Ppi Enterprises v. Town of Windham

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Good morning, chief Justice. May please the court You reserve two minutes? Yes, I preserve two minutes. Thank you for asking.

Uh, my name is John Cronin. I'm with the firm of Cronin, Bisson and Zelensky, and it's my honor and privilege to argue this case before you today. Uh, this case is no stranger to you having been here before. It relates to a piece of property in Windham, New Hampshire. It's approximately 45.5 acres, and it sits accessed by a public road known as Ledge Road. Uh, ledge Road is some significance in this case because blasting is one of the issues at play. Uh, in the prior case and in some of the trial court decisions, the issue of remand to the planning board was raised. And in fact, at one point, the ZBA remanded the case to the planning board after it determined that the original basis for denial after seven hearings over a period of months, uh, was incorrect. Uh, the z Planning Board initially when they had the case, uh, heard it. The engineering team went through all of the process review. Engineers hired by the town, made all kinds of modifications at the request of the town and were ready for a final vote. Uh, planning board struggled to find a basis in the regulations to deny the plan and denied it on a general proposition under the zoning ordinance. Uh, we appealed that under procedure to the ZBA as well as the court. And the ZBA determined that basis for denial, uh, was improper, uh, the ZBA remanded it to the planning board for further consideration. We raised an issue with that saying that the ZBA did not have power and authority to remand, but it became moved based on the decision of the Superior Court. Uh, eventually the Town Planning Board, they denied this application based on the road grade of a site driveway. There are regulations that we concede in town, uh, that call for various grades of public streets and access streets, typically in a subdivision. But it's our contention that those regulations don't regulate the grade of a private driveway, which this would be. You, you take that position now. But, uh, the town and its brief cite several instances where the, uh, your client conceded that the 8% applied. Not only is that right, not only does the town say it, the trial court says it, yes, I Why aren't you bound by that? Uh, Because it's not a concession that it applies. Uh, throughout the case, they're saying, you know, Hobson's choice. Look at, we, we originally proposed the plan with an 8% grade, which admittedly meets the regulations, but in order to do that, it required blasting, uh, this elected board. A lot of people and folks came out to the hearings because they had a prior developer that wasn't very good, you know, didn't do what they were supposed to do and did cause uh, some concerns relative to blasting. Uh, so they went through that particular process and there was discussion only near the end about this road grade. And the engineer said, look, it, we can do it one of two ways. We can do the 8% grade and make this fully compliant, which is how we applied, but if you want us to, we can limit the blasting and give you a 10% road grade. When you look at what the quotes is, particularly in the trial court, in the brief, all it was saying is, Hey, if you wanna compliant with 8%, we can do that. We've said that throughout. We set it on appeal, we set it at the trial court, you want 8%, we will do it. And we conceded to comply with what they wanted was 8% not to comply with the regulations. And even if we said it, uh, this court has often said that I've been wrong on the law. And if you look at the regulations yourself and see it, the town who drafted it knows the distinction between what a driveway is and what a road is and what a street is. And they make that distinction in their regulations as laid out in their brief. Now, So can you clarify, the application that was voted on by the planning board was an application for 10% grade, is that right? That's Not correct. Initially it was 8%. Well, at the time it was voted on, had it been amended to be 10% yes, At the request of the planning board to try and comply with their concerns about blasting, Wasn't there an interim plan at 8% that also had reduced the blasting? Like there was a first plan at 8%, there was an effort to reduce blasting and still maintain the 8% and then the 10%. Uh, yes, your Honor, the way that it worked out, the fully compliant plan that med through regulations went through the process. Yeah, they were concerns about blasting, uh, blasting is pretty common in New Hampshire. They do it a lot and they do it a lot in Wyndham. And they have blasting regulations that are not administered by the planning board. They're done by the board of selection and the deputy chief, so initially this applicant proposed 58,000 yards of removal. Contrast that with the meadowcroft of the original, develop 150,000 Initially, uh, the engineer said, look it, we can reduce that blasting because I can hammer more expensive, a little bit more noise that we can do it without blasting. So that reduced it down from 50 something to approximately 38,000 yards, a significant reduction. So there was a plan before the planning board with less blasting maintaining the 8%. That's correct. And that was for the pad at the front. The third plan after they was more concern about it, that said, look at, let's go to a 10% grade. Now when we talk about eight and 10%, and when you look at the difference in grade, the 2% grade for a private drive, it, it's not a lot. Uh, when you look at that, and if you drive around and if you look, there's a lot of folks around here that have driveways that are excessive 10% grade, even though that it's, uh, New Hampshire. So at the end, they got it down to 19,000, and that was to limit the blasting to a remote section of the site for the detention pond away from the houses and a little bit of the drive, uh, going into the site. Uh, so they did a, a remarkable job and, and the applicants said, I don't care how you want it. If you wanna comply at 8%, we'll do it at 8%, but we're gonna have 38,000 yards. We gotta blast and we are gonna do it according to the regulations, and we're gonna post all the security that you need, just like all these other people that have been blasting in Wyndham prior to 2018. And since 2018, we are gonna follow it. So the blasting permit would've been obtained from the Selectmen? That's correct. Not the planning board, Uh, from the Selectmen. So Why didn't your client proceed with the 8% and then go to the Board of Selectmen to see if he could get a blasting permit? Well, the Selectmen sent their representative, the fire chief, who testified in the record saying, this can be done safely. And that's not something you would get until you had your site plan approval, and then you have to follow the ordinance. So that's not something that they would do. But throughout this case, even after this remand and after the trial court's decision, the flag has always been waving. We'll do it at 8%. And, uh, you know, the, the words that I think a, a lawyer that comes here hates to see in the opinions is, uh, you know, the appellant's argument, uh, uh, was flawed or misplaced or their reasoning, uh, was not correct. I think this court and the trial court's reasoning that they could remand and would get a full and fair opportunity to address whatever concerns we had, was clearly flawed or misplaced. What happened on remand, it went back to the planning board. And contrary to Judge Tory's statement in the record where he says, we can go back to the planning board and they can have a, a, a discussion about what the concerns are, and PPII will have a fair opportunity to address it. PPI wasn't allowed to speak going on remand. There was a prepared speech that was written by one member, which listed a whole host of reasons, noise and groundwater that were not the subject of concerns over the seven meetings that took place on this, and not a concern of any of the consulting engineers that the applicant was required to pay and do an analysis. So we said in one of these documents that, so sending us back to the lion's den is a waste of time and money. And I will say my argument at that time was on point. 'cause that's what's happened. So in this case, I'm asking you to do two things. Uh, one, I would like you to reverse the decision of the planning board and say, PPI can go forward with their development provided they maintain an 8% grade and they follow the blasting ordinance in post all the applicable security. And because the world has changed in development since 2018, the feasibility of this project is very different today than it was in 2018, 19 or 20. Court can take notice that, uh, interest rates have nearly tripled in the commercial spectrum. Uh, construction costs are through the roof. Uh, but nevertheless, that's our ask. The second ask, which I think is a more important and pressing ask for us, is the inverse condemnation. If it wasn't right before, based on the last decision of the planning board, it's right now, Where would on, on your first point, where would we have the authority to impose 8% as the grades say it should be approved at 8%? Well, that, that's what's the basis for us deciding 8% is right. That that's what the town has said all along in their minutes of their meeting. Uh, we want an 8% grade. You have the fire chief who said even at 10%, this is workable. The fire chief with the big trucks, he's got big things to turn around. He said it was safe at 10%. The only thing that they relied on was a little memo, uh, from a police chief that's in the record, talks about a few things and, oh, make the grade at 8%. The police chief never approved 10%, right? No, he never approved 10%. He, uh, he never did anything other than send that memo. We never heard from him. The engineer in the record says, during the process, the give and take that the engineers do, he never saw that memo believes that surfaced after the fact. Do You agree that at some percent a driveway can be so steep as to preclude development or to base a denial on, Uh, at some, at some point, yes. I think it can. It's not 10% and it's certainly not 8%. And the best evidence of that is the Carnes property cited in the record, which is directly adjacent on Ledge Road, up the same slope with big heavy industrial trucks. And how is it that we're supposed to substitute our judgment for the planning board or the trial court as to the appropriateness of 10% or 12%, or 14% or 8%? Because I think, uh, you're the final stop when it comes to the law in New Hampshire, uh, planning board has a right to review plans according to their regulations. If their regulations are 8%, maybe you don't dictate it's 8%, uh, but not to exceed 8% or consistent with the regulations. But I think you certainly have the authority to say the decision was unreasonable, uh, to deny this, uh, based on an 8% grade for purposes Inverse condemnation, the the case is ripe. The the claim is ripe because the plan board has reached an endpoint. Well, when you look at the other cases that are, are cited in our brief, uh, clearly this record is complete where somebody could review this to determine whether the zoning, whether on its face or as applied, uh, it results in a taking of property. Uh, the evidence of that, uh, chairman Carpenter, uh, after the denial kind of chuckled and we raised that and said, uh, why don't we invite him to the next meeting and, uh, make arrangements for him to donate his property after seven months and, and hundreds of thousands in costs. Uh, so someone looking at this, I'm sure it's right because it's futile going forward, the the rightness doctrine, right? You have to have a full record to contemplate it. And I think you probably should deviate from that. People talk about land use and properties and cost being so high. A big part of it is this soft cost. And you have a growing number of people that gravitate to these boards, either by appointment or election on an anti-development platform. And guess what? There's no consequence whether they ignore the rules or apply 'em. So what, Well, can't they be voted out? Uh, they can be, but when you have the majority of the people that are already in town, they're more than happy to put the moat around their community. Uh, so people can't develop. Well, what are the specific, uh, regulations or zoning ordinance provisions that you claim make this an unconstitutional taking? I believe that the decisions of the planning board and interpretation of their regulations, uh, make this property undevelopable. They don't want blasting and they won't let you blast and they won't let you build to an 8% grade, which is at their regulations. So I know the town has said, well, we haven't challenged anything. No need to challenge it 'cause we're willing to, to comply. And we've said that all along. Uh, this is the decision making of a board that's taking what we believe is the regulations and using them to result in a taking of property. Mr. Cronin, is it, oh, go Ahead. Is it a temporary or a permanent taking? It's both. If there were to be a way to put that 8% plan back before the board and get it approved, then it's just the passage of time. Uh, perhaps it's, and, and it's the feasibility too. Uh, so, and, and getting it back before the board, the board know that the 8% has been before them a number of times and they're gonna come up with other reasons. It's, it's, it's an effort in futility. But I believe that if this case isn't ripe or isn't proper for us to explore an inverse condemnation case, no case will be right for it. We might as well take that theory off the docket and say, there's never gonna be a case in which that can happen. Mr. Cronin didn't the, um, this is a 45 acre piece in Wyndham piece of property that was bought for $500,000. Didn't the purchase price of $500,000, isn't that dramatically reduced to reflect the difficulty or perhaps the impossibility of development? Uh, I would assume that it, a lot of that acreage is not being touched and particularly around the perimeter, near the houses. So it's a small area that's being developed. Uh, like any site, when you look at 45 acres, if you have 40 acres of wetland, the price is gonna be respectful, you know, adjusted accordingly. But I will say, uh, 500,000 is not a price for Undevelopable land. You know, you're looking at, you know, a thousand dollars an acre for undeveloped land that you can't develop. So there was an expectation. And storage use is about the least intensive in terms of traffic, no peak hour activity. Maybe on the weekends you have some folks and some box trucks, but the reason that it was selected, it was allowed by the regulations and its traffic impacts were relatively small compared to other potential uses. Thank you very much. Thank you Attorney

Clark. Attorney Campbell. Thank you, your Honor. Good morning. And may I please the court? My name's attorney Bernard Campbell. I'm here on behalf of the Town of Windham. Um, I'm gonna start first with the takings claim. I mean, there are two issues in this case as the upholding of the denial of a site plan, and then there's the takings claim in this case. Um, I would respectfully submit that the takings claim is not premature, it's non-existent, uh, taking cases. This court, beginning with Borough and Keen nearly all relate to a regulation that is targeted to a specific parcel of land, as it was in the case of the borough's case where the city rezoned the area after the application came in. It was an arbitrary and unreasonable restriction that was enacted. Either they target a specific case or in the case of let's say the Hill Grant versus KoSA Lighting District, an area based on so many feet above elevation, sea level, frankly, most of the takings cases or alleged taking cases that have come before you have related to DOT type issues in terms of a highway layout that targets a specific property. The plaintiff in this case has failed to identify any, any specific regulation at issue in this case that constitutes an arbitrary or unreasonable restrictions, But it's also a basis for a takings claim that a regulation which is perfectly proper is applied in such a way to deny the reasonable use of the property. Well, your Honor, that would require this court, I think to reverse to previous precedents that you've previously submitted. First of all, in the Smith versus Wolfborough case at 1 36 New Hampshire 3 37, which did not end up getting cited in our brief, but the other wolfborough case is the Dumont versus Wolfborough case that is cited in our brief on two occasions. This court has said an error by the planning board in interpreting an otherwise correct or reasonable restriction does not result in a taking. Well, There's a difference between an error and a, a program of trying to find obstacles, applying the ordinance in such a way that even though the use is permitted and it meets all the, uh, site plan regulations, there's still going to be a basis for denial. So there's a difference between making an error and looking for an excuse. Well, and I would, I would submit, your Honor, there's a difference between assessing the planning board, whether it's attorney's fees or costs or whatever, and then tagging the municipality with a takings bill to take some land in this case. Um, the plaintiff has argued that the planning board members have some sort of bias against the approval of this, uh, project. Uh, first of all, when we go back to the planning board's denial on this case, that denial was entirely reasonable. So that's, that's really not on the table here in this case, Which denial was reasonable, The denial of the site plan based on the excessive grade of the access point. But they had a plan before them that had the 8% grade and reduced blasting, But that never came to a final vote, your Honor. So we don't know what the planning board Is gonna be 'cause they directed it in a different direction. Well, I think if you review the record, I don't find any, uh, contrary to what I thought I heard, I don't see anything in the record where the planning board said, change your grade 10% and reduce the blasting. I don't see that. I don't think you'll find that. I don't think the planning board ever suggested that the grade go above 8%. They knew it shouldn't go above 8% because the police department and the police chief who's responsible for the public safety in the town of Wyndham had made it clear his belief that it should not exceed 8%. So if that 8% plan with the 38,000, with the 38,000 area cubic yards for blasting, right, um, if that were submitted back before the planning board, which the town has set, they can bring the plan back and we'll look at it in good faith that meets all the requirements. And then that plan should be approved if it meets all the requirements. And the, the planning board, um, determines that the, the,

the issue with the blasting, your Honor, and, and attorney, uh, Cronin made some reference to it. There is a PAC back history on this parcel. It's not like we're blasting out of Virgin land. There is a, a large back history. Sure, Someone did a bad job before And, and if you read the minutes of some of the planning board meetings near the end, uh, specifically the last one having to do, when Placer came in, the questions were, will what you want to do at this site aggravate or disturb something that may still be hidden in the ground or may affect something that, or trigger something related to the past history? So this is admittedly a very unique site in terms of, in terms of that issue, Right? And that was thoroughly vetted by different experts, et cetera. So, um, I guess my thought is, given that there was no opportunity to discuss this when it was remanded before, how do we know that a remand now on that 8% plan wouldn't suffer the same fate? Well, first of all, I suppose it depends on how you were your remand order. Uh, and the second issue is just, just to be clear, when you remanded the case previously, you made it clear to the town that the hearing process was over and you wanted an expeditious, your, your order specifically recognized that the the hearing process had ended, the evidence was in, and that we, we, the Town Planning Board should reach a final decision. So the the, it came back, we had one meeting where we re deliberated in accordance with your remand. We didn't allow any additional evidence because the record was closed and they voted on it and they voted as they did. Uh, with regard to the, the denying the site plan based on the grade, and as, as was recognized by Justice Bassett, there are at least four times, I counted at least four times in the hearing transcript where Attorney Cronin, or on behalf of the client, plaintiff's counsel, essentially admitted that the road grade, um, failed to meet the regulation. Um, and whether or not in retrospect he can argue that that regulation doesn't actually apply to this case, I think he's a stop to deny it based on the representations, not only in in the certified record, but it, but Isn't it the planning board's job to apply the regulation as it is intended to be? And I think they did in this case. They said that 10% when that as, as you see in the certified record, that change came very late in the process. In fact, I'm not even sure that the police department ever saw it when it came back the, the last time the fire department did. The fire department reexamined the question and they said, well, it's, it's good for us. And as I noted in our, in our arguments before, you know, that's the fire department. They're professionals, they drive that equipment. This is a proposed self storage facility. People are gonna take their pickup trucks and their box trucks and their rented Home Depot trucks, and they're gonna drive up this hill and then they're gonna come back down that hill. And we are not, you know, these aren't professionals who are driving. And so the police chief is clearly within what I think is a reasonable assumption that this grade should not be too great because this is a self-storage facility. There's gonna be traffic coming down there with basically people who are not skilled in, in operating a piece of equipment or potentially not skilled in operating a piece of equipment. And we should maximize the public safety. And that is that the 8% grade should be not exceeded. And, and that's clear. I think that was in the record. Um, in the final libation hearing, it was pointed out that this was brought up at what's called A TRC, you know, a TRC Technical Review Committee, uh, when the police chief was involved. And so that grade was established, um, and the maximum was established and the applicant adhered to it up until near the, nearly the very end. And then near the very end, they said, well, they threw out this idea, let's increase the grade to 10 so that we can reduce the blasting. And as I said, there's nothing in the record, which suggests that the planning board ever thought that that was a good trade off. And in fact, they denied it based on the fact that it was a bad trade off, um, and they would not go along with it. Judge Tory in his ruling, um, looked at that and said the planning board was right. That grade is excessive. That grade poses a public safety hazard, and the plan was correctly denied in the various motions for reconsideration. We said, if the applicant comes back with an 8% grade, that issue comes off the table. So now we're back to maybe that blasting argument. And then the question's gonna be whether the planning board, when faced with an acceptable grade, faced with whatever has been developed in Judge Tory's opinion, whatever has been developed in your remand, or if it is a remand or I'm hoping for an affirmance that that denial is correct. Um, but you certainly may comment, I'm sure on other issues related to the applicant coming back before the planning Board, if that is the case. Um, and all of that guidance will be taken into consideration by the planning board if in fact the applicant comes back and asks for, um, a new, uh, a reevaluation of his proposal. Judge Tory did indicate that there are other options for the possibility of access to this site. Um, the comment was that they are a non-starter. Um, maybe if now this denial is upheld, uh, maybe there will be a little more serious conversation about that potential or otherwise continue to work on the issue of satisfying the concerns about the blasting and going ahead and blasting up the 8% grade. Can you just clarify for me, if the planning board were to get this back and approve a proposal with an 8% grade that involves some blasting, the PPI would still have to go to the Selectmen for a blasting permit or Not? Well, I think I, I think that's actually been delegated to the fire department to be honest. I think, uh, you, you see in the last hearing before the first denial, um, there's a Deputy Chief Deputy Fire Chief Chief Morgan, who is actually the administrator of that permit process. But it's not a planning board decision. No, it is not a plan. The, the permit itself, the requirements under that permit, the oversight of that permit originate outta the fire department, uh, the assistant chief, uh, who administers that program. And I think the record's clear on that. How would it work if, if we were to do what Mr. Cronin asks in reverse and say, actually this, uh, 10% proposal should go ahead. What about the, uh, abutters and the other concerned parties in town that had no reason to appeal because the application was denied? Um, what would happen to their rights? Well, your Honor, I, you, you, this court occasionally reverses land use decisions, um, and the, the abutters and anybody who's interested in that application need to understand that this court can reverse a decision or a firm in this case reverse our denial. And I think the abutters, the abutters had their, the abutters had their due process opportunity to show up at the hearing, which they did. The record is replete with, with comments from the abutters. If you, in your wisdom were to overturn the denial, uh, finding that the um, 10% was not unreasonable and that the planning board's decision on that case. Now, keep in mind Judge Torre, in his opinion, said he didn't need to get to the blasting issue because he was gonna focus strictly on the question of the road grade. And, and basically he never went to the issue of the blasting to speak of, um, he, he focused on the road grade. He, he cited the propositions that this court has previously established that says if any one of the basis for denial, uh, was accurate, then the the plan should be, uh, the, the denial should be affirmed. So the, the trial court never really explored the issue of the blasting as a determinative factor. But if this court should overturn Judge Tory's ruling, I'm not sure the abutters have any other recourse. Um, certainly they're not gonna be happy. But, but There were, there were three bases for the planning board decision. Is that right? And the, There was Trial court only addressed the 10% grade issue? Correct? There was, there was an issue about the, um, compliance with 5 0 2, um, relative to, uh, safety. And, um, but I think, I think as a practical matter, those get rolled up into, basically it's the road grade or it's the blasting. I mean, it Had to do with proposed blasting and potential contamination of ground and surface water. That's why I said the Trial court didn't address that. Correct? Correct. I it's, it's, it's sort of the road grade and the blasting issue. The, the trial court went on the road grade issue, which I think is appropriate and should be upheld, um, because it was essentially conceded to, to begin with. Um, and so if that is upheld, the applicant will have, the property owner will have the decision to make, to come back with and resubmit their 8% grade plan with whatever, um, blasting is associated with that and push that forward to a decision. And then if that decision is adverse, ostensibly they can appeal again, um, The reasonableness of that decision. But going back to the first point where I was, uh, when the argument began, again, those, those wrongful decisions, if they are in fact wrongful decisions in this case, that was the correct decision, but if it in fact it is a wrongful decision of an otherwise reasonable regulation, then this court has previously circumcised that issue to say that is on the board that's making the error that is not on the community to tag them with an, with a taking issue. Um, if the regulation isn't unreasonable,

we can't find a basis to say that there was a taking. I'm submitted, your Honor. Thank you, attorney Campbell. Attorney Crum In re in rebuttal, what, uh, I would like to say is, uh, one with respect to the remand order, uh, we don't have a preference either due it 10% with 19,000 of lasting are due 8% with 30 something yards of blasting. Either way, uh, if they want it to be 8%, we can do it at 8% like a lot of other people, uh, do in Wyndham. Just wanna read a passage. It's from, uh, page 48 of our appendix. Uh, this is a segment of Judge Tory's order on his remand and, uh, making reference to our concerns about going to the lion's den, drawing on the lengthy proceedings that have already acco occurred. The board will presumably be in a position to quickly and clearly identify the remaining areas of concern so that PPI as a full and fair opportunity to address same in the event that PPI pursues this approach. That's the 8% approach that's on page nine of the decision that never happened, admittedly, right? Uh, they have their hearing, sure the public hearing is closed, right? No more evidence from the public. Uh, but the good faith and fear dealing of the planning board don't even have an opportunity to have the discussion that we're having today. And the other issues in the post memo, you set up the straw man that we can never satisfy. Can you guarantee that there'll be no impact to the groundwater from blasting? No one that blasts the state of New Hampshire for the no one can guarantee that that's why the regulations have the safeguards and the security in them. Uh, the, uh, guarantee there'll be no impact to surrounding houses. We can't guarantee that no one can. The board hired their own expert and brought them in and they didn't like what he had to say. So it's my belief that if we go back, it's gonna be a whole host of other reasons. Well, what do we do about the fact that there were three bases for the planning board decision and judge to addressed only one? Um, I think, I think any one of them could have supported a denial. They're all the same. And I think if you read his order in context, well The second and third are all about blasting and potential contamination of groundwater and surface water. And that's not what you're here arguing about. And, and that's not a planning board concern. The Board of Selectmen adopted the, uh, blasting ordinance. They delegated authority to enforce it to the Deputy Fire Chief Morgan. He's in the, in the record, testifying that this can be done safely, uh, under the ordinance. So in our view, that's a non-issue. Two issues were grade and blasting. The, the, the, the shallow you grade, the more blasting higher your grade, the less blasting. Uh, we can do it either way. I thank you for your time and attention. Thank you very much, Counsel. Case admitted. Court.