2024 N.H. 27, Appeal of Town of Hollis

older persons. We affirm. LLC, subdivision application proposing to co nstruct forty units of housing for the applicant s’, Raisanen Homes Elite, LLC and Toddy Brook Investments, Board (HAB) reversing the Town’s P lanning B oard’s decision finding incomplete [¶1] The Town of Hollis (Town) appeals an order of the Housing Appeals

W. Halevi on the brief, and J. Bradford Westgate orally), for the applicants. Winer and Bennett, LLP, of Nashua (J. Bradford Westgate and Barbara

on the brief and orally), for th e Town of Hollis. Cronin, Bisson & Zalinsky, P.C., of Manchester (Christopher B. Drescher

Citation: Appeal of Town of Hollis, 2024 N.H. 27 Case No. 2023 - 0346 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

unreasonable. Chichester Commons, 175 N.H. at 416. The HAB’s factual are satisfied, by a clear preponderance of the evidence, that it is unjust or See RSA 679:15 (Supp. p. 2 202 3). We will not set aside the HAB’s order unless we [¶ 6] Our review of the HAB’s decision is governed by RSA chapter 541.

board could have reasonably based its findings. See i d. at 415 - 16. but, rather, whether there is evidence in the record upon which the planning review is to determine not whether it agrees with the planning board’s findings, board’s factual findings as prima facie lawful and reasonable. Id. The HAB’s unlawful or unreasonable. Id. at 415. The HAB must treat the planning aside the board’s decision bears the burden of proving that the decision was Chichester Commons, 175 N.H. 41 p. 2 2, 415 (2022). The party seeking to set balance of probabilities that the decision was unreasonable. Appeal of the decision unless there was an error of law or the HAB is persuaded by the [¶ 5] When reviewing a planning board’s decision, the HAB must uphold

II. Analysis

decision to deny the application as incomplete. This appeal followed. provided by the Town.” Accordingly, the HAB r eversed the planning board ’s reveals that the Applicant completed the subdivision application and checklist application as incomplete. The HAB found that “the record in this appeal [¶ 4] The HAB concluded that the planning board unlawfully denied the

planning board ’s decision to the HAB. standards. (Bolding and capitalization omitted.) The applicants appealed the comply with subdivision regulations related to road and driveway design persons; ( p. 2 2) failure to provi de a detailed water supply report; and (3) failure to general standards of the Hollis Zoning Ordinance related to housing for older “findings of fact” in support of its decision: (1) failure to comply with the [¶ 3] The planning board issued a written letter of denial identifying three

accept the application as complete. The motion failed unanimously. comment from the applicants, the planning board entertained a motion to application at its meeting. Before opening the matter up for public comment or associated materials. In September, the planning board discussed the completed application form and checklist provided by the Town along with application for the project with the planning board. The application included a design review. In August p. 2 2022, the applicants submitted a final subdivision RSA 676:4, II(b) (2016). In September 2021, the planning board voted to end II(a) (2016). In June, the project advanced to the design review phase. See began a conceptual discussion of the project with the Town. See RSA 676:4, [¶ 2] The record supports the following facts. In May 2020, the applicants

I. Background p. 3 3

finding that the planning board’s decision to deny the application as consideration of the merits of an application”). Accordingly, the HAB’s order — site plan application is merely a procedural pre requisite to a planning board’s Derry, 168 N.H. 108, 115 (2015) (explaining that “a ccepting jurisdiction of a and the Town’s subdivision regulations. See Accurate Transp., Inc. v. Town of application and checklist pro vided by the Town” consistent with RSA 676:4, I(b) the HAB’s determination that the applicants “completed the subdivision [¶ 9] Based on these requirements, w e conclude that the record supports

Checklist located in the Appendix.” required in Section III., Subdivisi on Procedure; and as noted in the Subdivision the purpose of land subdivision, and containing all submissions and fees as application “shall mean an application submitted to the [planning board] for Town’s subdivision regulation Section 11.F provides that a complete Thornton, 168 N.H. 715, 721 - 22 (2016) (quotation and ellipsis omitted). The development satisfies basic requirements.” CBDA Dev., LLC v. Town of consideration and to make an informed decision as to whether the proposed applicant has provided sufficient information to allow the board to proceed with an administrative task by which a planning board ensures only that the informed decision.” Id. “[D] etermining whether an application is ‘complete’ is submitted to all ow the board to proceed with consideration and to make an completed application means that sufficient information is included or jurisdiction to obtain approval.” RSA 676:4, I(b) (2016 & Supp. 202 p. 3 3). “A regulation what constitutes a completed application sufficient to invoke [¶ 8] Under New Hampshire law, “[t] he planning boa rd shall specify by

unjust or unreasonable. incomplete or whether the HAB’s reversal of the planning board’s decision was issue of whether the planning board lawfully determined the application to be application as complete. These arguments, however, have no bearing on the substantive review to ensure zoning compliance” prior to accepting an and t hat it was appropriate for the planning board “to consider some level of [¶ 7] On appeal, the Town argues that the design review phase “is on trial”

supports the HAB’s decision. Id. factual findings, our review is limited to determining whether the record Id. When, as here, the HAB relied upon the record and made no independent whether the HAB’s findings are supported by competent evidence in the record. have found differently or to reweigh the evidence, but, rather, to determine reviewing the HAB’s findings, our task is not to determine whether we would findings are presumed to be prima facie lawful and reasonab le. Id. When p. 4 4

concurred. BASSETT, HANTZ MARCONI, DONOVAN, and COUNTWAY, JJ.,

(2021). Therefore, we affirm. incomplete was unlawful — is not unjust or unreasonable. See RSA 5 p. 4 41:13