2021-0139, George Stergiou & a. v. City of Dover

Stergiou, Jen McCarthy, Brendan Sullivan, and Kirankumar Tamminidi (the C. J.) denying t heir motion to di smiss a petition filed by the petitioners, George (collectively, the develop er), appeal an order of the Superior Court (Nadeau, HICKS, J. The intervenors, Micheline Elias and The Fakhourys, LLC

intervenors. William K. Warren on the brief, and William K. Warren orally), for the Donahue, Tucker & Ciandella, PLLC, of Portsmouth (Justin L. Pasay and

and orally, for the respondent. Joshua M. Wyatt, city a ttorney, of Dover, on the memorandum of law

filed no brief. The L aw Office of Scott E. Hogan, of Lyndeborough, for the petitioners,

No. 2021 - 0139 Strafford

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

decision to stay the proceedings, contending that the court could not stay a which the trial court denied. The abutters moved to reconsider or clarify the The develope r moved to reconsider the decision on the motion to dismiss,

the Board has granted the [develop er] final approval of the Project. the court finds it appropriate to stay the present proceedings until the [develop er’s] satisfaction of the [ p. 2 2020 Approval’s] conditions, that the Board has provided final approval of the plans following A s there has been no suggestion by the parties or the [develop er]

decision appealable under RSA 677:15.” The court further ruled: Ap proval “were conditions precedent and thus the decision was not a final Likewise, the trial court found that the conditions imposed in the p. 2 2020

[ p. 2 2020 Approval], the [2019 Approval] never became final.” appeared to be undisputed that those “conditions were not satisfied prior to the appealable under RSA 677:15.” The court also concluded that because it “were conditions precedent and thus the decision was not a final decision The trial court concluded the conditions imposed in the 2019 Approval

objected. Following a hearing, the trial court denied the motion. 677:15, I. While t he Board took no position on the motion, th e abutters moved to dismiss the petition on the ground that it was untimely under RSA RSA 677:15 ( p. 2 2016). The develop er was allowed to intervene and, thereafter, 677:15, challenging t he 2020 A pproval as unlawful and unreasonable. See On August 27, 2020, t he abutters filed a petition, pursuant to RSA

amended conditions “vary slightly from those set forth in the [ p. 2 2019 Approval].” Signing of P lans” (the 2020 Approval). As characterized by the trial court, the the Site Review Plan subject to specified “Conditions to be Met Prior to the duly - noticed meeting on July 28, 2020, at which it conditionally re - approved 2019 application so that the project could move forward. The Board held a On July 14, 2020, the develop er asked the Board to “r e - approve” the

unforeseen circumstances, the develop er was unable to meet this deadline. the Board with copies of the plan in various formats within 90 days. Due to review r egulations (the Certifica tion Provision) required the develope r to provide T he p. 2 2019 Approval and Chapter 153, Article II, Section 153 - 8 of the City’s site conditionally approved the site plan on April 23, 2019 (the 2019 Approval). use development project in Dover. After a public hearing, the Board 2019, the developer applied t o the Board for permission to construct a mixed The following facts were recited in the trial court’s order. In January

We affirm in part, reverse in part, and remand. by the planning board (the Board) fo r the respondent City of Dover (the City). abutters), challenging a conditional site plan approval granted to the developer p. 3 3

read RSA 676:4, I(i) and RSA 677:15, I, in conjunction to determine whether decisions of the B oard within the meaning of RSA 677:15, I; and ( p. 3 3) declining to conditions subsequent; (2) ruling that the Bo ard approvals a t issue were not B oard approvals at issue were subject to conditions precedent, rather than The developer argu es that the trial court erred in: (1) ruling that the

application. . . . date upon which the board voted to approve or disapprove the petition shall be presented to the court within p. 3 30 days after the which the same is claimed to be illegal or unreasonable. Such unreasonable in whole or in part and specifying the grounds upon a petition, duly verified, setting forth that such decision is illegal or concerning a plat or subdivision may present to the superior court Any persons aggrieved by any decision of the planning board

pertinent part: superior court.” Id. The applicable statute, RSA 677:15, I, provides, in compliance is a necessary prerequisite to establishing jurisdiction in the Gr ou p v. Town of Derry, 154 N.H. 610, 61 p. 3 3 (2006). “This is because statutory appeals of planning board decisions to the superior court.” Prop. Portfolio Hampshire law requires strict compliance with statutory time requirements for The developer moved to dismiss the abutters’ petition as untimely. “New

decision is not supported by the evidence or is legally erroneous.” Id. such defens e. We will uphold a trial court’ s ruling in such a case unless its dismissed because the trial court lacks jurisdiction to hear the claim. . . is one to claim relief.” Id. (quotation omitted). “An asserti on that a claim should be based on the facts, whether the plaintiff has sufficiently demonstrated his right must look beyond the plaintiff ’ s unsubstantiated allegations and determine, the plaintiff’ s legal claim but, instead, raises certain defenses, the trial court Id. When, h owever, “the motion to dismiss does not challenge t he sufficiency of plaintiff as true and view those facts in the light most favorable to the plaintiff.” this determination, the court would normally accept all facts pleaded by the Town of Plainfield, 160 N.H. 50 p. 3 3, 507 (2010) (quotation omitted). “In making sufficiently establish a basis upon which relief may be granted.” Atwater v. determi ne whether the allegat ions contained in the plaintiff’ s pleadings “Generally, in ruling upon a motion to dismiss, the trial court must

jurisdiction. The developer now appeals that decision. Accordingly, the court dismissed the appeal, without prejudice, for lack of approve, a nd thus supersede, t he [2019 Approval] — are conditions precedent.” conditions imposed by the [2020 Approval] — which was a mere formality to re agreeing that it “lacks jurisdiction over the present appeal because the proceeding over which it lack ed jurisdiction. The court granted that motion, p. 4 4

board ’ s consideration.” Sklar Realty, 125 N.H. at 327. to be final and appealable, or merely “an interim step in the process of the more ac curately, whether the approval the board has granted is intended by it “subsequent,” as our decisions have termed them, or, said alternatively and imposing such conditions, that controls whether they are “precedent” or added). Implicit in this framework is that it is the planning board ’s intent, in precedent to approval and conditions subsequent to approva l.” Id. (emphases Property Portfolio Group, we referred to such conditions as “conditions delay approval.” Prop. Portfolio Gr ou p, 15 p. 4 4 N.H. at 615. Accordingly, in constitute final approval. Conditions subsequent, on the other hand, do not contemplate additional action on the part of the town and, thus, cannot Property Portfolio Group, Sklar Realty “noted that conditions precedent . . . the context of planning board approvals, in Sklar Realty. As described in We first addressed conditions precedent and conditions subsequent, in

Saunders v. Town of Kingston, 160 N.H. 560, 56 p. 4 4 (2010). subsequent constitutes a final decision appealable under RSA 677:15, I.” 1986, 57:1; and (2) “a conditional ap proval imposing only conditions Merrimack, 125 N.H. 321, 327 (1984), superseded, in part, by statute, Laws aggrieved party may appeal under” RSA 677:15, I, Sklar Realty v. Town of “only [a] fi nal approval . . . is a ‘ decision of the planning board ’ from which an triggering appellate rights. This follows from our case law holding that: (1) the trial c ourt’s rulings on the finality of the approvals for purposes of decisions of the Board within the meaning of RSA 677:15, I — both challenge conditions precedent, rather than conditions subsequent, and were not the trial court erred in ruling that the Board approvals at issue were subject to Turning to the developer’s arguments, we note that the first two — that

the issue may require additional factual findings”). to address issue when “the trial court did not rule on the issue” and “resolving arguments on that issue. State v. Steimel, 155 N.H. 1 p. 4 41, 147 (2007) (declining in its motion to dismiss. Acc ordingly, we decline to address the City’s and, by so doing, waived its ability to take the position it subsequently asserted as to whether the developer “consented” to the 2020 “reapproval” procedure therefore, should be disregarded. The trial court made no findings or rulings argument “present[s] factual issues the Trial Court never considered” and, As a preliminary matter, we agree with the developer that the City’s

well as agreement on the re - approval process used.” Planning Board there was agree ment that the 2019 approval [had] expired as reapproved the application in July 2020.” The City asserts that “befor e the the developer “consented to the procedure by which the Planning Board “the trial court correctly denied the [developer’s] motion to dismiss” because the conditions imposed were precedent or subsequent. The City counter s that p. 5 5

2019 Approval. appeal. Rather, the parties ’ disagree ment relates to t he present validity of the file such a petition within that time, and no party contends otherwise on approval. RSA 677:1 p. 5 5, I. The developer repre sents that the abutters failed to to approve” the developer’s site plan in which to file a petition challenging that including the abutters, had “30 days after the date upon which the board voted when issued. Under RSA 677: 15, any persons aggrieved by the 2019 Approval, We now consider the effect of the 2019 Approval, given that it was final

RSA 677:1 p. 5 5, I, or, in other words, final approvals. approval” and that they were not decisions of the Board within the meaning of that the Board approvals at issue were subject to conditions “precedent to developer ’ s first and second questions on appeal: the trial court erred in ruling board’s final decision on this site plan.” This conclusion answers both the conclude that the “Planning Board regarded the . . . [2019 Approval] as the regarding finality than the minutes of the 2020 meeting. Accordingly, we Approval and that the minutes of the 2019 meeting indicate no different intent the 2019 Approval are substantially similar to those imposed in the 2020 Having reviewed the record, we conclude that the conditions imposed in

be a final ap proval. the matter to a future hearing.” Thus, the City con siders the 2020 Approval to final decision on this site plan, meaning the Planning Board did not continue confirm that the Planning Board regarded the 2020 re - approval as the board’s in this case. In its memorandum of law, the City states that “[t]he minutes We now consider the finality and appealability of the approvals at issue

approval is final and appealable when issued. added). Doing so w ill, by definition, inform all interested parties whether the precedent to approval,” Prop. Portfolio Gr ou p, 1 p. 5 54 N.H. at 615 (emphasis final approval,” id., or, in other words, whether it imposes “conditions explicitly identify whether it s approval imposes “conditions necessary to obtain (2016). Implicit in this statutory mandate is the requirement that the board description of all conditions necessary to obtain final approval.” RSA 676:3, I conditions, the board shall include in the written decision a detailed RSA 676:3, I, provides that “[i]f the application is approved with

appeal period.” staff “need certainty about the commencement and expira tion of the 30 - day planning board,’” because land use applicants, planning boards, and municipal decisional law about the 2020 re - approval and whether it was a ‘decision of the are considered final. Indeed, the City in this case asks us to “clarify the when issued, or whether they require further action by the board before they whether their conditional approvals are intended to be final and appealable We acknowledge that planning boards may not always be explicit as to p. 6 6

Certifi cation Provision ’s deadline. Under the Certification Provision, We decline to hold that the 2020 Approval was an extension of the

Provision. “as a matter of law” an extension of the deadline to meet the Certification local law.” Rather, t he developer argues, the 2020 Approval was “effectively,” fashioned as a ‘reapproval, ’” such a “process is not contemplated by State or The developer argues, however, that “regardless of the fact that it was that the abutters’ appeal under RSA p. 6 677:15 was timely. (Quotation omitted.) concedes that the 2020 Approval wa s a “decision of the planning board” and We next consider the significance of the 2020 Approval. The developer

valid. five years. In sum, we conclude that the unappealed 2019 Approval remains Provision in p otential conflict with the provision making the approval valid for deadline to be extended and such a construction would place the Certification particularly when the remainder of the Certification Provision allows the 90 - day we find no indication that expiration of the approval is the intended remedy, mandate. Id. We need not determine a remedy here. C f. id. W e note only that provision itself “does not provide a remedy” for the failure to comply with it s N.H. 219, 229 (2007). Nevertheless, “[t]his does not end the inquiry” where the a command which requires mandatory enforcement.” In re Christopher K., 155 We agree with the C ity that, as a rule of construction, “the word ‘shall’ is

po sition that the “2019 approval expired unsigned.” (Quotation omitted.) requirement was not met with respect to the 2019 approval” and restates its City contends “[t]here is no dispute the mandatory 90 - day certification Review Regulations ch. 153, art. II, § 153 - 8(A) (2020) (emphasis added). The receipt of final site plan approval by the Planning Board.” Dover, N.H. Site development plan for the Planning Board Chair’s signature within 90 days of Development Department an electronic copy and five copies of the final site “The applicant shall submit to the Planning Board and Community T he City notes th e mandatory language of the C ertification Provis ion:

is the operative approval.” (Bolding omitted.) determined [both] that the 2019 approval expired” and that “the 2020 approval The City, on the other hand, argue s that “[t]he trial court correctly

Regulations ch. 153, art. II, § 153 - 9 (A). [when extensions are granted] as provided below.” Dover, N.H. Site Review time constraints, then said approval shall be considered null and void, except the date of said approval. If a building permit has not been issue d within such following provision: “Planning Board approval shall be valid for five years from under the City’s site review regulations. Specifically, the developer relies on the The developer contends that “the Board ’s 2019 Ap proval is still valid” p. 7 7

asked to clarify the law regarding what constitutes an appealable decision of a join in Justice Hicks’s th oughtful opinion. As the opinion notes, the court was M AC DONALD, C.J., and HANTZ MARCONI, J., concurring specially. We

concurred specially; BASSETT, J., c oncurred specially. DONOVAN, J., concurred; M AC DONALD, C.J., and HANTZ MARCONI, J.,

untimely. instructions to dismiss, with prejudice, the abutters’ RSA 6 p. 7 77:15, I, appeal as third appellate argument. We affirm in part, reverse in part, and remand with these conclusions resolve this appeal, we need not address the developer’s and remains in force and that the 2020 Approval is void ab initio. Because In sum, we conclude that the 2019 Approval was not timely appealed

the decision.”). result on mistaken grounds, we may affirm if valid alternative grounds suppor t re R. M., 1 p. 7 72 N.H. 694, 699 (2019) (“When a trial court reaches the correct 67 7:15 appeal from the 2020 Approval did not vest it with jurisdiction. See In affirm, on alternat iv e grounds, the trial court’s decision that the abutter’s RSA is void ab initio and has no legal efficacy” (quotation omitted)). Accordingly, we “municipal action in the land use control field taken. . . without legal authority Hghts., 866 A.2d 988, 991 (N.J. Super. Ct. App. Div. 2004) (noting that a ‘ nullity, ’ [were] of no effect” (footnote omitted)); Grasso v. Bor. of Spring Lake defective ‘ approval ’ — along with any ‘ agreed ’ or ‘ approved ’ modifications — being constructive approval of a su bdivision application, the “board’ s subsequent notice of extension with the clerk” resulted, pursuant to statute, in the (holding that where the planning board’s “inaction, and failure to file the formal v. Plan ning Bd. o f Haverhill, 835 N.E.2d 270, 274 (Mass. App. Ct. 2005) Board utilized here, we conclude that the 2020 Approval is a nullity. Cf. Craig found, nor been provided with, legal authority for the “reapproval” process the extension of the Certification Procedure’s deadline. Instead, h aving neither such approval or denial occurred, we decline to treat the 2020 Approval as an Development. Because t here is no argument or evidence before us that any after an initial approval or denial by the Director of Planning and Community Certification Pr ovision authorizes the planning board to grant an extension Dover, N.H., Site Review Regulations c h. 153, Art. II, § 153 - 8 (A). T h e

Planning Board. Board. Any additional extensions can only be granted by the and Community Development can be appealed to the Planning of the applicant. An extension denial by the Director of P lanning one ninety - day extension if circumstances arise beyond the control [t] he Director of Planning and Community Development may grant p. 8 8

as a result of a public hearing, compliance with which i s (1) Minor plan changes whether or not imposed by the board

conditions are: or application may occur in the foregoing manner only when the applicatio n solely for lack of said permits. Final approval of a plat a project, however, a planning board may not refuse to process an conditioned upon the receipt of state or federal permits relating to include a statement notifying the applicant that an approval is compliance wit h the conditions imposed. Such conditions may based upon evidence submitted by the applicant of satisfactory public hearing, upon certification to the board by its designee or application, which approval shall become final without further A planning b oard may grant conditional approval of a plat or

676:4, I(i). That subparagraph provides: Shortly after our decision in Sklar Realty, the legislature enacted RSA

following final approval. to final approval and a “condition subsequent” was a condition to be fulfilled precedent.”). Thus, a “condition precedent” was a condition to be fulfilled prior valid, final approval under the statute, there are no unfulfilled conditions until “any conditions precedent have been found to be fulfilled.” Id. (“For a The court said that there could be no fi nal approval for purposes of appeal wasteful requirement to start all over again.” Sklar Realty, 125 N.H. at 327. “any impediment to approval would require formal disapproval and the objectives. A condition precedent was intended to avoid the situation where noted that both kinds of conditions furthered important, but different, “conditions subsequent” in the context of planning board appeals. The court 327 (19 p. 8 84), first set forth the concepts of “conditions precedent” and As the majority notes, Sklar Realty v. Town of Merrimack, 125 N.H. 321,

area. of that issue may be of some assistance in further clarifying the law in this the issue of the applicability of RSA 676:4, I(i), and we believe that discussion majority does not reach these argu ments. The developer has properly raised decisions. Because the developer prevails on this issue on other grounds, the determining whether the planning board’s approvals were final, appealable role of a statute not addressed by the majority, RSA 676:4, I(i) (2016), in We write separately to address the developer’s arguments regarding the

when the thirty - day period commences. majority synthesizes applicable statutes, as well as our precedent, to clarify municipal staff all requ ire certainty about when an appeal should be filed. The planning board. Land use applicants, interested parties, planning boards, and p. 9 9

solely to approvals subject to condit ions precedent, because it is only approvals shall become final.” Thus, by its plain language, this subparagraph applies The role of RSA 676:4, I(i) is to set forth how a “conditional approval . . .

subject to that condition is not the final, appealable order. order. On the other hand, if it is a condition precedent, then the approval it is a condition subsequent, then the approval is itself the final, appealable condition it is imposing is a condition precedent o r a condition subsequent. If determines at the time it grants an approval subject to a condition w hether the condition precedent or a condition subsequent. The planning board bearing upon whether a condition imposed by the planning board is a We disagree with this analysis. In our view, RSA 676:4, I(i) has no

approval was a final, appealable decision of the planning board. were conditions subsequent. Therefore, the developer concludes, the 201 p. 9 9 board’s 2019 approval fell within the scope of RSA 676:4, I(i)(1) or (2), and thus The developer then argues, inter alia, that the conditions in the planning administrative and thus require a noticed hearing with the planning board.” precedent, i.e., approvals subject to conditions that are not minor or contemplated by RSA 676:4, I(i)(1) - (3), and approvals subject to conditions i.e., final approvals that are subject only to those types of conditions explicitly distinguishes between final approvals subject only to conditions subsequent, In this case, the developer contends that this subpar agraph “clearly

becomes final. approvals, but seeks to minimize potential delays before a board’s decision By its text and structure, RSA 676:4, I(i) ratifies the use of conditional

of the adjourned session were ma de known at the prior hearing. session of a hearing with proper notice if the date, time, and place except that additional notice shall not be required of an adjourned require a hearing, and notice as provided in subparagraph I(d), administrative, or relating to issuance of other approvals shall All conditions not specified within this subparagraph as minor,

state and federal permits. or approvals granted by other boards or agencies, including permits and approvals granted by other boards or agencies (3) Conditions with regard to the applicant’s possession of

board; or which involve no discretionary judgment on the part of the (2) Conditions which are in themselves administrative and

judgment; or administrative and which does not involve discretionary p. 10 10

has become final within the meaning of RSA 677:15, or the Planning of their local government to ascertain when a Planning Board decision appellate review. Abutters would be forced to monitor the inner workings determine when a conditional approval has become final for purposes of parties, except for the applicant or the Planning Board itself, to it would be nearly impossible for most abutters and other interested

developer asserts, then 676:4, I(i)(1) - (3) must be a final, appealable order. If that is not the case, the that every approval t hat imposes a condition that falls within the scope of RSA Finally, the developer makes one further argument as to why it contends

matters. terms, but also advances the orderly and timely disposition of planning board application”). This construction is not only consistent with RSA 67 6:3, I’s plain date upon which the board voted to approve or disapprove the immediate appeal under RSA 677:15, I (appeals must be filed “30 days after the conditions but without such a designation is a final approval and subject to say so. In our view, under the plain meaning of RSA 67 6:3, I, an approval with approval can become final (that is, a condition precedent), then the board must condition it imposes be a condition that must be complied with before the (emphases added). That me ans that if the planning board intends that a detailed description of all conditions necessary to obtain final approval.” Id. application with conditions, “the board shall include in the written decision a (2016). The legislature has mandated that if a planning board approves an decision “which either approves or disapproves” an application. RSA 67 6:3, I point made by the majority. A board is required to issue a final written On this point, we believe it impo rtant to emphasize and elaborate on a

determine how the approval “shall become final.” approval is already final, so there is no need to look to RSA 676:4, I(i) to has not been satisfied. Accordingly, RSA 676:4, I(i) has no role to play — the condition subsequent is itself final and appealable even though the cond ition does not “become final” — it is final. That is, an approval subject to a o nly to a condition subsequent. An approval subject to a condition subsequent Thus, it follows that RSA 676:4, I(i) canno t apply to an approval subject

order for the conditional approval to become final. all cases governed by the subparagraph, some further action must be taken in requ ire a further public hearing before the approval can become fin al. But in satisfactory compliance with the conditions imposed. All other conditions board by its designee or based upon evidence submitted by the applicant of “shall become final” without a further public hearing upon certification to the minor, administrative, or relating to issuance of other app rovals, then approval provides that if the condition imposed is specified in the subparagraph as subject to conditions precedent that later “become final.” The subparagraph p. 11 11

same notice of its final, appealable decision in every case. issue a fi nal, appealable, written decision. Thus, the board will provide the obligation, upon determining that the condition has been satisfied, to vote and condition precedent, the statutory scheme makes clear that it is the board’s every case in which the planning board issues an order of approval with a parties will not know when an approval has become final is unfounded. In Accordingly, the developer’s concern that abutters and other interested

period under RSA 677:15, I, will run from the date of the vote to approve. final written decision will follow after the fu rther public hearing. The appeal evidence of satisfactory compliance with the condition. Otherwise, the vote and vote and final written decision will follow after the certification or submission of be satisfied under RSA 676:4, I(i) without a further public hearing, then the and must issue a written decision. If the condition precedent is one that can condition is satisfied, the planning board must vote to approve the application order to obt ain final approval (that is, a condition precedent), once the case in which a planning board imposes a condition that must be satisfied in Town of Moultonborough, 174 N.H. 103, 106 (2021), we conclude that in any Construing these statutes harmoniously, see Krainewood Shores Ass’n v.

approve or disapprove the application.” (Emp hasis added.) superior court “within 30 days after the date upon which the board voted to person aggrieved by any decision of the planning board may petition the disapproves an app lication . . . .” In addition, RSA 677:15, I, states that any the board “shall issue a final written decision which either approves or We look to the statutory scheme for guidance. RSA 676:3, I, provides that

address the manner in which notice of final approval is provided. obligation of holding a further public hearing in those ca ses, it does not imposed.” RSA 676:4, I(i). Thus, while the statute relieves the board of the applicant of “evidence . . . of satisfactory compliance with the conditions can become final only after “certifi cation to the board” or submission by the final without a further public hearing, RSA 676:4, I(i) provides that approval imposes a condition precedent that, pursuant to RSA 676:4, I(i), can become S econd, in those, presumably, few cases in which a planning board

those cases, the order itself will indeed be the final, appealable order. make clear that any conditions imposed are not conditions precedent. Thus, in conditions as being necessary for final approval. In other words, the order will administrative conditions, the planning board will not desig nate those majority of cases in which a planning board grants approval with only minor or Again, we disagree. First, as a practical matter, it is likely that in the great

noticed compliance hearing with the Pl anning Board in every case. when a decision has become final, likely by requiring an additional, duly Board itself would have to adopt some mechanism to inform abutters p. 12 12

or clarify the statutory scheme. Justice MacDonald and Jus tice Hantz Marconi’s analysis, may wish to revisit interpretation of state statutes, the legislature, now with the benefit of Chief procedures may be required. In addition, because the concurrence involves The special concurrence signals to all stakeholders that review of current

676:4, I(i) shines light on the law in this area. with the Chief Justice and Ju stice Hantz Marconi that this discussion of RSA interpretation of the statutes that may be adopted in a future case. I agree Marconi does not establish binding precedent, but rather presents a possible The interpretation offered by the Chief Justice and Justice Hantz

Johnson, 170 N.H. 470, 490 (2017) (Bassett, J., dissentin g). not been fully briefed increases the possibility that we will err. See Hodges v. advocating for any particular result or outcome.” A ddressing issues that have memorandum of law, the City state d that “[i]n the end, the City is not board, did not file a brief in this court. While the City of Dover did file a challenged in superior court the site plan approval granted by the planning Marconi been fully briefed by the parties on appeal. The petitioners, who Nor has the issue addressed by the Chief Justice and Justice Hantz

decide this case. on other grounds, it is not necessary to construe RSA 676:4, I(i) in order to r aises the issue addressed in the concurrence, given that the developer prevails interpretation of RSA 676:4, I(i) (2016). Although the developer, on appeal, Hantz Marconi’s special concurrence addressing the applicability and however, to explain why I do not join Chief Justice MacDonald and Justice Justice Hantz Marconi, I too join in Justice Hick s’s opinion. I write separately, BASSETT, J., concurring specially. Like Chief Justice MacDonald and