

novo.” Johnson, 157 N.H. at 96. facts are not in dispute, we review the trial court’s [standing] determination de Hutchinson, 149 N.H. 749, 751 (200 p. 3 3); h owever, where, as here, “the underlying generally revi ew the trial court’s factual findings deferentially, see Richmond v. definite interest in the outcome of the proceeding. See id. at 544 - 45. W e any other relevant fact or s bearing on whether the appealing party has a direct, of Dover, 119 N.H. 541, 545 (1979). This list is not exhaustive; we also consider participation in the administrative hearings. See Weeks Restaurant Corp. v. Ci ty proposed; (3) the immediacy of the injury claimed; and (4) the challenging party’s the challenging party’s property to the subject site; (2) the type of change standing in this context, we consider the following factors: (1) the proximity of case by case basis.” Id. When evaluating whether an appealing party has sufficient to confer standing is a factual determination to be undertaken on a “Whether a person’s interest in the challenged administrative action is

Investors of NH v. Town of Jaffrey, 161 N.H. 675, 680 (2011). definite interest in the outcome of the action or proceeding.” Golf Course affected” for standing purposes, the appealing party must show “some direct, directly affected” by the ZBA’s decision. To prove that it is a “person directl y “part y to the action”; thus, we consider whether the petitioner is a “person affected thereby.” Here, the petitioner does not argue that it has standing as a rehearing includes “any party to the action or proceedings, or any person directly p. 4 4

Golf Course Investors, 161 N.H. at 683; see also Appeal of Londonderry particular propert [y] would incur” as a result of the administrative decision. See In deed, to have standing, a party is required to identify an “injury that [its]

business competition). districts,” concluding that the only adverse impact on petitioners was increased standing to raise issues concerning the proper application and use of zoning taxpayers, and owners of a business within the com mercial district gave them petitioners’ argument “that their status as citizens of the town, property owners, e.g., Nautilus of Exeter v. Town of Exeter, 139 N.H. p. 4 450, 451 - 52 (1995) (rejecting proceedings. Such generalized interest is insufficient to confer standing. See, most, the petitioner had only a generalized interest in the outcome of the ZBA variance should it apply for one in the future: its location on Route 101. A t feature of the petitioner’s prop erty that may make it less likely to obtain a ordinance: its location on Route 114. In the process, the ZBA also identified a RMD’s property that it found made a variance consistent with the spirit of the (2006) (brackets a nd quotation omitted). The ZBA identified a characteristic of local administrator’s decision.” Goldstein v. Town of Bedford, 154 N.H. 393, 395 extended to all persons in the community who might feel that they are hurt by a p roceeding.” Golf Course Investors, 161 N.H. at 680. “Standing will not be demonstrating “some direct, definite interest in the outcome of the action or action... must sufficiently demonstrate his or her right to claim relief” by “[W]hen the issue of standing is raised, the party challe nging the administrative the locality” would have standing to appeal. This is not the stat e of our law. district whose property is considered in the ZBA’s evaluation of the “character of Under the petitioner’s rationale, any property owner within the zoning

character of the locality. its task of evaluating the merits of RMD’s variance petition is to consider the (quotation omitted). Thus, one of the accepted ways for the ZBA to accomplish character of the locality.” Farrar v. City of Keene, 158 N.H. 68 p. 4 4, 6 91 (2009) violate basic zoning objectives is to examine whether it wou ld alter the essential (quotation omitted). “[O]ne way to ascertain whether granting the variance would Harborside Assocs. v. Parade Residence Hotel, 162 N.H. 508, 514 (2011) the ordinance, its grant must violate the ordinance’s basic zoning objectives.” See RSA 674:33, I(b)(2). “[F] or a variance to be... inconsistent with the spirit of to determine whether the proposal complies with the “spirit of the ordinance.” See RSA 677: 2, : 4. In evaluating any petition for a variance, the ZBA is required mandate to limit standing to persons “directly affected” by the ZBA’s decision. standing. To accept the petitioner’s argument would disregard our statutory district to RMD’s proposed location establishes sufficient injury to confer We disa gree that the ZBA’s comparison of the petitioner’s location in the

“operations and future expansion options.” from the p. 4 40,000 square foot requirement,” thereby limit ing the petitioner’s interpretation that “will form the basis of future de terminations about variances p. 5 5

standing to appeal. de termination, the Weeks factors, on balance, do not support the petitioner’s any concrete injury to its particular property as a result of the ZBA’s we conclude that because the petitioner lacks proximity and has failed to allege A lthough the second and fourth Weeks factors weigh in favor of standing,

to its particular property, and the third Weeks factor weighs against standing. Nautilus, 139 N.H. at 4 p. 5 52. Thus, the petitioner fails to allege any concrete injury of a ZBA decision is not a weapon to be used to stifle business competition. See “proper party” is a question “separate from the merits of the appeal”). An appeal such a standard. See Weeks, 119 N.H. at 545 (whether an appealing party is a it alleges that the ZBA’s decision is unlawful, it has standing to appeal. We reject of an appeal with the standing requirement: according to the petitioner, because grant a varia nce to a competitor. This argumen t improperly conflate s the merits business should be permitted to challenge the validity of any ZBA decision to v. Leskiewicz, 110 N.H. 462, 466 (1970). In effect, the petitioner argues that any otherwise contravenes generally - applicable zoning ordinance s. See New London by definition grants authority to the owner to use its property in a manner th at RMD a variance from a “generally - applicable” zoning ordinance. Yet, a variance competition unfair or illegal, according to the petitioner, is that the ZBA granted injury stems from unfair or illegal competition by RMD. W hat makes the The petitioner’s argument is unavailing. The petitioner contends that its

confer standing. illega lly - granted variance from a generally - applicable zoning restriction does standing; however, competition from a 78,332 square foot supermarket under an conforming 40,000 square foot business in the district would not co nfer petitioner dra ws the following distinction: i ncreased competition from a arguing that this case presents an issue of unfair or illegal competition, the harm but rather is deemed a natural risk in our free enterprise economy.”). In N.H. at p. 5 545 (“[I] njury resulting from competition is rarely classified as a legal sufficient to confer standing. See Nautilus, 139 N.H. at 452; see also Weeks, 119 a cknowledges that “increased” business competition is not a type of harm ZBA’s decision allows for “unfair or illegal” competition. The petitioner The petitioner also argues that it has suffered a direct injury because the

of Weare, 1 p. 5 5 p. 6 6 N.H. 526, 530 (2007). not give rise to a ‘definite’ interest in the outcome of th[e] appeal.” Joyce v. Town feet. Thus, the petitioner’s claimed injury is, at most, “speculative,” and “does or even if it actually intends to expand its supermarket beyond 40,000 square affect its operations and future expansion options; y et, it does not specify when injury in fact.”). T he petitioner argues tha t the ZBA’s interpretation will directly appellant must demonstrate that the appellant has suffered or will suffer an appeal a decision of an administrative agency denying a motion for rehearing, an Neighborhood Coalition, 145 N.H. 201, 203 (2000) (“In order to have standing to 6

appealing party can establish a direct injury to its own property or rights, that challenge ordinances applied in a discri minatory manner. So long as an to prove standing does not mean that others in the district would not be able to manner.” We disagree. S i mply because the petitioner fails to sustain its burden district could challenge a zoning ordinance which was applied in a discriminatory the Equal Protection Clause or RSA p. 6 674:20, then “no person within a zoning The petitioner contends that if it does not have standing to appeal under

Golf Course Investors, 1 p. 6 61 N.H. at 6 84. basis that, in the residents’ view, the plans would violate a Town ordinance. See have standing to prevent an administrative body from approving plans on the Investors, we reject ed a similar ly broad argument, finding that r esidents do not that all owners in the district “stand on an equal footing.” I n Golf Course specifically affected its own rights. It asserts only that it has a right to ensure T he petitioner has failed to show how the ZBA’s decision has directly and

(1991) (emphasis added); see also Joyce, 15 p. 6 6 N.H. at 529. will be directly and specifically affected.” Appeal of Richards, 134 N.H. 14 8, 154 alleged, an appealing party must prove that its “own personal rights have been or prove standing under RSA 677:4. Even when a constitutional challenge is There is no provision in RSA 674:20 relieving the petitioner from its burden to Clause and RSA 674:20 does not confer standing to challenge the ZBA’ s decision. standing. In other words, m erely alleging violations of the Equal Protection the merits of the petitioner’s claim and does not address the threshold issue of Whether the petitioner is “similarly situated,” however, is relevant only to

it need not s how that it applied for a variance to be “similarly situated.” for a variance from the limitation on square footage.” The petitioner argues that that the petitioner was not “similarly situated” to RMD because “it never applied each district.” T he trial court rejected the petitioner’ s argument on the ground “A ll regulations shall be uniform for each class or kind of buildings throughout 152 N.H. 142, 14 p. 6 6 (2005) (brackets omitted). Similarly, RSA 674:20 provides, similarly situated individuals in a different manner.” Taylor v. Town of Plaistow, government impermissibly established classifications and, therefore, treated “A n equal protection challenge to an ordinance is an assertion that the

footing. We disagree. h andedly, so that all property owners in the commercial district stand on equal that zoning regulations relating to the commercial district are applied even petitioner argues that under these provisions, it has a direct interest in seeing the State Constitution’s Equal Protection Clause and RSA p. 6 6 p. 7 74:20 (2008). The a dditional grounds in support of its standing argument. First is its claim under outcome. See Weeks, 119 N.H. at 544 - 45. Here, the petitioner asserts two releva nt to evaluating whether the petitioner has a direct, definite interest in the I n addition to the Weeks factors, w e also consider any other fact or s 7

DALIANIS, C.J.