2021-0214, TransFarmations, Inc. v. Town of Amherst

The p laintiff, TransFarmations, Inc. (Trans F armations),

the intervenors, filed no brief. Cronin, Bisson, & Zalinsky, PC, of Manchester (Daniel D. Muller, Jr.), for

on the brief and orally), for the defendant. Cronin, Bisson, & Zalinsky, PC, of Manchester (Christopher B. Dr escher

p laintiff. and John J. Ratigan o n the brief, and Brendan Avery O’Donnell orally), for the Donahue, Tucker & Ciandella, PLLC, of Exeter (Brendan Avery O’Donnell

No. 2021 - 0214 Hillsborough - northern judicial district

THE SUPREME COURT OF NEW HAMPSHIRE

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

The IIHO has since been repealed. 1

study, a consultant is being considered to work jointly with this and based on town and state regulations. For the upcoming traffic objectives. Everything o n site will be well - engineered and designed practices (where there are none currently), and low and net zero Pennichuck Water, lower farm pollutants due to best management feature state approved septic designs, water brought in from [T]he project will be con trolled by regulatory authority. It will

neighborhood and the Town.” Clinton explained: proposed use upon the public health, safety, and general welfare of the to establish that “there will be no significant adverse impacts resulting from the ordinance, including subsection (C)(1)(c). That provision requires the applicant met the CUP criteria contained in Section 3.18(C) of the Town’s zoning Trans F armations ’ representative, Ken Clinton, asserted that the application public hearing on the application was held on December 4, p. 2 2019, at which IIHO for a planned residential development containing 64 residential units. A Trans F armations subsequently submitted a CUP application under the

omitted.) provides bonuses for the innovative uses a nd proposed amenities.” (Quotation what density you are eligible for by right in the underlying zoning district and housing and [planned residential developments]. The ordinance is based upon provides one integrated o rdinance with incentives for affordable housing, senior meeting minutes discussing the IIHO ’s intent, “it was noted that [the IIHO] Town’s zoning ordinance in p. 2 2015. The staff report further explains that in 1 According to the Town Planner’s staff report, the IIHO became part of the

housing and over - 55 housing. and [Integrated] Innovative. . . Housing Ordinance (IIHO),” including workforce many of the desired attributes the Town. . . has articulated in [its] Master Plan features.” It further stated that the “development will be designed to meet 75% of the site preserved as open space with farming and forests as central “Jacobson Farm Agrihood” and explained that “[t]he intention is to have about Jacobson Farm. TransFarmations called the proposed development the proposed development of an approximately 130 - acre property known as the a “Conceptual Meeting” with the Town’s planning board (Board) concerning its contents of documents in the record. In May p. 2 2019, TransFarmations requested The following facts were recited in the trial court’s order or relate the

(CUP). We reverse and remand. TransFarmation s ’ two successive applications for a conditional use permit the planning board for the defenda nt, the Town of Amherst (Town), denying p. 3 3

Dev., LLC v. Town of Thornton, 168 N.H. 715 (2016). Prior to the public (Bolding omitted.) See Fisher v. City of Dover, 120 N.H. 187 (1980); CBDA

holdings. v. Dover and CB DA Development, LLC [] v. Town of Thornton to avoid preclusion of the Planning Board’s review under the Fisher sufficiently different from the first application in the same matter whether the application and plan submitted in the. . . [case] is This hearing will be limited in scope to only the issue of

7, 2020 with the following explicit qualification: December 1 p. 3 3, 2019. A public hearing on the application was noticed for July TransFarmations submitted a revised CUP application under the IIHO on

to the superior co urt. See RSA 677:15 (2016). neighborhood and the Town of Amherst.” TransFarmations appealed the denial proposed use upon the public health, safety, and general welfare of the p. 3 3.18 C.1.c. that there would be no significant adverse impact resulting from the denial was that “[t]he applicant did not meet the[] burden of proof for Section The Board issued its decision on December 5. The reason given for

reapply for a CUP with more information.” had not voted due to his position as Board chair, stated that “the applicant can Amherst - specific data.” After the vote was taken, member Dell Orfano, who drainage, runoff, grazing, traffic volume, financial viability, and a lack of Houpis voiced concerns about “the pitch of the proposed road, increased “based on his previous explanation.” In addition, non - vo ting, alternate member stated that he “side[d] with” Rosenblatt, and Hart voted to deny the application section p. 3 3.18(C)(1)(c) “with regard to lack of adverse impact.” Member Harris ordinance under which the application is proposed,” and by failing to satisfy 3.18(C)(1)(b), which requires the proposal to meet “the purposes of the burden of proof in this case,” specifically by failing to satisfy section Member Rosenblatt stated that he did not “believe the applicant sustained the how there is a benefit to the town to deserve the requested [density] bonuses.” reasons. Member Coogan “stated that he doesn’t understand the project and The Board members voting to deny the a pplication gave the following

complete.” Ultimately, the Board voted, four to two, to deny the application. “concerns regarding [section p. 3 3.18(C)(1)(c)] due to the traffic study not yet being the application to a future date, with member Hart stating that he had whom mentioned concerns about traffic. The Board discussed whether to table The Board then heard comments from members of the public, several of

affect traffic singularly and together. order to get joi nt data that can be extrapolated to show how each proposal and another current proposed development in town, in p. 4 4

concluded that “t he B oard acted reasonably and lawfully in reaching [that] differences [between the first and second application s] existed.” The court also members discussed, in detail, their reasons for concluding that no material provided the reason for the July 20 decision on the record because “the Board different from the first. The trial court concluded that the Board adequately Board acted unreasonably because the second CUP application was materially that the decision failed to adequately state the ground for denial and that the In its challenge to the July 2020 decision, TransFarmations argued both

upon the record.” notice of denial, . . . the Board adequately stated its ground for disapproval record of the Board’s minutes . . . [is] read in conjunction with the B oard’s not quite as clear as one might hope,” but concluded that when the “entire 676: p. 4 4, I(h) (2016). The trial court “recognize[d] that the Board’s minutes are shall be adequately stated upon the records of the planning board.” RSA application submitted to the planning board, the ground for such disapproval that it violated RSA 676:4, I(h), which provides: “In case of disapproval of any Trans F armatio ns challenged the December 2019 decision on the ground

superior court. The trial court consolidated the two appeals. decision issued on July 27, and TransFarmations appealed th e decision to the the revised application did not materially differ from the first. Notice of th at Following its discussion, the Board voted, again splitting four to two, that

rejected.” application “address[ing] the issues that caused the first application to be “relevant substantive changes and material differences” in the revised even with the additional supplied data.” Board member Houpis faile d to see “see that the concerns voiced the last time were addressed in this application, did not find the applications to be sufficiently different, stating that he did not or the amount of the site proposed to be disturbed.” Board member Brew also TransFarmations had not addressed “the total number of bedrooms proposed number of residents would occupy the units. Board member Dokmo noted that were not materially different because it appeared that relatively the same addressed. Board member Coogan expressed his belief that the applications and that the Board’s concerns about traffic and safety had not been sufficiently that the two applications were not materially different with respect to density concern about traffic, among other things. Board m ember Stoughton opined At the public hearing, several members of the public voiced continued

ap pendices. submit ted a p. 4 43 - page traffic study containing an additional 278 pages of previous application that the Board had denied. In addition, TransFarmations were “multiple material changes” in the revised application as compared to the hearing, TransFarmations’ attorney asserted in a letter to the Board that there p. 5 5

for a use that materially differs in nature and degree from its merits of the application has not occurred or the application is not When a material change of circumstances affecting the

zoning board of adjustment: Fisher v. City of Dover, we held, with respect to a variance application to a N.H. at 191); see CBDA Dev., LLC, 168 N.H. at 72 3. In the seminal case of N. H. v. City of Somersworth, 162 N.H. p. 5 553, 556 (2011) (quoting Fisher, 120 of circumstances affecting the merits of the application. ’” Brandt Dev. Co. of application, may not review subsequent applications absent a ‘ material change “It is well settled that a [planning] board, having rejected one [land use]

remaining arguments. application did not materially differ from the first, we need not address its the trial court erred in affirming the Board’s decision that th e second CUP application moot. Accordingly, because we agree with TransFarmations that corresponding CUP application, which would effectively render the other CUP court’s affirmance of either decis ion, TransFarmations would proceed on the argument, however, its counsel indicated that if this court reversed the trial grounds in affirming both the December 2019 and July 2020 decisions. At oral TransFarmations argues that t he trial court erred on a number of

based upon the evidence before it.” Id. at p. 5 582. reasonable person could have reached the same decision as the trial court erroneous.” Id. “We review the trial court ’ s decision to determine whether a decision on appeal only if it is not supported by the evidence or is legally This court’s review is similarly limited. Id. “We will reverse a trial court ’ s

findings could have reasonably been based.” Id. planning board’ s findings, but whether there is evidence upon which its unreasonable.” Id. “The trial court determines not whether it agrees with the that, by the balance of probabilities, the board ’ s decision was law.” Id. “The appealing party bears the burden of persuading the trial court cannot set aside its decision absent unreasonableness or an identified error of factual findings of the planning board as prima facie lawful and reasonable and The trial court’ s review is limited. Girard, 172 N.H. at p. 5 581. It “must treat the evid ence before it, that [the board’ s] decision is unreasonable.” RSA 677:15, V. of law or when the court is persuaded by the balance of probabilities, on the partly, or may modify the decision brought up for review when there is an error That statute provides that the trial court “may reverse or affirm, wholly or 677:15. Girard v. Town of Plymouth, 172 N.H. 576, 581 (2019); R SA 677:15. The trial cou rt’ s review of a planning board’ s decision is governed by RSA

followed. TransFarmations unsuccessfully moved for reconsideration, and this appeal decision.” Accordingly, the court affirmed b oth of the Board’s decisions. p. 6 6

not preclude consideration of a subsequent application — explicitly or invitation is not required. As we said in CBDA Development, LLC, “Fisher does assertion that such statements are, in fact, standard. Moreover, an express standard after any kind of a denial,” here the Town cites nothing to support its any extent upon whether such a statement from a planning board chair “is the Town contends, that the meaning of Dell Orfano’s statement depends to Applicant of their rights and was not a ‘Board Invitation.’” Even assuming, as invitation,” but r ather, “is standard after any kind of a denial advising the Orfano’s statement. It contends that Dell Orfano’s statement “was not a direct The Town disagrees with TransFarmations’ characterization of Dell

Hill - Grant Living Tr ust, 159 N.H. at 53 p. 6 6. modified to be materially differe nt from its predecessor, thus satisfying Fisher.” application modified to meet its concerns, it would find an application so logical to presume that if the [board] invites submission of a subsequent Grant Living Trust v. Kearsarge Lighting Precinct, 159 N.H. 529 (2009), “it is different.” Appeal of Allen, 170 N.H. 754, 762 (2018). As we explained in Hill additional evidence that a subsequent application so modified is materially to submit a modified application to meet an agency’s concerns . . . acts as traffic study.” Our post - Fisher cases recognize that “[e]vidence of an invitation “expressly invited a revised application with more information, i.e., a completed the Board requested.” It contends that Dell Orfano, the Board’s chair, submitted that application “at the Board’s invitation and with the information Board’s decision not to accept the second application because TransFarmations TransFarmations contends that the trial court erred in affirming the

differs in nature and degree fro m its predecessor.” Id. (quotation omitted). bears the burden of demonstrating that a subsequent application materially CBDA Dev., LLC, 1 p. 6 68 N.H. at 724. “[A]n applicant before a planning board and “[t]his determination must be made, in the first instance, by the Board,” at the time of the prior denial,” Fisher, 120 N.H. at 190 - 91 (quotation omitted), of fact which necessitates a consideration of the circumstances which existed “The determination of whet her changed circumstances exist is a question

in the planning board context.” CBDA Dev., LLC, 1 p. 6 68 N.H. at 723. held “that the subsequent application doctrine set forth in Fisher [also] applies Fisher, 120 N.H. at 188, 190. Subsequently, in CBDA Dev elopment, LLC, we

pl an. would be placed on property owners seeking to uphold the zoning of the zoning plan would be threatened, and an undue burden finality to proceedings before the board of adjustment, the integrity merit s of the petition. If it were otherwise, there would be no predecessor, the board of adjustment may not lawfully reach the p. 7 7

identified the incompl ete traffic study as an impediment to the Board’s review. Town of Amherst.” In reviewing the initial application, a Board member the public health, safety, and general welfare of the neighborhood and the would be no significant adverse impact resulting from the proposed use upon applicant did not meet the[] burden of proof for Section 3.18 C.1.c. that there traffic.” Nevertheless, the articulated reason for the denial was that “[t]he TransFarmations’ first application was due, in large part, to concerns about In the instant case, the trial court fou nd that “the Board’s denial of

Campground Regulation and State statutes.” Id. at p. 7 725 - 26 (quotation omitted). greater amount of permanency than what is intended in the Thornton still allo wed an overwhelming majority of the campsites to be occupied “with a (quotation omitted). Specifically, CBDA’s subsequent campground application the “two basic reasons” that the board noted for its denial. Id. at 718 CBDA’s subsequent application was not significantly modified to address one of meaningfully resolve the board’s initial concerns.” Id. a t 725. However, must be satisfied that the subsequent application has been modified so as to “before accepting a subsequent application under the Fisher doctrine, a board The Town relies upon o ur statement in CBDA Development, LLC that

different.” justify the Board’s conclusion that the revised application was not materially failure to resolve the Board’s concerns about traffic is enough, on its own, to concerns about traffic.” In turn, it defends the court’s finding “that Petitioner’s traffic study did not address or alleviate the Board’s previously a rticulated neighborhood” and that “a reasonable person could have concluded that the conclusion that the project would not have an adverse impact on traffic in the that “the Board considered the traffic study but did not agree with the expert’s safety.” In other words, the Town’s argument defends the trial court’s findings because “the traffic report confirmed [the Board’s] fears relative to traffic and “the Board need not [have] move [d] forward” with the revised application, The Town contends, however, that even with the completed traffic study,

i.e., a completed traffic study.” that the Board “expressly invited a revised application with more information, application was a traffic study. Accordingly, we agree with TransFarmations “information” mentioned by any voting Board member as missing from the first “reapply. . . with more information.” (Emphasis added). The only characterization of the statement. Dell Orfano invited TransFarmations to directive to. . . provide a traffic study.” Again, we disagree with the Town’s “mention [s] any requirement for a traffic study” nor “contains. . . [any] Nevertheless, the Town argues that Dell Orfano’s statement neither

p. 7 724. Therefore, we reject the Town’s argument. board’s concerns about the initial application.” CBDA Dev., LLC, 16 p. 8 8 N.H. at implicitly invited by a . . . board — which h as been modified to ad dress the 8

and we a ffirmed. Id. We concluded that “the submission of a new variance judgment to the defendant on the ground that the taking claim was premature, condemnation by regulatory taking. Id. The trial court granted summary N.H. at 531. The plaintiff then brought an action alleging inverse structure more than 900 feet above sea level.” Hill - Grant Living Tr ust, 159 a variance from “a zoning ordinance that prohibit [ed] the building of any Similarly, in Hill - Grant Living Trust, the plaintiff sought, and was denied,

effort to meet the town’ s concerns.” Id. at 566. f or a variance, but, at the town’ s invitation, submitted a new proposa l in an Dover, the plaintiff did not merely resubmit substantially the same application at 566. On those facts, we concluded that “[u] nlike the defendant in Fisher v. on the l ot, thereby addressing the [zoning board of adjus tment ’ s] concern.’” Id. house and/or a house that did not require filling wetlands could not be built application, stating, ‘[T]he applicant has provided no evidence that a smaller the trial court, “the town essentially inv ited the plaintiff to file a new variance of Rye, 147 N.H. 55 p. 8 8, 564 – 65 (2002). In addition, in its pleadings submitted to particular proposed structure’s impact on the wetlands.” Morgenstern v. Town denied the plaintiff’ s request for a variance because of concerns about the throughout the litigation in th at case, the town ha d “taken the positi on that it In o ur first post - Fisher case address ing successive reapplication, we noted that deficiencies in the initial application and the terms of the invitation to reapply. constitutes a “material difference” in such cases turns upon the identified A review of our successive application cases demonstrates that what

pro cess based on input from the board. applicable CUP criteria, either as submitted or as modified during the planning with the additional information may be evaluated for satisfaction of the is therefore required”). It is during that “full consideration” that the application material change of circumstances has occurred and whether full consideration 557 (noting that the board must determine “as a threshold matter whether a the merits of the revised application. See Brandt Dev. Co. of N.H., 162 N.H. at different from the former application is a ste p preliminary to consideration of The determination whether a successive application is materially

modifications would be required to resolve its “concerns” about traffic. the ac tual effect of the proposed use on traffic before determining whether impact on traffic, but rather, that it required more information to understand the Board did not find that, in fact, the project would have a significant adverse application other tha n the lack of a completed traffic study. In other words, decision nor its invitation to reapply identified any deficiency in the original proof with respect to Section 3.1 p. 8 8(C)(1)(c), neither the Board’s December 201 p. 9 9 have led the Board to decide that TransFarmations had not met its burden of completed traffic study. Although unresolved “concerns” about traffic may “more information,” which, as we conclude above, meant supplying a The Board chair’s express statement invited TransFarmations to reapply with 9

omitted). substantially the same application” under Fisher. Id. at 566 (quotation subsequent application supplemented with that information was “not lacking in the first application as identifying a deficiency and concluded that a (emphase s added). Thus, we viewed DES’s comments regarding information submitting supplemental information after” the first denial. Id. at 563 applicant “subsequently complied with the requirements of Env – Ws 388 by contain all of the information required by Env – Ws 388.17,” DES noted that the particular, although DES denied the first application because it did “not substantially the same application.” Id. at 566 (quota tion omitted). In comments made by DES in denying the prior application. It was therefore not applicant’s “new application supplemented its prior one in response to was more analogous to Morgenstern than Fisher. Id. We concluded that the to DES, w e disagreed. Id. Instead, we agreed with the applicant that the case without deciding that Fisher’ s reasoning could be extended to” an application applic ation was contrary to Fisher.” Id. at 565 (quotation omitted). “A ssuming denied application, based on no change in events, [DES’s] approval of the the extent that the second application was “a resubmission of the already On appeal, on e of the parties challenging that approval argue d that to

subsequ ent application. Id. at 543. subsequently submitted material. Id. at 542 – 43. DES approved the application, relying on information already on file with DES as well as Town of Nottingham, 153 N.H. at 542. The applicant then submitted a second denied an application for a large groundwa ter withdrawal permit. Appeal of example, the New Hampshire Department of Environmental Services (DES) prior application. In Appeal of Town of Nottingham, 153 N.H. 53 p. 9 9 (2006), for under Fisher if the new application provides the information missing from the substantially identical to the prior proposed project is materially different in the initial application, we have held that a reapplication propos ing a project doctrine itself: W hen a denial identifies a lack of information as the deficiency the proposed project, changes of that scope are not required by the Fisher Morgenstern and Hill - Grant Living Trust involved or contemplated changes to Living Tr ust, 159 N.H. at 53 7. Although the revisions discussed in resulted in the initial denial. See Morgenstern, 147 N.H. at 566; Hill - Grant Grant Living Trust directly corresponded to the identified deficiencies that The scope of the actual or hypothetical revisions in Morgenstern and Hill -

may grant a [v] ariance,” i d. at 536 (quotations omitted). on the lot, . . . if the applicant resubmits with a certain elevation, the Board specific location,” and that, although “the applicant is asking to build anywhere with a specific location, [the member] co uld see granting a variance on that various zoning board members, including that, “if the applicant came back application would not have been futile,” id. at 538, noting statements by p. 10 10

JJ., concurred. M AC DONALD, C.J., and BASSETT, HANTZ MARCONI, and DONOVAN,

decision and remand. erroneous. Accordingly, we reverse the trial court’s order as to the July 2020 decision concluding otherwise misapplied our Fisher jurisprudence, it is legally Fisher.” Hill - Grant Living Tr ust, 159 N.H. at 536. Because the trial court’s information was “materially different from its predecessor, thus satisfying conclude that TransFarmations’ second application supplying the requested information as the deficiency in the initial application. Accordingly, w e Here, as in Appeal of Town of Nottingham, the Board identified a lack of