Mojalaki Holdings, LLC et al. v. City of Franklin

The Appellees arguments in their brief rely upon a newly manufactured zoning dispute, easily distinguishable inapposite legal precedent, and unsupported factual assertions. The Appellees fail to identify any basis for denial that does not rely upon subjective, ad hoc interpretation of inapplicable statements of general purpose. The flawed decision of the Planning Board must be overturned.

a. The Appellees attempt to distinguish applicable precedent by attempting to manufacture a zoning dispute after previously acknowledging that no zoning dispute existed.

The Appellees attempt to distinguish this matter from the Court’s consideration of a nearly identical matter in Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 504 (2018) by claiming that the proposed solar array was not compliant with zoning. See Appellees’ Brief at Page 20 (“Unlike in Trustees of Dartmouth College, this issue is completely disputed that the application complies with the specific zoning regulations”). This is a novel dispute. Previously, the Appellees admitted that the proposed Solar Array complied with the applicable zoning ordinance. See App. 312 (¶51). When the Appellants alleged that “there is no dispute that the proposed use of the Property, i.e., for solar energy projection, is permitted by the applicable zoning ordinance”, the Appellees’ responded “Admitted”. Id.

The Planning Board’s decision makes no mention of any failure to comply with the Zoning Ordinance. See App. 281-283. The Planning Board instead acknowledged that the proposal complied with the Zoning Ordinance when it unanimously accepted the Application as complete. App. 253. In fact, two other solar projects had previously been constructed in the residential zoning district. App. 254.

The Appellees cannot argue that the proposal does not meet the requirement s of the zoning ordinance. The Appellees cannot attempt to manufacture a zoning dispute to avoid the directly applicable precedent of Dartmouth Coll. b. Whether a proposed use is generally appropriate in the zoning district is not within the Planning Board’s site plan review authority.

The Appellees frequently refer to the name and statement of purpose of the rural residential zoning district to justify the Planning Board’s denial of site plan approval. This again tries to create the illusion of an issue where none exists, and instead highlights the flaws in the Planning Board’s decision.

For example, the Appellees’ attempt to distinguish Dartmouth Coll. by pointing out that the proposed construction in the Dartmouth Coll. case was in a “special district”. See, e.g., Appellees’ Brief, page 14, 17. The name of the district and whether it is “special” is immaterial. It only matters that, both in Dartmouth Coll. and here, the planning board tried to deny a proposal that was compliant with the applicable zoning ordinance. Similarly, the App ellees’ argument that RSA 672:1, III-a allows for the Planning Board to deny a site plan application to protect the public health, safety, and welfare ignores important language in the statute. See Appellees’ Brief, page 15. The Appellees’ selectively quote the statute and conspicuously omit the phrase “by use of municipal zoning powers or by the unreasonable interpretation of such powers”. Compare Appellees’ Brief, page 15 with RSA 672:1, III-a. In other words, a municipality may use its zoning powers to reasonably limit solar energy systems for the sake of health, safety, and welfare. This does not allow a municipal planning board to use its site plan review powers to deny approval to a project because it dislikes the appearance and believes the zoning ordinance should not have allowed such a use in the first place.

In connection with developing solar arrays in a residential neighborho od, members of the Planning Board opined, “The city needs to make sure that the zoning laws prevent this from happening again”. App. 266. The Appellees’ mirror that opinion by repeatedly arguing that the idea of putting a solar array with an “industrial look and feel” in a district named “rural residential” should not be allowed by the Planning Board. Whether a particular use is generally appropriate for a particular area is a zoning question, not something that can or should be decided by the Planning Board on a site plan application. Dartmouth Coll., 171 N.H. at 504. Any argument by the Appellees’ that a solar array is inherently inappropriate in the rural residential district is inapposite here and, instead, highlights the flawed reasoning behind the Planning Board’s denial.

The Appellees rely heavily on the Court’s decision in Town of Deering ex rel. Bittenbender v. Tibbetts, 105 N.H. 481 (1964). The Tibbetts decision is inapposite. Tibbetts was decided in 1964, almost twenty years prior to the adoption of the body of statutory law that governs local land use controls such as RSA ch. 674. The factual background is similarly inapposite. Tibbetts relates to a decision by a board of selectmen, not a planning board. See 105 N.H. at 482. Instead of relating to site plan review regulations, Tibbetts relates to a local ordinance, adopted under a statute repealed almost forty years ago, designed to provide “for the care, protection, preservation and use of the public * * * commons, libraries and other public institutions of the town” applied to the historic downtown area. Id. at 483 (emphasis added).

By contrast, both this case and Dartmouth Coll. relate to the decision of a planning board in the context of site plan review, to deny an application that was fully compliant with the applicable zoning ordinance, based solely upon general statements of purpose in the site plan review regulations, not upon any specific regulations. See, generally, 171 N.H. 497. While there may be some minor immaterial differences between this matter and Dartmouth Coll., it is patently unreasonable to suggest that the situation here is closer to the factual background in Tibbetts.

The Appellees, in their brief, frequently reference aspects of the proposed solar array such as the removal of some mature trees, to be replaced with trees that (when planted) are 10-12 feet high, and the installation of utility poles that are taller than the existing utility poles. See, e.g., Appellees’ Brief, page 21. According to the Appellees, these aspects “run contrary to the provisions of the rural residential district”, i.e., the zoning ordinance. Id. As discussed above, the Appellees are estopped from claiming some zoning noncompliance after the Planning Board acknowledged that the proposal was compliant with zoning, and the City admitted it in the proceedings before the Trial Court. See App. 253, 312 (¶51).

The Appellees do not, however, identify any specific provision of the Site Plan Regulations to support denial of site plan approval on the basis of the appearance of utility poles, the removal and replacement of trees, or any other aesthetic factor.

1 The only provisions of the Site Plan

Review Regulations that are ever cited are sections 402-1, C.2, 3, and 8. 2 See App. 108-09. The relevant language begins, “These regulations shall provide for and require…” not “all site plan applications must provide for” or “any proposed development must provide for” or any other language that makes these provisions directly applicable to a site plan application. As discussed in the Appellants’ Brief, and in the Dartmouth Coll. decision, site plan review regulations effect their general purposes through the specific, technical requirements contained therein. See Dartmouth Coll., 171 N.H. at 509-10. If the City fails to enact regulations that sufficiently effect the general purposes, that is not a basis for denial of any particular application for site plan approval.

Site plan review regulations are required to “[s]pecify the general standards a nd requirements with which the proposed development shall comply, including appropriate reference to accepted codes and standards for construction”. RSA 674:44, III(c). “Generally, a municipal ordinance must be framed in terms sufficiently clear, definite, and certain, so that an average man after reading it will understand when he is violating its provisions”. Town of Freedom v. Gillespie, 120 N.H. 576, 580 (1980). There is no “clear, definite, and certain” objective standard for when a solar development is sufficiently “harmonious and aesthetically pleasing” as required by Section 402-1, C.2. See, App. 108. For example, the Appellees identify no specific standard as to how high a utility pole may be before it becomes aesthetically undesirable. No average person, reading

Section 402-1, C. 2 would be able to understand when a utility pole constitutes a violation. See Town of Freedom, 120 N.H. at 580. Similarly, there is no “clear, definite, and certain” standard to determine when mature trees are sufficiently protected for Section 402-1, C.8. The Appellees do not identify any provision of the Site Plan Review Regulations providing standards for determining what number or percentage of mature trees may be removed, or whether the replacement plantings are sufficient. Without such standards, no average person is able to determine whether a proposed removal or replacement of trees would violate the site plan regulations.

The Appellees’ comparison to Star Vector Corp. v. Town of Windham, 146 N.H. 490 (2001) is misplaced. In Star Vector, the Court affirmed the denial of site plan approval based on the risk of lead contamination into the surrounding environment.

3 Id. at 493. The Star Vector decision does not identify or state the subject provision of the relevant site plan review regulations at issue in that case. It is unknown whether the planning board relied upon a technical requirement or only a general statement of purpose. Regardless, whether lead is toxic or harmful, and in what quantities, can be objectively determined based on accepted standards, as required by RSA 674:44, III(c). There are no such standards for whether a utility pole is too tall to be aesthetically pleasing or how many trees must be protected to ensure a rural atmosphere.

“A planning board’s decision “must be based upon more than the mere personal opinions of its members”. Dartmouth Coll., 171 N.H. at 513. “[T]he board may not deny approval on an ad hoc basis because of vague concerns.” Ltd. Editions Properties, Inc. v. Town of Hebron, 162 N.H. 488, 497, (2011). “The vagueness doctrine, originally a due process doctrine, applies when the statutory language is unclear, and is concerned with notice to the potential wrongdoer and prevention of arbitrary or discriminatory enforcement.” Montenegro v. New Hampshire Div. of Motor Vehicles, 166 N.H. 215, 221 (2014) (internal quotations omitted). When the Planning Board attempted to apply statements of general purpose as enforceable regulations, vague provisions such as providing for “harmonious and aesthetically pleasing development” and protecting mature trees must, inevitably, be based on ad hoc, subjective decision making to determine when the proposed solar array is aesthetically pleasing enough and when the mature trees are sufficiently protected. The Appellees’ position puts the Planning Board in the position of arbitrarily enforcing a vague standard. See Montenegro, 166 N.H. at 221. In fact, the Appellees, in their brief, never dispute that the Board’s decision was based on ad hoc, subjective reasoning.

The only p ossible standard that could be objectively applied, based on the provisions of the Site Plan Review Regulations cited by the Planning Board, is that no removal of mature trees is acceptable, no new utility poles may be installed, and the solar array must be completely screened from view at all angles.

For example, the Planning Board cited the provision requiring the Site P lan Review Regulations to provide for the protection of mature trees. See App. 109, 282-83. Any application that allows removal of some mature trees must be based on an established standard (Appellees fail to identify one) or ad hoc decision making. The only objective standard that can theoretically be applied under the cited provision is that no mature trees may be removed. While this interpretation may not prevent all potential development of the Property, it would prevent any development of those portions of the Property that were currently wooded. This would impermissibly require the Appellants to maintain those portions of the Property in the current, undeveloped condition, for public benefit such as preserving the scenic views, without proper compensation. See Dartmouth Coll., 171 N.H. at 510.

The Appellees’ reliance upon Webster v. Town of Candia, 146 N.H. 430 (2001) is inapposite. In Webster, the applicant was denied approval to remove trees from a public roadway so that it could be reclassified. Id. at 433. The Court held that “failure to take discretionary affirmative action that would arguably have increased the value of a landow ner's property does not [constitute a taking].” Id. at 438. The reclassification of public highways is different than site plan approval. The Appellants, here, are not asking for “discretionary, affirmative action” from the City. The Appellants are asking for approval to develop their Property for a use permitted by zoning. A finding that prohibits any development that requires the removal of mature trees or that impairs the public’s view and ability to access the Property for walks may constitute a taking. See id.

P

THE REC

The Appellees argue that the Planning Board “did not outright deny any solar development on the property”. See Appellees’ Brief, page 27. While the Appellees acknowledge that one or more Planning Board members opined that solar arrays should not “ever be allowed in a residential area” and that “The city needs to make sure that the zoning laws prevent this from happening again”, see App. 266, the Appellees argue that such statements cannot be imputed to the Planning Board as a whole. See Appellees’ Brief, page 20.

The written decision of the Planning Board, however, can be imputed to the Planning Board as a whole. That written decision states, “The Board feels that this project just simply does not fit into this neighborhood…” App. 283 (A.iii) (emphasis added). Similarly, before the Trial Court, the Appellees stated that the Planning Board “didn’t want to see that green space replaced with an industrial field solar array. If the developer had come in with a plan for a residential development … then I think we might have had a much different result here.” Tr. 16:23-17:4. At all prior stages of these proceedings, the Appellees have expressly indicated that no proposal for a solar array on this Property would have been approved.

If, as the Appellees now argue, a solar array would have been approved if it had simply had more visual screening, the Planning Board could have granted conditional approval, requiring additional screening. See Bayson Prop., Inc. v. City of Lebanon, 150 N.H. 167, 175 (2003). The fact that the Planning Board instead denied the proposal outright belies the argument that it could have been approved with a few adjustments. Instead, the appearance and removal of mature trees appears to be a pretext to allow the Planning Board to deny a use it did not approve. Similarly, the App ellees acknowledge that mature trees need to be removed for the development of a solar farm, and that the new utility poles were inherently objectionable. See Appellees’ Brief, page 21. See also App. 282 (§b(i)) (acknowledging that the utility poles were “required components of solar utility systems”). If required components of solar utility systems are impermissible, then solar utility systems as a whole are impermissible.

The proposal that the Appellants should have instead proposed a residential development instead of a solar array further highlights the Planning Board’s goals here. The Planning Board did not “want to see that green space replaced with an industrial field solar array”. The Planning Board, however, does not have the authority “to deny a particular use simply because it does not feel that the proposed use is an appropriate use of the land.” Dartmouth Coll., 171 N.H. at 504. (internal quotations omitted) Whether a particular use “is appropriate is a zoning question.” Id. This use was permitted by zoning. See App. 312 (¶51).

The Appellees cannot argue that the proposal does not comply with the applicable zoning requirements after they expressly admitted that it does. See App. 253, 321 (¶51). The Appellees’ fail to identify any clear, definite, certain standards or objective basis to support denial of site plan approval by the Planning Board. Instead, the Board relied upon ad hoc, subjective opinions to deny site plan approval because they felt that a solar array should not be built on Property and instead desired to protect the neighbors’ existing view of and ability to go walking on the open space of the Property.

For the reasons stated above, and in the Brief of the Appellants, Mojalaki Holdings, LLC and GSSG New Hampshire, LLC respectfully request that this Honorable Court: (a) reverse the Trial Court’s decision of February 6, 2022; (b) grant the Appellants a builder’s remedy approving the Project subject to the conditions that had been identified by the City’s staff; and (c) grant such other and further relief as is just, equitable, and appropriate.

P ursuant to Supreme Court Rule 26(7), I hereby certify that every issue specifically raised herein (a) has been presented in the proceedings below and (b) has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed pleading. I further hereby certify the within brief complies with the word limitation in Supreme Court Rule 16(11) of 3, 000 words. This brief contains 2, 981 words.

Respectfull y submitted, MOJALAKI HOLDINGS, LLC and

By and thr ough their attorneys,

Date: Oct. 31, 2022 By: /s/Jeffrey C. Christensen, Esq.___________ Philip M. Hastings (NH Bar 10003) hastingsp @cwbpa.com Jeffrey C. Christensen, Esq. (NH Bar #265308) christensenj @cwbpa.com Cleveland, Waters and Bass, P.A.

Two Capital Plaza, P.O. Box 1137 Concord, NH 03302-1137 (603) 224- 7761

I hereby certi fy that the foregoing document is being served electronically upon Paul T. Fitzgerald, Esq., Wescott Law, PA, through the Court’s electronic filing system, in compliance with Supreme Court Rule 16(3).

By:/s/Jeffrey C. Christensen, Esq.________ Jeffrey C. Christensen, Esq.