2022-0182 Appeal of James A. Beal & a.

Mary Lou McElwain, Edward Rice, April Weeks, Michael Wierbonics, and Lili Howard, Nancy B. Howard, Elizabeth Jeffe rson, Cate Jones, Robert McElwain, Julia Gindele, Linda Griebsch, Catherine L. Harris, Roy W. Helsel, John E. Ilara Donarum, Joseph R. Famularo, Jr., Phili p pe Favet, Charlotte Gindele, Cataldo, Ra mona Charland, Lucinda Clark e, Fintan Connell, Marjorie P. Crean, Brighton, Lenore Weiss Bronson, Nancy Brown, William R. Castle, Lawrence J. HICKS, J. The petitioners, James A. Beal, Mary Beth Brady, Mark

brief. Trevor P. McCourt, of Portsmouth, for the City of Portsmouth, filed no

for the respondent. Ramsdell and Brian J. Bouchard on the brief, and Brian J. Bouchard orally), Sheehan Phinney Bass & Green, P.A., of Manchester (Michael D.

petitioner s. Duncan J. MacCallum, of Portsmouth, on the brief and orally, for the

No. 2022 - 0182 Housing Appeals Board

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

granted the appeal, effectively reversing the P lanning B oard’s site plan and then filed an appeal with the ZBA, raising nine claims of error. The ZBA who describe themselves as “a group of abutters and other co ncerned citizens,” Planning Board granted the approvals on April 15, p. 2 2021, and the petitioners, conditional use permit (CUP) for shared parking, and a wetland CUP. The Iron Horse sought a site review permit, lot line revision permit,

developable upland area. constraints on the applicant’s ability to locate buildings within the the Deer Street pump station. These unique conditions pu t sewer pipe that conveys wastewater flow for the City’s west end to 4W district; and a p. 2 25 - foot municipal sewer easement for a large the adjacent railroad where none is typically required in the CD streets located across the railroad; 15 - foot side yard setback due to corridors required by zoning that extend from perpendicular City include close proximity to the North Mill Pond; no build view The proposed development area has unique site conditions that

impervious surface.” The application further observed that: Pond tha n is the case in the site’s current condition and by “reducing overall wetland buffer by moving buildings and parking further away from North Mill stated that the project would constitute an “overall improvement” to the proposed buildings would encroach on the wetland buffer, but t he application wetlan d buffer and replant with a majority of native plants. Portions of the does not exist at the site, and to remove invasive species from the 100 - foot Iron Horse proposed to provide stormwater treatment, which currently

homeless encampments, and crime.” . . . [and] has long been an attractive nuisance with a history of debris, invasive species,” and that a portion of the site had “fallen into disrepair wetland buffer had been previously disturbed and was “overgrown with safety hazard.” It further stated that nearly the entirety of the 100 - foot tidal industrial use” and that remaining “derelict railroad str uctures. . . pose a Planning Board explained that the “site has [a] history of railroad and apartment buildings with a total of 15 p. 2 2 dwelling units. The application to the redevelopment of the site. Iron Horse proposed to construct three multi - family various approvals f rom the Planning Board in connection with its proposed property located at 105 Bartlett St reet in Portsmouth. In 2021, it requested contents of d ocuments in the certified record before us. Iron Horse owns real The following facts either were sta ted in the HAB’s order or re la te the

We affirm. (Planning Board) to the respondent, Iron Horse Properties, LLC (Iron Horse). had reversed certain approvals granted by the Portsmouth Planning Board decision of the Portsmouth Zoning Board of Adjustment (ZBA), which, in t urn, Wierbonics, appeal a n order of the Housing Appeals Board (HAB) reversing a p. 3 3

Horse’s proposed project failed to meet the criteria for such a permit. Although Planning Board’s issuance of the wetland CUP because, as a matter of law, Iron The petitioners first contend that the HAB erred in upholding the

before us on appeal, and we agree that it does not. Horse contend s that th is procedural posture ha s any significance to the issues burden of pro of with respect to the CUPs. N e ither the petitioners nor Iron appeal of this unusual procedural posture related to which party bore the HAB had jurisdiction over all issues before it, the only consequence to the HAB jurisdiction to entertain th[e] part of their appeal” challenging the CUPs. As the brief to this court, t he petitioners now concede that “the ZBA ha d no to the superior court pursuant to RSA 677:4 through RSA 677:16.”). In their the ZBA); RSA 679:9, I (“Appeals to the [HAB] shall be consistent with appeals for appealing planning board decisions w here some issues are appealable to issues in any event, did so. See RSA 677:15, I - a (2016) (detailing procedures lacked jurisdiction. Accordingly, the HAB, which had jurisdiction over all the appeal of all claims, even those over which Iron Horse claimed the ZBA had to disagree about th at issue, but nevertheless agreed that the HAB should hear shared parking CUP s. When the case reached the HAB, the parties continued ju risdiction over the petitioners’ challenge s to the issuance of the wetland and W e note that before the ZBA, the parties disputed whether the ZBA had

that said decision is unreasonable.” RSA 679:9, II (Supp. 202 2). board is persuaded by the balance of probabilities, on the evidence before it, T he HAB “shall not reverse or modify a decision except for errors of law or if the lawful and reasonable.” RSA 677:6 (2016); see also RSA 679:9, I (Supp. 2022). “zoning board of adjustment or the local legislative body . . . [as] prima facie For its part, the HAB, in its review, mus t treat the factual findings of the

541:1 p. 3 3 (2021). the evidence before [us], that such order is unjust or unreasonable.” RSA “except for errors of law, unless [we are] satisfied, by a clear preponderance of RSA 679:15 (Supp. 2022). Accordingly, we will not set aside the HAB ’ s order Appeal of Town of Amherst, 175 N.H. 575, 577 (2023) (quotation omitted); see “Our review of the HAB’ s decision is governed by RSA chapter 541.”

v. City of Dover, 120 N.H. 187 (1980). whether Iron Horse’s permit requests were b arred under the doctrine of Fisher set forth in section 10.1017.50 of the Portsmouth Z oning O rdinance; and (2) whether Iron Horse’s proposed project met the six criteria for a wetland CUP can generally be consolidated under th e following overarching questions: (1) The petitioners now appeal to this court, raising a number of issues that

as to six of the petitioner s ’ claims and dismissed the remaining three claims. appealed the ZBA’s decision to the HAB. The HAB reversed the ZBA’s findi ngs CUP approvals. F ollowing denial of its motion for rehearing, Iron Horse then p. 4 4

2022); Harborside Assocs., 162 N.H. at 513 (noting that the purpose of RSA (2011). Malachy Glen Assoc s., 155 N.H. at 107; see RSA 67 p. 4 4:33, I (b) (1) (Supp. stated in Harborside Associates v. Parade Residence Hotel, 162 N.H. 508, 513 Boccia v. City of Portsmouth, 151 N.H. 85 (2004), superseded by statute as the now - superseded hardship standard for area variances that we adopted in as it addressed a n “other method reasonably feasib l e” analysis in the context of We conclude, however, that Malachy Glen provides little guidance here,

they assert supports theirs. petitioners, on the other hand, point to different language in Malachy Glen that of Chichester, 155 N.H. 102 (2007), that it asserts supports its position. The project as p roposed.” It points to language in Malachy Glen Associates v. Town question is whether a feasible alternative method is available to implement the project could be developed on the property” and asserts that “[t]he operative Iron Horse argues that “[i] t is immaterial whether a different, smaller

the buildings encroach es on the 100 - foot wetl and buffer. buildings superimposed on one of Iron Horse’s plans. In th a t diagram, none of truncated, and/or reconfigured versions of the three proposed apartment outside the 100’ wetland buffer.” The diagram appears to show smaller, feasible to erect three apartment buildings on the site at a location that is creat ed by a professional engineer “showed irrefutably that it was and is With respect to criterion two, t he petitioners assert that a diagram

(Bo lding omitted.)

Section. impact to areas and environments under the jurisdiction of this (5) The proposal is the alternative with the least adverse . . .. alteration. that is feasible and reasonable for the proposed use, activity or (2) There is no alternative locati on outside the wetland buffer

subsections of that section provide: Ordinance section 10.1017.50, the parties agree that the applicable Although the petitioners did not provide a copy of Portsmouth Zoning

are deemed waived). v. Town of Plymouth, 172 N.H. p. 5 576, 591 (2019) (noting arguments not brief ed we deem any argument that th ose criteria are not met to be waived. See Girard that section.” Because the petitioners have not briefed the other four criteria, reasonable d ispute that the plan failed to comply with subsections (2) and (5) of that it is unnecessary to consider four of the criteria because “it is beyond proposal fully met any of the[] six criteria” in section 10.1017.5 0, they contend the petitioners assert “[t]he re is some doubt as to whether [Iron Horse’s] 5

The petitioners assert that it was not until their appeal to the HAB that Iron the fact that it would not have been as financially rewarding for them to do so.” offered any explanation as to why this could not have been done, other than to be outside of the buffer. The petitioners contend that Iron Horse “never Nevertheless, Chellman asked w hether the project could be “scaled back”

se w er easement. buffer. The entire project cannot be pulled back because of the are pulled back, then they would be putting pavement in the located in the upland outside of the constraints. If the buildings easement and railroad setback limit the options. Th i s project was There is upland out there but the view corridors, 2 p. 5 5 - foot sewer

constraints . . . highlighted on the plan”: senior project manager for the proposed project responded, referencing “the whether “there was buildable land on the parcel outside of the buffer [.]” The At the Planning Board meeting, board member Chellman questioned

(E mphases added). feasible and reasonable for the proposed use, activity or alteration.” show that “[t] here is no alternative location outsid e the wetland buffer that is Here, to satisfy criteri on two in section 10.1017. p. 5 5 0, Iron Horse was required to area variance.” Malachy Glen Assoc s., 155 N.H. at 107 (emphas e s added). other method reasonably fea sible for the applicant to pursue, other than an things, that “the benefit sought by the applicant cannot be achieved by some issue here. In Malachy Glen, the applicant was required to show, among other Moreover, the inquiry at issue in Malachy Glen was different from that at

hardship or practical difficulties”). they are not generally required to meet the rigorous standards of undue zoning regulations, rather than ad hoc requests for zoning relief like variances, (explaining that because “s pecial uses are cond itionally authorized under the ordinance would result in an unnecessary hardship”); see Salkin, supra § 14:1 requirements for a variance, that “[l]iteral enforcement of the provisions of the such a showing. RSA p. 6 674:33, I (a)(2)(E) (Supp. 2022) (providing, as one of the while none of the criteria for a wetland CUP under section 10.1017. p. 5 5 0 require s under RSA 674:33 requires the applicant to show “unnecessary hardship,” subje ct to prior administrative review and approval”). T he test for a variance [conditional use] permit authorizes a use that is provisionally permitted, but authorizes a use that would otherwise be prohibited in the zoning district, a c onditional use permits a nd variances differ “because while a variance Salkin, American Law of Zoning § 14:1 (5th ed. 2019) (explaining that challenge the issu ance of a variance, but, rather, a CUP. See 2 Patricia E. we adopted in” Boccia (quotations omitted)). The petitioners here do not “eliminate the separate unn ecessary hardship standard for area variances that 674:33, I(b), as indicated by the legislature’s statement of intent, was to 6

claim: (1) the Plan ning Board considered and approved the wetland CUP; and The petitioners nevertheless challenge the framework s under which they

wetland buffer. Accordingly, we find no error with respect to criteri on five. the project was “the alternative with the least adverse impact to” the 100 - foot Planning Board a basis on which to conclude that the last - proposed iterati on of the project as finally proposed and approved. This information gave the low of impacting 28,385 fewer square feet than the current site condition under more square feet than the current site condition un der the first iteration to a as then proposed. The net figures ranged from a high of impacting 2 p. 6 6,349 previously submitted to the Conservation Commission” as well as of the project summarized the buffer impacts o f the “four prior . . . iterations of the Site Plan environments under the jurisdiction of this Section.” Iron Horse’s application “[t] he proposal is the alternative with the least adverse impact to areas and We reach a s imilar conclusion with respect to criteri on five: whether

house ’”). Accordingly, we find no error with respect to criteri on two. cost would be prohibitive to remove the back of the [setback - encroaching] representations made by [the equitable waiver applicant’s] attorney that ‘ the was not unreasonable for both the ZBA and the t rial court to credit the See Dietz v. Town of Tuftonboro, 171 N.H. p. 6 614, 624 (2019) (concluding that “it avoid encroachment on the wetland buffer would not be economically feasible. to credit Iron Horse’s attorne y’s representation that scaling down the project to alternate development schemes.”). Moreover, the Planning Board was entitled watercourses] commission can judge firsthand the feasibility and prudence of successive applications for the same site, the [inland wetlands and Watercourses, 821 A.2d 734, 736, 741 (Conn. 2003) (“As a result of review ing location for the project on the site. Cf. Tarullo v. Inland Wetlands and basis for evaluating whether there was a feasible and reasonable alternative Having different iterations of the project befo re it gave the Planning Board a project, with differently configured buildings on differing portions of the site. Planning Board ’s record contains plans for four previous versions of the W e further note, with respect to the evaluation of criterion two, that the

the Planning Board. successfully; feasible”). Thus, Iron Horse argued economic infeasibility before (3d ed. 2010) (defining “viable,” in relevant part, to mean “capable of working Viable is synonymous with feasible. Se e New Oxford American Diction a ry 1925 indicate that a scaled - back project would be less “financially rewarding.” confirmed that it did. Unlike the petitioners, we do not read this exchange to Chellman asked “if viability meant the economics of the project,” the attorney attorney stated that doing so “would make the project no longer viable.” When In response to Chellman’s question about scaling back the project, Iron Horse’s the wetlands buffer,” and that, therefore, the argument is waived. We disagree. infeasible for them to have erected their three buildings at a location outside Horse “argued, for the first time, that it would have been economically p. 7 7

CUP with certain stipulations. The record reflects that the Conservation Commission recommended approval of the wetland 1

project as an improvement over the site’s present condition, but we are not members’ remarks strayed into commentary about the overall benefits of the members “are aware of the criteria and understand [them].” Admittedly, some that that commission went “through the 6 criteria” and that t he c ommission’s appears to have had some connection to the Conservation Commission noted 1 satisfied. During the board members’ discussion, a non - member speaker who manager went through each of the six criteria and argued that each was In its presentation to the Planning Board, Iron Horse’s senior project

and appropriate mitigation when building in the buffer.” interpreted the ordinance such that the application is subject to the 6 criteria said that.” Chairman Legg further stated that the “[Plan ning] Board has always City Attorney did not believe this could be built in the buffer, he would have requirements that are necessary to build within the 100 - foot setback. If the however, noted that at a previous meet ing, the city attorney “articulated the 6 ordinance allowed building in the wetland buffer at all. Chairman Legg, wetland CUP involved whether the applicable provisions of the zoning We disagree. Much of the Planning Board members’ discussion regarding the

proposal against its drawbacks. overall benefit to the environment after weighing the benefits of the wetlands conditional use permit may be issued if there is a “net” “benefits vs. detriments” analysis, wrongly concluding that a mandatory criteria as mere “factors” and improperly adopted a [A] majority of the members of the Planning Board treated [th e six]

The petitioners further argue:

decision.” See RSA 6 p. 7 79:9, II. Planning Board a cted illegally or unreasonably in making its wetlands CUP fully reviewed the record before it and ultimately “d[id] not believe that the could have used more precise language, its decision as a whole reflects that it is not a revision t o the Wetlands CUP criteria.” We agree. Although the HAB ruling,” the language the petitioners challenge “reflects the burden of proof a nd Iron Horse counters that “[p]laced in the proper context of the entire HAB

proposal is ‘not unreasonable, ’” but whether the six criteria are met. main basis for its decision.” They then assert the appr opriate test i s not “that a that Iron Horse’s “plan was ‘not unreasonable’ and used that conclusion as the with all of them. They argue that the HAB concluded in its written decision section 10.101 p. 7 7.5 0 are mandatory and that Iron Horse was required to comply (2) the HAB reviewed that approval. They first note that the six criteria listed in p. 8 8

supposedly to be measured. By rearranging the numbers, [Iron ground level “the new grade,” from which t he building’s height was level of the ground surrounding it. [It] would then call the raised garage” and would use the imported fill to raise by several feet the new building. [It] would then call the first level “the underground and to pack it around the first story/ground floor garage of the [] called for [Iron Horse] to transport fill into the site from outside previous denial of their variance request was simple: The new plan [Iron Horse’s] solution to the dilemma created by the ZBA’s

limit and reaching almost 60’ in height.” They explain: Planning Board approved, still “called for buildings exceeding the 50’ height Th e petitioners assert that the final iteration of the project, which the

were proposed. The ZBA denied the variance by unanimous vote. foot building maximum is permitted.” In this iteration of the project, 17 p. 8 8 units allow a portion of two buildings to be five - stories, 60 feet where a four - story, 50 variance request was addressed reflect that Iron Horse sought a variance “to applicable height limitation. The minutes of the ZBA meeting at which the Horse submitted an application in November 2019 for a variance to exceed the N.H. at 191). Here, in connecti on with a previous iteration of the project, Iron N. H. v. City of Somersworth, 162 N.H. 553, 556 (2011) (quoting Fisher, 120 of circumstances affecting the merits of the application. ’” Brandt Dev. Co. of applicati on, may not review subsequent applications absent a ‘ material change In Fisher, we held that “a zoning board, having rejected one variance

had no business setting aside this finding. plan and the one that had been rejected a year earlier. The [HAB] there was no substantial difference between the revised building City of Dover, 120 N.H. 1 p. 8 87 (1980), the ZBA found as fact that Applying this Court’s holding in the familiar case of Fisher v.

judgment for that of the ZBA. They argue: The petitioners next argue that the HAB improperly substituted its

wetlan d CUP. that the Planning Board did not act illegally or unreasonably in granting the unreasonable. Accordingly, we conclude that the HAB did not err in finding were satisfied, and its conclusion that they were satisfied was not unlawful or determine that criteria two and five — the only two challen ged on appeal — conclude that the Planning Board had adequate evidence on which to which the Planning Board and the HAB considered the wetland CUP. We In sum, w e reject the petitioners’ challenges to the frameworks under

wetland CUP had to be satisfied. persuaded that the members failed to appreciate that all six criteria for a p. 9 9

whether there is evidence in th e record upon which the [ZBA] could have HAB’ s review is not whether it agrees with the [ZBA’s] findings, but, rather, by the record. Thus, the HAB appropriately could have disregarded it: “The previously rejected” by denying a height variance, that finding is not supported Planning Board had approved . . . and the one which the ZBA itself had height limit, there was no substantial difference between the plan which the appeal did find, as the petitioners contend, “that at least with regard to the the ZBA denied” its request for a variance is false. Thus, even if the ZBA on “engaged in ‘architectural sleight of hand’ by raising the property grade after record supports Iron Horse’s contention that the petitioners’ claim that it either four stories or, as the HAB noted, fifty feet in height. Accordingly, the measured from the new average grade plane, none of the buildings exceeded Horse again measured building height from the elevated first floor. As so In the final iteration of its project before the P lanning B oard in 2021, Iron

finished floor was 17.5, so it was approximately the same elevation.” engineer reaffirmed that “the elevation of the railroad track was 17 and the subsequent ZBA appeal from the Planning Board’s decision, the project but, apparently, from the height of the regraded/ elevated first floor. In the building, Iron Horse was not measuring height from the present ground level, line with the railroad.” Thus, in asking for a variance for a sixty - foot tall ground,” Iron Horse’s project engineer stated that “the first floor would be in heights would be measured from the railroad tracks area or the present protection.” Moreover, when asked by a ZBA member whether “the building elevation of all occupied l evels of the building to provide additional flood then propos ed, it had graded the first floor of all three buildings “to raise the In its 201 p. 9 9 variance application, Iron Horse noted that in the project as

supports this contention. where the average grade would be a fter fill was brought in. T he record fully the 201 p. 9 9 variance application and the 2021 final plan were measured from “architectural sleight - of - hand” took place because the building heights in both denied. In other words, as we read its argument, Iron Horse contends that no grade in the 2019 variance application itself and not after that application was factually in correct because Iron Horse proposed bringing in fill to elevate the Iron Horse contends that the petitioners’ Fisher doctrine argument is

buildings” and those for which it had denied a variance in 2020. was not fooled” and found “no substantial difference between the redesigned an “architectural sleight - of - hand.” The petitioners now assert that the “ZBA (Fo o tnote omitted.) At the ZBA hearing, the petitioners called this alleged ru se

height limit and that therefore no variance was required. Horse] claimed that the[] new building would not violate the 50’ p. 10 10

not each individu al appeal request.” (Citation omitted.) numerous appeal counts to be suspect, since the focus of the ZBA was on the project itself and consider the totality of the appeal and say yes or no.’ The [HAB] finds this method of deciding the without significant discussion. . . . In addition, [one ZBA member] said: ‘. . . the Board should just The HAB noted: “[T]he ZBA summarily reversed the Planning Board’s decisions (Counts 1 - 9) 3 record transferred to us, we have not viewed them. accessible from the City of Portsmouth’s web site. As such videos are not part of the certified The petitioners cite YouTube video recordings of the ZBA meeting, which they state are 2

M AC DONALD, C.J.