2018-0495, Denis Girard & a. v. Town of Plymouth

(2) the board relied on a subdivision regulation that does not specifically “decision making” when it relied upon an “overly broad” subdivision regulation; application because: (1) the board “engaged in impermissible ad hoc rule” and that the trial court erred in upholding the planning board’s denial of their of Plymouth Planning B oard deny ing the ir subdivision application. They argue an order of the Superior Court (MacLeod, J.) upholding a d ecision of the Town DONOVAN, J. The plaintiffs, Denis Girard and Florence Leduc, appeal

orally), for the defendant. Brendan Avery O’Donnell on the memorandum of law, and Mr. O’Donnell Donahue, Tucker & Ciandella, PLLC, of Exeter (John J. Ratigan and

brief and orally), for the plaintiffs. Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the

No. 2018 - 0495 Grafton

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 pre ss. 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

subdivision map was c onsistent with the sketch attached to the settlement subdivision application to the planning board in November. The proposed Board no later than December 1 of that year. T he parties submitted a ordered the parties to file a subdivision application with the Plymouth Planning subdivision application. T he Circuit Court (Rappa, J.) denied the motion but co - owners in the probate division of the circuit court for failure to submit a stipulat ion and, in p. 2 2016, the plaintiffs filed a motion for contempt against the several years, however, the parties disputed the requirements of the settlement The Probate Court (Boyle, J.) approved the settlement stipulation. F or

approval. parties exchange quitclaim deeds within 30 days of receiving final subdivision not received State or Local Approvals.” The stipulation required that the states, “I t i s understood that the sketch/plan is conceptual in nature and has until it intersects with the existing woods road. The settlement stipulation within its boundaries, beginning at Fairground s Road and running northerly sketch also depicts a proposed new access to the larger parcel, wholly confined land abutting Fairgrounds Road in the southwest corner of the property. The Fairgrounds Road, while the larger parcel would retain a narrow corridor of southern portion of the woods road and most of the southwest boundary along A s portrayed in the sketch, the smaller lot would encompass the

parcels. sketch of the property that depicts the proposed lot lines separating the two co - owners would take title. Attached to the stipulation was a hand - drawn after the subdivision approval, and a northerly 199 - acre parcel, to which the property into a southerly 50 - acre parcel, to which the plaintiffs would take title Pursuant to a settlement stipulation, the parties agreed to subdivide the In p. 2 2009, the plaintiffs sought to partition the property in probate court.

southwest corner and runs northerly through the property. “woods road,” which originates from Fairgrounds Road near the property’s border abuts Fairgrounds Road. V ehicles access the property through a land in Plymouth with four other people (co - owners). The property’ s southwest evident from the certified record. T he plaintiffs own an undeveloped parcel of The following facts are drawn from the trial court’s order or a re otherwise

address each of these arguments and affirm. application at a hearing without notice to the applicants or the public. We unreasonable; and (6) the board violated New Hampshire law by discussing the application based upon the proposed subdivision’s impact on the wetlands was evidence provided by a wetlands scientist; (5) the board’s decision to reject the is preempted by Stat e statute; (4) the trial court unreasonably relied on certain authorize the board to regulate wetlands; ( p. 3 3) the board’s regulation of wetlands 3

requirements upon the subdivider in order to preserve and protect the existing subdivision regulations, which allows the planning board to “impose state d that the board relied upon Article VIII, S ection B of the Town’s alternatives presented to them as reasons for the denial. The decision further site visit, the wetlands scientist’s letter, and the plaintiffs’ rejection of the three decisi on, citing the concerns the board raised about the wetlands, the board’s voted unanimously to deny the application and subsequently issued a written board that they would not agree to any of the proposed alternatives. The board A t the last hearing on the matter, on June 15, the plaintiffs informed the

alternative; or ( p. 3 3) “run [] a right of way that accomplishes the same thing.” way “east of the major wetland,” consist ent with the wetland s scientist’s second boundary lines of the subdivision to accommodate the relocation of the access (1) allow the co - owners to use the exi sting woods road; (2) relocate the the hearing and again asked the parties to “seriously consider” three options: with less wetlands impact.” Based upon this information, the board continued wetlands crossing w hen there is an alternate location for an access or driveway Hampshire Department of Environmental Services (DES) would not “approve a easement on the existing access roadway.” The letter also noted that the New provide a “better alternative,” and that the “best option would be to grant an which has one large wetlands and “small areas with a high water table,” would The letter further stated that another possible location for the access way, high water table” and was not “suitable for the construction of a driveway.” of the proposed access way “has several large areas of wetlands and areas of scientist’s letter into the record, which stated, in relevant part, that the location subsequent public hearing that month, t he board chair read the wetlands from a certified wetlands scientist who had also inspected the property. At a I n May, the board visit ed the property and, thereafter, received a letter

decision. and solicit a written “synopsis” from a wetland s scientist before reaching a proposed access way on wetlands. T he board decided to conduct a site visit co - owners and abutter again expressed concern about the impact of the access way and asked the board to approve the application as submitted. T he April, the plaintiffs informed the board that they would not agree to relocate the east of the wetlands. At the next hearing on the application, which occurred in renegotiate the proposed lot lines to permit the relocation of the access way access way. The board continued the hearing and asked the parties to the board and the parties discussed possible alternative locations for the the impact the proposed access way would have on the wetlands. As a result, planning board members, an abutter, and the co - owners raised concerns about planning board heard from the parties to the a pplication. At the initial hearing, During four public hearings between February and June 2017, the

demarcated several wetland s areas. stipulat ion, including the proposed access way. The subdivision map also p. 4 4

to the words used. Id. We interpret legislative or administrative intent from construing statutes, where possible, we asc ribe the plain and ordinary meaning Guillemette, 171 N.H. 565, 568 (2018). Thus, in construing rules, as in construction when interpreting both statutes and regulations. Petition of Trustees of Dartmouth Coll., 171 N.H. at 508. We use the same principles of accordingl y, w e are not bound by the inter pretation of the planning board, regulations de novo, Petition of Sawyer, 170 N.H. 197, 203 (2017), and, planning board’s decision. W e review the interpretation of statutes and which require that we inter pret the statutes and regu lations governing the We now address the plaintiffs ’ statutory and regulation - based claims,

evidence before it. Id. could have reached the same decision as the trial court based upon the We review the trial court’s decision to determine whether a reasonable person appeal only if it is not supported by the evidence or is legally erroneous. Id. Our review is similarly limited. We will reverse a trial court’s decision on

based. Id. whether there is evidence upon which its findings could have reasonably been court determines not whet her it agrees with the planning board’s findings, but balance of probabilities, the board’s decision was unreasonable. Id. The trial The appealing party bears the burden of persuading the trial court that, by the set aside its decision absent unreasonableness or an identified error of law. Id. findings of the planning board as prima facie lawful and reasonable and cannot Hanover, 171 N.H. p. 4 497, 504 (2018). The trial court must treat the factual the trial court’s review is limited. Trustees of Dartmouth Coll. v. Town of before i t, that [the board’s] decision is unreasonable.” RSA 677:15, V. Thus, when the court is persuaded by the balance of probabilities, on the evidence may modify the decision brought up for review when there is an error of law or which provides that the trial court “may reverse or affirm, wholly or partly, or court’s review of a planning board’s deci sion is governed by RSA 677:15 (2016), At the outset, we first explain the applicable standard of review. The trial

court, which upheld the decision. This appeal followed. The plaintiffs appealed the planning board’s decision to the superio r

regulation. considered wetlands to constitute “other natura l resources” under the Regulations (PSR) art. VIII, § B (2002). The decision noted that the board features,... [and] other natural resources.” Plymouth, N.H., Subdivision p. 5 5

resources.” S ee Home Gas Corp. v. Strafford Fuels, Inc., 130 N.H. 74, 82 in the regulation, and therefore fall within the phrase “other natural wetlands are similar in nature to the specifically enumerated natural resources Beauchemin, 161 N.H. 6 p. 5 54, 658 (2011) (quotation omitted), we conclude that objects similar in nature to those enumerated by the specific words,” State v. art. VIII, § B. In construing “other natural resources” as “embrac[ing] only that share similarities with wetlands: brooks, streams, and water bodies. PSR landmarks.” PSR art. VIII, § B. These features include items found in nature specific ally enumerated features are either “natural resources” or “historic enumerated features. PSR art. VIII, § B. This construction implies that the is accompanied by the word “other” and is preceded by the specifically nature”); PSR art. III, § B. However, the term, along with “historic landmarks,” resource s” as “materials (as mineral deposits and waterpower) supplied by International Dictionary 1507 (unabridged ed. 20 02) (defining “natural specifically enumerated items in the regulation. S ee Webster’s Third New W hen viewed in isolation, “natural resources” is broader than the

phrase “other natural resources and historic landmarks.” PSR art. VIII, § B. Article VIII, S ection B does not include the term “wetlands,” it does include the inundated or saturated by surface water or groundwater .. ..”). Although § B; see also RSA 482 - A:2, X (2013) (defining “[w]etlands” as “an area that is that are hydric, including freshwater an d saltwater marshes... .” PSR art. III, The subdivision regulations define “wetlands” as “lands containing soils

interpretation of the regulation is erroneous. We disagree. items enumerated in the regulation. The plaintiffs argue that the trial court’s The trial court agreed, concluding that wetlands are comparable to the other considered wetlands to fall within the phrase “natural resources” in S ection B. other natural resources and historic landmarks.” PSR art. VIII, § B. T he board streams, rock out - croppings, water bodies, stone walls, bound ary markers, preserve and protect the existing features, trees, scenic points, views, brooks, the planning board “may impose requirements upon the subdivider in order to regulations. Under S ection B, captioned “Preservation of Existing Features,” planning board ’s reliance upon Article VIII, S ection B of the subdivision The plaintiffs first argue that the trial court erred in upholding the

itself for further indica tions of legislative or administrative intent. Id. is plain and unambiguous, we need not look beyond the statute or regulation regulation as a whole. Id. at p. 5 5 p. 6 69. When the language of a statute or regulation a nd phrases in isolation, but rather within the context of the statute or absurd or unjust results. Id. at 568 - 69. Moreover, we do not consider words statute or regulation together to effectuate its overall purposes and to avoid administrative agency did not see fit to include. Id. We construe all parts of a administrative agency might have said or add language that the legislature or the statute or rule as written and will not consider what the legislature or 6

City of Laconia, 1 p. 6 68 N.H. 52, 55 (2015). To the contrary, we have held tha t, and ordinary mea ning of other terms within the regulation. See Dolbeare v. do not expressly appear in a regulation when the criteria fall within the plain We have never held that a planning board cannot act upon criteria that

disagree. decision on a term that does not expressly appear in the regulation. We the plaintiffs argue that the planning board was not permitted to base its applicant that wetlands would be a factor considered by the board. In essence, the regulation, the plaintiffs contend it provide s no notice to a subdivision identified in the regulation. Because “wetlands” does not express ly appear in rulemaking, by denying the application based upon a criterion not expressly that does not exist,” and therefore engaged in impermissible ad hoc T he plaintiffs next argue that the planning board “effectively wrote a rule

as the plaintiffs maintain. planning board with unbridled discretion to deny an application on any basis, “to preserve and protect” wetlands. Thus, the regulation does not provide the states that the board may impose “req uirements” on a subdivision application deny an application based upon its perceived impact on wetlands; rather, it board. Article VIII, Section B does not permit the board to unconditionally the plain t iff s ’ argument, the regulation confers only limited authority upon the items similar in nature, which, we conclude, includes wetlands. C ontrary to enumerated items in the regulation limit the scope of “natural resources” to be disturbed by a pro posed development. However, as discussed above, the deems fit” whenever the board identifies any kind of “existing feature” that may it authorizes the planning board to deny an application “for any reason [it] T he plaintiffs, however, assert that Article VIII, Section B is so broad that

inclusion of wetlands as a “[s]ignificant natural feature.” “natural resources” as including wetlands is consistent with the regulations’ scenic views, parks, [and] public open spaces”). Thus, our interpretation of PSR art. VI, § M (12) (naming “woods, wetl ands, streams, ponds, ledges, mines, points, views, brooks, streams, rock out - croppings, [and] water bodies”) with in Article VIII, S ection B. Compare PSR art. VIII, § B (naming “trees, scenic to wetlands, Article VI, S ection M identifies items similar to the items identified plats to show “[s]ignificant natural features such as. .. wetlands”). In addition “[s]ignificant natural features.” PSR art. VI, § M(12) (requiring final subdivision includes “w etlands” under a category similar to “natural resources”: and regulatory scheme and not in isolation.”). A rticle VI, S ection M (12) (“[W]e interpret statutes and regulations in the context of the overall statutory regulations. See Appeal of Old Dutch Mustard Co., 1 p. 6 66 N.H. 501, 506 (2014) Our conclusion is supported by another provision of the subdivision

character of its neighbors”). (198 p. 7 7) (explaining that a statute’s broader term “takes on the more specialized 7

preempts local regulation is a question of law, which we review de novo. Id. a matter of statutory interpretati on and construction, whether a s tate statute when it frustrates the statute’s purpose. Id. Because preemption is essentially ordinance does not expressly conflict with a s tate statute, it will be preempted s tate statute prohibits or vice versa. Id. Moreover, even when a l ocal conflict exists when a municipal ordinance or r egulation permits that which a preempts local law when there is an actual conflict between the two. Id. A legislative intent to supersede local regulation. Id. State law also impliedly when the comprehensiveness and detail of the State statutory scheme evinces plaintiffs’ argument is based upon implied preemption, which may be found N.H. p. 7 745, 7 5 6 (2015). Preemption may be express or implied. Id. Here, the repugnant to, or inconsistent with, s tate law. Forster v. Town of Henniker, 167 doctrine flows from the principle that municipal legislation is invalid if it is s tate law preempts municipalities from regulating wetlands. The preemption We now consider the plaintiffs’ preemption argument which asserts that

Derry Sr. Development, LLC v. Town of Derry, 15 p. 7 7 N.H. 441, 447 - 48 (2008). pertaining to we tlands pursuant to the relevant enabling legislation. See, e.g., may regulate wetlands without first enacting an ordinance or regulation suggest that, outside the limited application of Article VIII, Section B, the Town does not contain the term “wetlands.” This conclusion, however, does not municipality from regulating wetlands merely because the applicable regulation municipal regulation, the statute contains no language that prohibits a Although the statute defines the word “wetlands” when it appears in a

as prescribed in rules adopted under RSA [chapter] 482 - A. wetlands for purposes of such regulations and ordinances shall be given the meaning in RSA 482 - A:2, X and the delineation of ordinances adopted pursuant to this chapter, such term shall be W herever the term “wetlands”... is used in regulations and

6 p. 7 74:55 provides: explicitly identified in the applicable regulation. Again, w e disagree. RSA authority to regulate wetlands, RSA 674:55 (2016) requires “wetlands” to be T he plaintiffs further contend that, in order for a municipality to have the

could be considered by the board. See PSR art. VIII, § B, art. VI, § M(12). the regulations, we conclude that the regulation provide s notice that wetlands inclusion of wetlands as a “significant natural resource” in another section of given the nature of the specific terms within the regulation and the express within the general term. See Beauchemin, 161 N.H. at 65 p. 8 8. Furthermore, regulation, but similar in nature to the specifically - enumerated ones, may fall by specific terms, then specific terms not expressly stated in the statute or pursuant to the principle of ejusdem generis, when a general term is preceded 8

(allowing planning boards to adopt regulations to “[r]equire the proper over subdivisions and the placement of roads therein. See RSA 674:3 6, I I (c) relocation of the access way, pursuant to the municipality’s statutory authority decision to condition its approval of the subdivision application upon the To be clear, the municipal action at issue here is the planning board’s

authority. See RSA 674:35, I - II. subdivision application in accordan ce with the municipality’s statutory also consider the impact to wetlands when determining whether to app rove a However, we disagree that this provision implies that a municipality cannot decision is contrary to the municipality’s position. See RSA 4 p. 8 8 2 - A:11, III(a). ultimately decides whether to approve or deny the application, even if that notice. We agree with the plaintiffs that, pursuant to the statute, DES report” f rom the municipality or until 40 days from the date of filing of the permit application until it “receive [s] and acknowledge[s] receipt of a written received by it pursuant to RSA 482 - A:3,” DES cannot render a decision on a a municipal body that the municipality “intends to investigate a ny notice RSA 482 - A:11, I II (a) states that, upon receiving written notification from

regulation of wetlands to those provisions. We disagree. involvement in the se procedures, RSA chapter 4 p. 8 82 - A limits a municipality’s I(a) - (b), II (2013). T he y argue that, by specifically setting forth a municipality’s designation process. See RSA 482 - A:11, III(a) (Supp. 2018); RSA 482 - A:15, reference municipalities ’ involvement in the wetlands permitting and Nevertheless, the plaintiffs point to provisions of RSA chapter 482 - A that

regulation, serves, rather than frustrates, the purpose of RSA chapter 4 p. 8 82 - A. Article VIII, S e ction B, and the planning board’s action pursuant to that adopt an alternative access way location to protect wetlands. W e conclude that record demonstrates that the planning bo ard requested that the plaintiffs existing natural resources, which, we have concluded, includes wetlands. The impose requirements on an application “in order to protect and preserve” RSA 482 - A:1 (2013). Article VIII, S ection B allows the planning board to waters and its wetlands... from despoliation and unregulated alteration.” of this state to protect and preserve its submerged lands under tidal and fresh & Supp. 2018). T he legislature “found [it] to be for the public good and welfare through a comprehensive permit ting process. See RSA 482 - A:3, :6, :11 (2013 regulate excavation, removal, fill, dredge, or construction in or on wetlands In enacting RSA chapter 482 - A, the legislature gave DES the authority to

of wetlands by D ES. See RSA ch. 4 p. 8 82 - A (2013 & Supp. 2018). We disagree. purpose of,” the c omprehensive regulatory scheme that governs the regulation interpretation of Article VIII, S e ction B “is contrary to, and frustrates the 158 N.H. 164, 173 - 74 (2008). Instead, the y argue that the plan ning board’s VIII, S ection B and a s tate statute. Cf. Lakeside Lodge v. Town of New London, The plaintiffs do not argue that an actual conflict exists between A rticle p. 9 9

Accordingly, based upon the provi sions cited by the plaintiffs, we conclude that determining whether to impose conditions upon a subdivision application. legislative intent to preempt municipalities from considering wetlands when The plaintiffs identify no other statutory provision that demonstrates a

authority to regulate wetlands in any manner, as the plaintiffs suggest. designated as “prime.” Nothing in this provision implies that DES has the sole absolve DES of its responsibilities with respect to wetlands that are not paragraph, RSA 482 - A:11, IV(a) simply clarifies that the statute does not prime wetlands. See RSA 482 - A:11, IV(a). Read in the context of the entire details the strict procedures DES must follow when granting a permit over mapped and designated.” RSA 482 - A:11, IV(a). This paragraph, however, [DES] of its statutory obligations under this chapter to protect wetlands not so This provision states: “T his paragraph shall not be construed so as to relieve “reaffirms the State’s authority over wetlands” — RSA 482 - A:11, IV(a) (2013). The plaintiffs identify a nother statutory provision that they argue

approval process. to preempt a municipality from considering wetlands in its subdivision that these two provisions in RSA chapter 482 - A do not demonstr ate an intent applying regulations relating to wetlands generally. Accordingly, we conclude however, expressly or implicitly prohibit a municipality from enacting and procedures for designating prime wetland s that differ from DES’s. I t does not, prime wetlands, this provision may prohibit a municipality from enacting narrow — by requiring a municipality to follow DES’s rules when designating preempts a municipality from enacting its own regulations, this preemption is enacting any r egulations relating to wetlands. To the extent that this provision designating prime wetlands, the statute prohibits the municipality from because the statute requires a municipality to follow DES’s regulations when designate prime wetlands. RSA 482 - A:15, I to I - b. T he plaintiffs contend that, The statute provides procedures the municipality must follow if it chooses to prime wetlands lying within its boundaries,” which it may then submit to DES. and II allow a municipality to “undertake to designate, map, and document We reach a similar con clusion as to RSA 482 - A:15. RSA 482 - A:15, I (a)

RSA 676:35, I, and :36. planning board’s authority to regulat e the development of subdivisions under subdivision approval under RSA chapter 674 — does not, by itself, preempt the wetlands permit — a procedure completely separate from municipal III(a) gives a municipality the opportunity to investigate and comment on a accommo date existing and prospective traffic”). The fact that RSA 482 - A:11, regulations to “[r]equire suitably located streets of sufficient width to municipality”); see also RSA 674:36, II(e) (allowing planning boards to adopt other existing or planned streets or with features of the official map of the arrangement and coordination of streets within subdivisi ons in relation to p. 10 10

subsequent denial of the application — specifically, its concern about the bas i s for its decision to impose the condition to relocate the access way and its and its members’ comments during the public he arings, expressly explain the U nlike in Dartmouth College, the board’s written decision in this case,

concern. See id. considered a particular piece of evidence in the record that would support that particular concern — not whether the record demonstrated that the board supported the trial court’s conclusion that the board based its decision on a any express findings or reasoning in the board’s written decision, the record Thus, our dec ision in Dartmouth College focused on whether, in the absence of rejected the application based upon this “particular concern.” Id. at 505 - 0 6. board’s deliberations, did not support the trial court’s finding that the board was unreasonable because the record, which included a transcript of the abutting homes.’” Id. at 503. W e determined that the trial court’s conclusion building “‘ would block an unreasonable amount of sunlight from reaching board could have based its decision upon a finding that the plaintiff’s proposed 502. In upholding the board’s decision, t he tri al court concluded that the forth only the regulations upon which it relied in reaching its decision. Id. at application for site plan approv al by issuing a conclusory decision that set In Dartmouth College, t he planning board denied the college’s

505 - 08. This argument mischaracterizes our decision in Dartmouth College. when reaching their decision. See Trustees of Dartmouth Coll., 171 N.H. at demonstrate s that board members did not, in fact, rely upon that evidence evidence in the record to uphold a planning board’s decision when the record our decision in Dartmouth College, claim that a trial court may not rely upon support s the board’s findings. See i d. Nevertheless, t he plaintiffs, relying upon limited to determining whether the record contains evid ence that reasonably v. Town of Thornton, 168 N.H. 715, 720 (2016). Thus, a trial court’s task is evidence upon which the findings could be reasonably based. CBDA Dev., LLC it agrees with the planning board ’s findings, but to determine whether there is We have held that t he superior court’s review is not to determine whether

manner” on the letter. demonstrating that, in its deliberations or otherwise, the Board relied in any issue.” The plaintiffs contend, however, that “there is nothing in the record reasonably conclude [the proposed access way] would harm the wetlands at trial court determined that, “[o]n the basis of the [letter] alone, the Board could relied upon the w etlands scientist’s l etter to uphold the board’s decision. The Next, we address the plaintiffs’ argument that the t r ial court improperly

wetlands here. the planning board was not preempted from imposing a condition to protect p. 11 11

her personal observations of the property — that the proposed location for the evidence included the opinion of a certified wetlands scientist — based upon traverse some portion of the wetlands on the property. Furthermore, the Coll., 171 N.H. at 504. It is undisputed that the proposed access way would as the trial court based upon the evidence before it. Trustees of Dartmouth determine whether a reasonable person could have reached the same decision On appeal, our review of a trial court’s decision is limited — we

“woods road,” which would have little impact on wetlands. and (2) the settlement stipulation limited the use of the access way to that of a such use would affect only a negligible fraction of the wetlands on the property; use of the access way “would likely never affect wetlands,” and, even if it did, board should have considered evidence that: (1) the nat ure of the anticipated as to be virtually non - existent.” More s pecifically, the plaintiffs assert that the way] ’s potential impact upon the overall wetlands on the property was so small “uncontroverted evidence” before the board “was that the [proposed access board’s decision because the decision itself was unreasonable, given that the The plaintiffs next argue that the trial court erred in upholding the

board’s decision was not unreasonable. permits). Thus, the trial court’s reliance upon th e letter as support for the of the State administrative code and if the applicant obtained the requisite DES the regulations expressly allowed for such a system if it met the requirements a presumption that a septic sys tem met the municipality’s regulations where 157 N.H. at 44 9 - 50 (concluding th at the receipt of DES permit approval created application meets the regulation’s requirements. Cf. Derry Senior Dev., LLC, applicant’s receipt of a s tate agency’s approval creates a presumption that the consideration of the letter unreasonable. This is not a case whe re an access way, and we fail to see why such evidence would render the trial court’s conclusion that DES would have issued a wetlands permit for the proposed identify any evidence submitted to the planning board that supports their bald relying upon this evidence for such a reason. Moreover, t he plaintiffs do not authority, nor are we aware of any, that would prohibit the trial court from the wetlands if the board approved the ap plication. The plaintiffs cite no would have approved a permit allowing the proposed access way to cross over access or driveway” — did not contradict the “uncontested evidence” that DES not approve a wetlands cross ing when there is an alternate loc ation for an was unreasonable because one of the author’s conclusions — that DES “will The plaintiffs further argue that the trial court’s reliance on the letter

the board’s decision. relevant to the b oard’s stated concern, to conclude that the evidence supports not unreasonable for the trial court to rely upon this evidence, which was Given the trial court’s limited review, see CBDA Dev., 168 N.H. at 720, it was record — including the wetlands scientist’s letter — supports this concern. proposed access way’s impact on the property’s wetlands. E vidence in the p. 12 12

plaintiffs fail ed to demonstrate that the lack of notice seriously impaired the ir render a decision on the application. We agree with the trial court that t he hear any comment from members of the public on the application and did not briefly expressed their opinions on the matter, the board did not request or board had proposed to the parties at the prior hearings. While board members engaged in a n informal discu ssion relating to the access way alternatives the The transcript of the June 1 hearing reveals that the board members

application.” impair [the plaintiffs’] participation in the Board’s c onsideration of the notice did not treat the plaintiffs unfairly or unreasonably, nor did it “seriously participation.” RSA 676:4, IV. The trial court found that the board ’s lack of such defects create serious impairment of opportunity for notice and requires “the reversal of a planning board’s actions by judicial action only when “shall not be subjected to strict scrutiny for technical compliance.” The s tatute RSA 676:4, IV provides that judicial review of the planning board’s procedures notify a subdivision applicant of a public hearing on the application. However, of RSA 676:4 (Supp. 2018). RSA 676:4, I(d)(1) requires th e planning board to public hearing on June 1 without providing notice to the plaintiffs, in violation planning board’s decision because the board discussed the application at a Finally, the plaintiffs argue that the trial court should have reversed the

demonstrate that the trial court’s decision was not supported by the evidence. unsupported assertions as to the future use o f the proposed access way fail to evidence and were disputed by the co - owners. Thus, the plaintiffs ’ proposed access way, these representations were not supported by any plaintiff s’ counsel to the board as to the limited nature of the future use of the would be used in the future. Regardless of the representations made by wetlands. Nor do es it necessarily inform a fact finder as to how the access way whether the construction of a “forest route” or “woods road” would affect the could also be constructed,” but t hi s statement fail s to address the question of anticipated use of the access way “is a forest route primarily, but a woods road surveyor who drafted the proposed subdivision map suggesting that the wetlands. We acknowledge that th e record includes a statement from the proposed access way would have no effect, or only a negligible effect, on the plaintiffs identify no evidence that s upports any of their assertions that the over [the proposed access way] shall be in the form of a ‘woods road, ’” t he Although the settlement stipulation provided that the co - owners ’ “access

the trial court’s conclusion. of the property and the testimony of the concerned abutter, reasonably support existed. These fa cts, in addition to the board members’ personal observations other alternatives that would have a less significant impact on the wetlands access way was not appropriate due to the presence of the wetlands, and that p. 13 13

HICKS and HANTZ MARCONI, JJ., concurred.

Estate of King, 149 N.H. 226, 230 (2003). raised in their notice of appeal, but did not brief, are deemed waived. In re board’s denial of the subdivision application. All arguments the plaintiffs Accordingly, we affirm the trial court’ s decision uphold ing the planning

planning board’s decision upon this procedural ground. concerns, we conclude that the trial court reasonably declined to reverse the the opportu nity to present arguments and evidence in response to the board’s board held four public hearings on the application in which the plaintiffs had related to the very concerns discussed by the board on June 1. Given that the the public hearing on June 15, after hearing the plaintiffs’ arguments that were present. Moreover, the board did not render its decision until the end of communicate at the public hearings at which the plaintiffs or their counsel reveal any information or opinions during the June 1 hearing that they did not participation in the proceedings. RSA 676:4, IV. The board members did not