2024 N.H. 17, Mojalaki Holdings v. City of Franklin

for the defendant. Wescott Law, P.A., of Laconia (Paul F. Fitzgerald on the brief and orally),

plaintiffs. Jeffrey C. Christensen on the brief, and Jeffrey C. Christensen orally), for the Cleveland, Waters and Bass, P.A., of Concord (Philip M. Hastings and

Citation: Mojal aki Holdings v. City of Franklin, 2024 N.H. 17 Case No. 2022 - 0122 Merrimack

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 owers except where

installing new utility poles would “create an industrial look and character review regulations and gave three reasons for its denial. First, it opined that project conflicted with several of the purpose provisions in th e City’s site plan plan application by a vote of seven to one. The Board concluded that the He sent both to the Board for its review and vote. T he B oard denied the si te decisions — o ne to grant the application with 14 conditions and one to deny it. [¶5] After the public hearings closed, the City Planner drafted two

opposed. and install a green mesh to screen off the project. N eighbors remained those concerns by representing to the Board that they would plant new trees experiences with other solar projects in the city. The plaintiffs tried to address values. Some members of the public distrusted the project because of bad the community,” including how the project would affect neighboring property the land. The Board heard concerns about the “impact of the solar array on concerns that the p roject could alter the scenery of the area and their views of and conducted a site visit. During public comment sessions, n eighbors rai s ed [¶4] While reviewing the application, t he Board held multiple hearings

necessary to protect the public health, safety, and welfare. . . . the unreasonable interpretation of such p be unreasonably limited by use of municipal zoning powers or by structures that facilitate the collection of renewable energy shall not of solar, wind, or other renewable energy systems or the building of forms of energy, and energy conservation. Therefore, the ins tallation direct sunlight for solar energy uses, and the use of other renewable development, the use of solar energy, including adequate access to Proper regulations encourage energy efficient patterns of

67 p. 2 2:1, III - a when reviewing them. R S A 672:1, III - a (2016) states: solar panel arrays. Instead, he advised that the Board has relied on RSA did not have any ordinance language “on the books” specifically ad d ressing [¶3] At the time of the application, the City P lanner advised that the City

space and was once a golf course. approximately 96 acres of land owned by Moj a laki. The land is mostly open sufficient sunlight. It would sit on a bout six and a half acres of the utility poles and cutting down mature trees so the solar panels can receive construct a solar panel array. The solar panel array require s installing new decision, or the record before us. GSSG applied for site plan approval to [¶ p. 2 2] We draw the following facts from the trial court’s order, the Board’s

for entry of a builder’s remedy. a site plan application to install a solar panel array. We re verse and remand p. 3 3

the site - specific technical regulations applicable to the project. The defendant provisions of the site plan regulations even though the plaintiffs satisfied all of Board’s decision to deny the application in reliance solel y on the purpose [¶10] The plaintiff s first assert that the trial court erred by affirming the

erroneous. Star Vector Corp. v. Town of Windham, 146 N.H. 490, 49 p. 3 3 (2001). trial court unless its decision is not supported by the evidence or is legally as the trial court based upon the evidence before it. Id. We will uphold the determine whether a reasonable person could have reached the same decision evidence or is legally erroneous. Id. We review the trial court’s decision to will reverse a trial court’s decisio n on appeal only if it is not supported by the [¶9] Our review of the trial court’s decision is similarly limited. Id. We

based. Id. whether there is evidence upon which its findings could have reasonably been court determines not whethe r it agrees with the planning board’ s findings, but balance of probabilities, the B oard’s decision was unreasonable. Id. The trial appealing party bears the burden of persuading the trial court that, by the de cision absent unreasonableness or an identified error of law. Id. The planning board as prima facie lawful and reasonable and cannot set aside its 171 N.H. 497, 504 (2018). The trial court must treat the factual findings of the trial court’s review is limited. Trustees of Dartmouth Coll. v. Town of Hanover, that [the B oard’s] decision is unreasonable.” RSA 677:15, V (2016). Thus, the the court is persuaded by the balance of probabilities, on the evidence before it, modif y the decision brought up for review when there is an error of law or when provides that the trial court “may reverse o r affirm, wholly or partly, or may review of a planning board’s decision is governed by RSA 677:15, V, which court’s decision, two standards of review come into play. First, the trial court’s [¶8] When a party appeals a planning board ’s decision and then a trial

[¶7] This appeal followed.

finding. endangered, or adversely impacted the residents, and did not uphold that no facts supported the B oard’s second basis, that the solar panel array and third of the Board’s three reasons for denial. It determined, however, that superior court upheld the denial of the site plan application, relying on the first [¶6] The plaintiff s appealed the decision to the superior court. The

the purpose provision s. t hird, it opined that cutting down mature trees to plant new trees contradicts abutters to the project, and to the overall residents of the neighborhood.” And p anel array “create s an endangerment, an adverse impact, to both the direct which is out of place in this neighborhood.” Second, it opined that the solar p. 4 4

other things: below.” Id. Relevant here, the stated purposes of the regulations are to, among provisions outlined in [RSA 67 p. 4 4:44, II] . . . and such other purposes outlined “[t]hese regulations shall prov ide for and require all of the purposes and Regulations ch. 402 - 1(C) (2011) (SPRR). The “Purpose” provision states that and it includes a “Purpose” provision. See Franklin, N.H., Site Plan Review 674:44. The title of Chapter 402 - 1 of the regulations is “General Provisions,” [¶13] Here, the Board adopted site plan regulations pursuant to RSA

e.g., id. applications must meet to achieve the goals of the purpose provisions. See, Conversely, other provisions detail the specific technical re quirements that Purpose provisions outline the goals of site plan review regulations. requirements with which the proposed development shall comply.” Id. plan review” differ from those that “[s] pecify the general standards and (quoting RSA 67 p. 4 4:44, III (b), (c)). Provisions that “[d]efine the purposes of site shall comply. ’” Derry S enio r Dev. v. Town of Derry, 157 N.H. 441, 448 (2008) general standards and requirements with which the proposed development among other things, ‘[d] efine the purposes of site plan review ’ and ‘ [s] pecify the regulations. When a plann ing board adopts site plan regulations, the y “must, [¶12] RSA 674:44 (2016) governs the adoption of local site plan review

556 (2010). Loughlin, New Hampshire Practice: Land Use Planning and Zoning § 30.09, at use would create unusual public safety, health, or welfare concerns.” 15 P eter the zoning ordinance, it cannot be barred by the site review process unless the question is reserved for zoning. Id. at 505. “If the use is permitted by Trustees of Dartmouth Coll., 171 N.H. at 50 p. 4 4 - 05 (quotation omitted). That Board “does not feel that the proposed use is an appropriate use of the land.” site plan review is limited, and a project cannot be denied simply because the property owners or the general public.” Id. (quotation omitted). Nevertheless, not involve danger or injury to the health, safety, or prosperity of abutting sites will be developed in a safe and attractive manner and in a way that will (2004) (quotation omitted). Site plan review is also intended to ensure “that lighting problems.” Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 78 area in which they are being constructed without causing drainage, traffic, or zoning ordinance are “constructed on a site in such a way that they fit into the [¶11] Site plan review is designed to e nsure that uses permitted by a

provisions of the site plan regulations. to deny the plaintiff s’ site plan application based solely on applying the purpose agree with the plai ntiffs. The trial court erred in affirming the B oard ’s decision concerns about constructing a solar panel array in a rural residential area. We purpose provisions of the site plan regulations because the Board had specific c ounter s that th e trial court properly upheld the Boar d ’s denial based on the p. 5 5

was a proper basis for denial of the application. Id. the application. Id. at 4 p. 5 51. We did not conclude that reliance on the purpose provisions, alone, failing to satisfy a purpose for which the site plan regulations are enacted, the board could deny despite state approval, the proposed system posed a danger to public health, safety, or welfare by 157 N.H. 441, 448 - 51 (2008). In doing so, we explained that if other evidence demonstrated that, plan regulations provided adequate proof of a safe system. Derry Senior Dev. v. Town of Derry, presumption that obtaining state approval of the sewage disposal system as required by the site In Derry Senior Dev elopment, we determined that there was insufficient evidence to rebut the 1

provision. Trustees of Dartmouth Coll., 171 N.H. at p. 5 512 - 13. Th us, whil e the sufficient evidentiary support cannot justify a denial on the basis of a purpose requirements of the site plan regulations, ad hoc decision making without plan,” when a n application complies wi th zoning and the specific technical “to prohibit a Board from using gene ral purpose provisions in ruling on a site [¶15] Although the trial court did not read Trustees of Dartmouth College

regulation existed). for not meeting the Board’s concerns when no governing ordinance or at 81 (Nadeau, J., dissenting) (reasoning that the plaintiff should not be faulted basis because of vague concerns.”); see also Summa Humma Enters., 1 p. 5 51 N.H. making. See id. at 451 (“[T]he board may not deny approval on an ad hoc 1 be judged by the subjective views of the Board through ad hoc decision objective standards to guide the application and the proposed project is left to must meet. Without specific requirements, the appl icant is left without The purpose provisions do not detail specific requirements that an applicant that the board enacted site plan regulations to achieve the ir stated purpose). regulations that follow. See Derry Senior Dev., 157 N.H. at 448 (determining language, the purpose provisions outline the purposes for the specific purpose provisions, alone, to deny their application. We agree. By their plain [¶14] The plaintiffs contend that th e Board could not rely on th e se

Id.

historic landmarks. bodies, wetlands, and natural drainage patterns, and such as mature trees or stands of trees, stone walls, water 8. Provide for the protection of significant exi s ting features

. . .

general public and the abutting properties and their owners. endangerment to the health, safety, and welfare of the character that it can be used for building purposes without 3. Provide that the land shown on the proposed plan is of such

development of the City and its environs. 2. Provide for the harmonious and aest hetically pleasing p. 6 6

the evidence. Britton, 134 N.H. at 443 - 44. If the applicants meet their burden, proving that their proposed development is reasonable by a preponderance of (1987). To receive a builder’s remedy, the applicants bear the burden of is a discretionary remedy. Soares v. Town of Atkinson, 129 N.H. 313, 31 p. 6 6 grossly inequitable.” Britton v. Town of Chester, 134 N.H. 434, 443 (1991). It plans after all the time, effor t and capital invested in such a challenge is a proposed project. Id. “[T]o forsake [the plaintiffs’] reasonable development We agree. A builder’s remedy grants a developer the specific right to complete See Cmty. Res. for Justice v. City of Manchester, 157 N.H. 152, 155 (2008). remedy, which would grant them the right to construct their solar panel array. [¶18] Lastly, the plaintiffs contend that they are entitled to a builder’s

application, we need not address the ir constitutional argument. of the [p] roperty would have be en unacceptable.” In light of our decision on the unconstitutional taking because the decision suggested “that any development plaintiff s contend that the denial of the solar facility constituted an [¶17] In addition to their challenge o f the application’s denial, t he

police powers, it offers little guidance. Deering dealt with an interpretation of the scope of the municipality’s statutory site plan review. Deering, 105 N.H. at 483; s ee RSA p. 6 674:44, I. Because established a planning board, which, today, are prerequisite s to the exercise of adopted a zoning ordinance or site plan review regulations, nor had it 6 72, 6 73, 6 74 (2016 & Supp. 2023). At that time, the Town of Deering had not framework for zoning and site plan review. See Laws 198 3, 447:1; RSA chs. differs from this case, however, because it predates the modern statutory institutions of the town.” Id. at 485; see RSA 31:39 (2023 Supp.). Deering of the town’s police powers to make bylaws for the “protection of the public 83 (quotation omitted). We concluded that the ordinance was a valid exercise built home because it would “impair the atmosphere of the Town.” Id. at 482 - (quotation omitted). T he selectmen denied an application to construct a pre - Deering may be maintained.” Deering v. Tibbetts, 105 N.H. 481, 482 (1964) the selectmen approved the plans “in order that the at mosphere of the Town of municipal ordinance prohibiting construction near the town common unless surrounding environment. In Deering, we considered the validity of a contend that the B oard can deny a project solely because it does not fit the [¶16] The defendant analogizes the present case to Deering v. Tibbetts, to

of general cons iderations,” o r here, purpose provisions. Id. at 514. own personal feelings and then justify their reasoning through the application regulations and ordinances that control the site plan review process with their determined there, as we do here, that a Board “cannot supersede the specific concerns. See Trustees of Dartmouth Coll., 1 p. 7 71 N.H. at 512 - 13. We and here, both B oards denied the applications by relying on their ad hoc lack sufficient specificity for site plan review. In Trustees of Dartmouth College purpose provisions guide the application of the site plan requirements, they 7

N.H. CONST. pt. II, art. p. 7 78. HICKS, J., sat for oral argument but did not participate in the final vote, see M AC DONALD, C.J., and BASSETT and DONOVAN, JJ., concurred;

alternative draft decision which would have gran ted the application. builder’s remedy provided that they comply with the 14 conditions listed in the applicable site plan regulations. Thus, we grant the plaintiffs’ request for a on by the Board, there was no dispute that the application met the specific, the record reveals that, other than with respect to the purpose provisions r elied that no further fact finding was necessary. Id. Similarly, here, our review of with the 21 conditions identified by the planning board). There, we determined N.H. at 514 (granting a builder’s remedy provided that th e applicant comply zoning ordinances and site plan regulations. Trustee s of Dartmouth Coll., 1 p. 7 71 when the record established that a site plan proposal complied with the specific provision is invalidated. See, e.g., i d. However, we granted a builder’s remedy [¶19] Our builder’s remedy cases often arise when a zoning ordinance

applicable regulations. Id. they can proceed with their development, so long as they comply with all other