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

NOTICE: This speech-to-text record was generated from automated speech recognition, is likely to contain errors or inaccuracies, and should be verified against the recording provided by the Supreme Court at https://www.courts.nh.gov/our-courts/supreme-court/oral-argument/live-stream/2023.

Thank you very much. May it please the court. My name's Jeffrey Christensen and I represent the appellant Moj AKI Holdings. What this is is an appeal of a site plan denial from the city of Franklin for a solar array on about 10 acres of a 400 acre golf course that has been closed for some time. When Moj AKI wanted to develop a portion of this golf course for a solar array, it went straight to the planning board for site plan approval because there was no zoning concern with this proposal at all. When it brought the application to the planning board, the planning board accepted it as complete confirming that there was no zoning concern and then went through the public hearing process. Through that public hearing process, modal Accu made a couple changes to the proposal to address some of the concerns raised by the board and by the neighbors, but ultimately the application was denied. The planning board did not deliberate prior to the denial. Instead, it summarily adopted a pre-written decision. So all we have is that written decision and the comments from the planning board made during the public hearings. Did the Board staff make any recommendations or conditions to the project? There were two pre-written decisions that were submitted to the board, one granting and one denying it. The one that was adopted did not have any conditions. The one that was proposed as a possible acceptance did, but that was not the one that wasn't deliberated on? No. Um, what had happened was after the public hearing was closed, it was continued basically due to the time so that the board could then have a deliberative session at the next session. The board opened the deliberative hearing and immediately adopted the pre-petition. Was There any discussion about moving the project to a different parcel of the property? You got 96 acres here, Right? Sure. So part of the issue for a solar array and part of what was recognized by the planning board in the decision is that solar has very specific requirements for siting very specific requirements for where the trees can be and where the trees have to be cut to allow for sunlight to reach the panels and all of those. That really meant that this particular location and a golf course isn't ideal location for this because there isn't a lot of clearing that needs to be done. It's already cleared. So this location is really what was ideal for this array. Um, the written decision did not adopt or there was no discussion of any potential conditions of, Hey, can we move it here or move it there? The written decision suggested that really no solar array was acceptable. The concerns that the board raised were primarily the impact on the character of the neighborhood, which the board found depended upon having that closed golf course there for the neighbors to enjoy the view and to go walking on. And the aesthetic impact the utility poles and the removal of mature trees and replacement with new trees Are, isn't, aren't the aesthetic factors, legitimate issues for site plan review? Not in this case. And so there's every site plan regulation under RSA 6 74 44 needs to have clear definite and certain standards, and that's a higher standard than just the standard constitutional requirement. Under the vagueness doctrine, there is no clear, definite and certain standard that can be applied such that an average person would know when a solar array is or is not going to be acceptable on this property. You have to remember that solar arrays are allowed under this property. So it can't be an objection to the general How is it that they're allowed? You mentioned there was no zoning issue. Correct. But if I understand the ordinance correctly before the later amendment which regulated solar arrays Mm-Hmm. There was no mention of them. So solar arrays were not expressly referenced individually in the ordinance. Instead, because of RSA 6 72 1 Roman numeral three A, which provides that municipalities may not unreasonably prohibit solar arrays under their zoning ordinance. The city had interpreted that to allow zoning solar arrays in this zoning district and had done so with prior solar arrays in this district. And those Are the ones that are referenced in the record by maybe some of the abutters talking about the experience with those other ones? Correct. Okay. So the staff had made that determination that had never gone to an administrative appeal before the zoning board. When the planning board accepted the application as complete, they confirmed that there was no zoning problem, comments made by the planning board during the a, the public hearing such as the city needs to change its zoning ordinance to make sure this isn't allowed in the future, implicitly acknowledge that they are currently allowed. So the regulations that would have governed would have been those applicable to any s structure like setback and Yes. Fight and that kind of thing, and all lot coverage and all that general regulation. Absolutely. And all of those were completely complied with by this proposal. And if you look at the written decision adopted by the planning board, there was no mention of any zoning concern and on appeal, the city admitted in its answer to the petition that this was fully compliant with the zoning ordinance in, In the utility pole. It's necessary for any solar Array. Yes. Both the utility pole and the removal of the mature trees were things that the planning board expressly recognized in its written decision were required and necessary for any solar array. What's so unique about the pole? I don't have a picture of it. Maybe I hadn't caught it in the record, but what's so unique about the pole? Well, that's part of the dispute. This neighborhood already has utility poles. Now, the utility poles that are going to be installed, they have more equipment on them than the regular telephone pole you might see because there's more running through there. Um, they are a little bit taller, but that's not anything in the ordinance, that's not in the site plan regulations. There's no clear definite and certain standard for how tall utility poles can be. The phrase the planning board used was they had an industrial look and feel, and that's a very subjective standard, and that's not what's acceptable for a site plan regulation. If those utility poles, which the planning board acknowledged are required components for any solar array are disqualifying, then no solar array can be allowed. And that gets us back to a zoning decision, not a planning decision. The planning board is not authorized to determine which uses are or are not acceptable. Broadly Speaking, independent, independent of this application, would the moja, uh, fee owner otherwise have a right to remove these trees Under the site plan and under the development? No, Sure, nevermind the site plan. Sure. Just the person who owns the land, Yes. If they were developing it for a single family residence, for example, But if they wanted to cut down the trees Yep. And if they wanted to do that for single family residence, they wouldn't have had to go for site plan review. And these trees could have been cut down. But if they just Wanted to harvest the trees, sell the wood Subject to regular timber harvesting regulations, then yes, that's a possibility. They could essentially clear cut it Again, I, whether or not you could clear cut the entire thing under harvesting regulations and all of that is a separate issue. But yes, there's no broad prohibition on cutting down the trees on this property. For example, if a neighbor had a mature tree and wanted to cut it down, The neighbor could do that. Okay. What is the basis in the record for your statement? That the poles at issue here were absolutely required for a solar, The planning board's written decision. If you look at the planning board's written decision, and I can quote it here, there are street utility poles that we all know, and then there are more intrusive poles that are required components of solar utility systems. And that's not disputed. That's not disputed for any solar utility. You're gonna have to put in utility poles. It's, it's a utility. This neighborhood already has utility poles in it for delivering power to the residents. You're just gonna have to add a couple more, But there's, there's a notion, and I wrote down a quote here, but I didn't actually attribute it in my notes that the, the biggest concern adequately addressing poles and equipment, they've done a partial job but not a full job. Correct. So I mean, is it, is it a binary choice or is there an issue about, well, you don't need this many poles at this height, but you do need this particular type of equipment. Is it black and white like that It's black and white that you need this type of equipment? Now there could be some question about where the polls are cited Or the screening. Yep. And all of those are legitimate questions. The problem here is the general purpose provisions that the planning board relied on does not contain any of that information. There are no clear, definite or certain standards of how tall the utility poles can be, how industrial looking and feeling they're allowed to be. All of that is being decided by this planning board on an ad hoc subjective basis. We're looking at this and we just don't like how those utility poles look. So we're not going to allow any solar array. And if you look at the comments made by the planning board during the public hearing and in the decision itself, it's clear that no solar array was going to be accepted comments like, we need to change the zoning ordinance to make sure this doesn't happen again. That no solar array should be allowed in a residential neighborhood. In the planning board's written decision, it said, the board feels that this use simply doesn't fit in this neighborhood. This is a zoning decision that they're making, not a planning decision about is there enough screening or is there not enough screening? Let's say we agree with you. Sure. Rather than the builder's remedy, why don't we remand it to the board for an opportunity to address some of these concerns by way of conditions? So the board could have done that and they chose not to. The reason for the builder's remedy is if you look at the case history here, sending it back to the board and giving the board another opportunity to find an excuse that it doesn't, to deny our use, that it just simply doesn't want here is just going to make the applicant run around in circles. And that's what the court was looking at in the Dartmouth College case. If you just keep sending it back and having to keep appealing, if a board's simply not going to allow a use that it should be allowing on pretextual basis, the only remedy, the only way to protect the applicant is to grant a builder's remedy. But if we tell them that they can't do that and we send it back, can't they then do their job? They Could possibly. The question is, will they, and there's no way to ensure that the board will Well, and except the, and I think you were going here, the general provisions in the ordinance that are applicable to what the regulations have to contain, not what the application has to contain. If the board weren't applying those, what else would it be applying? There is no other provision that the board found was violated. And you're correct. Those general purpose provisions do not say, for example, all site plan applications must provide for harmonious and aesthetically pleasing development. They say the regulations must provide, The regulations must set forth the specifics to provide for that. Yeah. Is there, is there any law prohibiting a planning board for relying exclusively on the general purposes? That would be the Dartmouth College case that I referenced a minute ago. And this case really is a mirror image of that case. In the Dartmouth College case, you had a open green space that the owner planned to develop with a, in that case it was an athletic field that they were gonna replace with an indoor sports facility. Here we have an old golf course with a solar array. The planning board denied that site plan application just as here, based solely on the general purpose provisions of these of the site plan regulations without any finding that there was any technical or specific site play regulations. Right. Didn't, didn't rule file it. You cannot, the board cannot or is prohibited from applying those regulations and those concerns. There we found that the evidence was insufficient to support the board's decision. So in that case, there were the court's holding was that the general purpose provisions are affected by the specific site plan regulations. Effectively, if you satisfy all of the technical requirements of the site plan regulations, you've inherently satisfied the public purpose ordinance provisions. There were specific concerns raised during the Dartmouth College case just as here. Here you had the removal of mature trees and the feeling and industrial look of the utility poles there. There was a shadow study that now analyzed how the building would shade the nearby residential houses. Specific concerns raised in both instances, but no finding that any of the specific technical, clear, definite and certain site plan regulations were Violated. It seems to me that the end point of your argument is that the planning board here just really couldn't say anything about screening or, uh, the visual impact of the polls or how many there would be or where they would be located. Not under this, not under the site plan regulations that they currently have. If there were site plan regulations, specific technical site plan regulations that addressed this, then yes, certainly that could have been an option. But there was no finding that any of those site plan regulations that are independently enforceable were, were violated or were failed to be satisfied. What you had here were site plan provisions that are not independently enforceable on site plan regulations that the planning board used as a pretext to deny a proposal that they simply didn't wanna allow in the first place, the planning board and the city in front of the trial court said, we don't want this, the neighbors to lose the open green space that currently exists on the site. Now, if you planted more trees, if you planted taller trees, you're still going to lose that open green space. If you had a different development that was not a solar right, you're still going to lose that open green space. If that's a disqualifying factor, then the city's not allowing any development of that property and that's forcing the applicant to maintain private property as open green space without compensation. If the problem is, if the problem were simply we need taller trees, more screening, the planning board could have said that the applicant had, during the public hearing process, made changes to address the concerns of the planning board and the neighbors. But you've said they couldn't address that. They don't have the power to address that under the regulations. They could have raised it as a concern and given the applicant the opportunity to address it, the applicant had made changes to this, whether or not they were required to, to attempt to address the concerns. As often happens during the site plan review process, this may not be a disqualifying factor, but we're going to make this change anyway just to try to make people happy and try to be good neighbors. That doesn't necessarily mean that the site plan regulations change to require that change. So here, if there were a site plan regulation that were failed to be satisfied that the board that the applicant had not met, the planning board could have identified that site plan regulation, they could have made conditions upon an approval that said, you know what, 10 to 12 foot trees aren't tall enough. We need 14 foot trees. But how tall the trees have to be is nowhere in the site plan regulations. There's no way for the average person to know reading the site plan regulations, how tall the replacement trees have to be when they're first planted. I mean, obviously trees grow. Thank you very much, attorney Christensen.

You realize time, attorney Fitzgerald. Good morning, if you please the court. My name is Paul Fitzgerald of Wescott Law in Laconia. With me at Council table is Attorney Mark Wilder, also of Wescott Law, making his first appearance before the court. Thank you for your time this morning. In the time that we have this morning, the city would like to address two primary arguments and then maybe some subsidiary arguments. If there's time left over. First, I'd like to address the, uh, not reiterate the facts because I know you're aware of them, but give your, give me your, give you my view and the city's view of how those facts influenced the planning board's decision and ultimately Justice Tucker's decision at the superior court level below. And we hope, uh, we'll find favor with you as you contemplate this particular matter. Secondly, I want to talk to you about the permissible authority of the planning board to regulate or deny in the particular facts that are before you and the law that applies to those facts today. The primary issue in front of the planning board is the record shows that, as you're no doubt aware of, is the aesthetic impact of the overall project. This is a project that didn't consist of simply the routine telephone style poles that we all see going down almost any road or street in the state of New Hampshire. In this case, poles were going to have to be removed and replaced with larger taller poles with additional infrastructure on them. In this case, there were going to be multiple poles located close to the street way, uh, in this residential neighborhood. In this case, there was going to be additional equipment on those poles as well. Additionally, you have the solar array itself covering several acres of land previously a golf course now open space. Is there any dispute that this is a permitted use under the zoning? I'm sorry, judge, Is there, this is permit Hard of hearing if you could please. Sure. Is there any dispute that this is a permitted use under the zoning regulations? No. And is there any dispute that this, There is no dispute over the facts or that Fact, is there any dispute that this equipment is necessary in order to have to run that facility? The poles? No. Okay. In addition to the infrastructure that I just mentioned, there would be the solar array itself covering several acres. There would be the fencing around the solar array and the mesh over the fencing around the solar array. All of it's significantly different from open space. We don't contend that the applicant has to maintain this property as open space indefinitely into the future. We do contend that the applicant has an obligation to maintain it in a manner consistent with the countryside environment mentioned in the regulations and in the zoning ordinance itself. But Mr. Fitzgerald, do you agree that the any landowner has the right to essentially clear cut their property, cut the mature trees, That that's true, uh, within the regulations that apply to that property. And as this court has ruled on multiple occasions, the landowner is as long as they have some use under the ordinance that is, uh, feasible, viable, and it is not, doesn't constitute a taking, and we don't believe that this does constitute a taking, then they have alternatives to go forward if one particularly use is denied. Now, in this case, we could not deny it if it may meant each and every requirement of the zoning ordinance and satisfy the planning board that it fit in with the aesthetics and other requirements of good planning required under site plan. Uh, it could be built there and in fact it was, it has suggested in the court below that if this was reoriented relocated on the same premises as the court knows it's 96 acres of land, uh, then the result might have been different. But this particular plan with these particular views, particularly of the array, uh, simply didn't meet those requirements. So Was it an issue of the location of the array or I thought it was more about the polls and the screening of the polls. I think justice, the, the, the polls were the primary cause looking at the record, it would seem that the polls in there being so adjacent to the public right, right. Public right of way and street that you're correct. That was the primary concern. But there was certainly also comment about the appearance of the array itself and the screening of the array. And there was discussion that it would not be completely screened, uh, by the remaining, uh, lesser mature trees and the fencing that was going to be installed by the applicant. In this particular case, Mr. Fitzgerald, one of the Yes sir, uh, findings and rulings by the board denied the, uh, project because the character of the neighborhood relies upon allowing the public to access the property for walks and general enjoyment of the environment. You agree that a planning board can't require a property owner to allow public access to its property? Right. I do agree with that. Okay. As I, me or you? You all right. Thank you. As I see Judge Tucker's order, he, he really doesn't focus at all. In other words, the trial court, uh, doesn't focus at all upon the array itself. So that's really not what we're reviewing here. Is it It's primarily with poles. Poles and maybe some removal of trees. Yes, I would agree. Thank You. But there was discussion about the array at the low level, at the, uh, local level. Thank you. So my question before you jump back in, why was the board, if, you know, relying on the general provisions under section 4 0 1 1, which the way I read it applies to what the regulations are supposed to accomplish as opposed to 4 0 2 5, which are the site plan requirements and design specs that are laid out to inform the applicant as to what they're supposed to comply with. And the reason I ask the question is there are similar dictates in the site plan requirements that the layout of the building or the structure should be designed, adapted to fit into the topography. Some of these issues that the board was focused on. Why not just apply the site plan regulations rather than the general purpose? I understand your point. Yeah. And if one of us here today had been the one writing the decision, perhaps that would've been the outcome. But we are, as you well know, bound by the record and the board chose and the, the, uh, planning director who drafted the decision for them, chose to use the general procedures or general, uh, provisions. And that's what we're left with. But I understand your point. Thank you. In any event, uh, turning to the authority of the planning board to enter this particular decision, uh, the city, as you might, You might imagine, differs significantly from the applicant on the application of the Dartmouth decision. In that particular case, the town of Hanover had established a zone that was specifically designed for the development of college buildings and related facilities. And in, in fact, in adjacent parcels within that zone, there were exactly those types of facilities in place, large college style buildings, which are exactly what one would find in those particular types of zones. And in those particular types of constructions for the use by the college. In this particular case, we're talking about open space. We're talking about a residential neighborhood consisting of single family homes only. We're talking about something in which the installation of the poles that we have talked about earlier this morning. And the array itself would be in significant contrast to the nature and makeup of the surrounding properties. That's, uh, greatly different from what happened in the Dartmouth case. Uh, so we think that the, uh, reliance on that particular case is misplaced here, as did apparently Justice Tucker when he was reviewing the matter and stated in his order that he did not read the Dartmouth case as prohibiting the local planning boards from using the general provisions entirely. Uh, but there were some restrictions on that use, obviously, as he discussed within his, um, opinion below. Beyond that, this case is much more akin to the Tibbits endearing case where the goal of the court was to preserve a particular atmosphere if one will, or feeling That, isn't it go ahead, Chief or feeling of countryside. Uh, but in, in the during case it was a, uh, it was a town common that was being preserved from development in the, in, in the, uh, nearby environments. And in this case, we see the same type of protection going on where the city of Franklin, through its planning board, decided that it was going to protect the neighborhood around the Moul Laki property, which had been open space for many, many years. And, uh, con continue that protection forward for the benefit of the, in welfare of the surrounding properties, including In the during case the Board of Selectmen were relying on their general police powers was before the enactment of any zoning ordinance in that town. Isn't that Right? That's correct. I would agree With that. So that is a distinguishing factor. I would agree with that. Um, finally, I would simply point out that as I mentioned a moment ago, the city does not view that there was any taking in this particular process. There are multiple other uses, whether they be agricultural or residential, that this property could still be put to. And if the application were brought forward with appropriate amendments, this array would probably be allowed if the application was brought forward with modifications to the transformers, poles, closures, and other devices, whether it be lowering them, undergrounding, them providing additional screening. This particular application might have meant a different fate and might meet a different fate with reference to the request for buildings rep, uh, builders remedy. We don't see any need for that whatsoever here, simply because we think the denial was appropriate. If this court decides to overturn the decision of the lower court below, that doesn't mean that the city of Franklin acted in bad faith through its planning board or that it's incapable of following the dictates of this court any more than if you were to remand a case to a lower court, whether it be superior or district with instructions as to how the matter was to be, to proceed at that level once it was remanded back to the local court or local board. Uh, we don't think that there is any reason for a builder's remedy. We don't think there's any evidence in the record that the local planning board would not be able to accept your dictates, uh, in instruction and guidance and take the matter forward with that. So What would the issues be before the planning board if we were to reverse? If, if you were to reverse, I would assume that there would also be some instruction or guidance to the board as to precisely what had occurred that this court disagreed with, uh, and that the planning board with guidance, uh, could review and apply to any future application. Uh, if you were to reverse and the same exact application went before it, which I don't think would be the case, uh, I would assume that you might have the same result. But if you reverse and the application was amended to address some of these concerns, as I mentioned a few moments ago, I think that again, uh, the board would look at it with fresh eyes. Thank you for your time this morning. The City of Franklin appreciates it as well. Thank you very much. Counsel Case is submitted.