Appeal of Town of Hollis

By way of a Letter of Denial issued on September 28, 2022, the Town of Hollis Planning Board (the “Town” and/or “Appellant” hereafter) not so much denied the application but rather refused to accept the application as complete because said Appellant held the application, as presented, offended

various provisions of the Hollis Zoning Ordinance (“HZO”).

The Applicant timely appealed the Town’s denial to the HAB on

October 14, 2022.

After a Hearing before the HAB and Hearing Memoranda were submitted by both parties, the HAB found in favor of the Appellee holding that the Appellant’s grounds for refusing to accept the application as complete involved a substantive review that went beyond the scope of a

‘completeness review.’

The Appellant filed a timely Motion for Reconsideration arguing that the Design Review Phase should involve some level of substantive review and not be reduced to a mere administrative task. The HAB denied the Motion for Reconsideration stating that it did not overlook or

misapprehended the facts or law that would result in an error.

The Appellant then filed a timely Rule 10 appeal to this Honorable Court on or about June 23, 2023. The Appellee then filed a timely Motion for Summary Affirmance on July 11, 2023, to which the Appellant filed a timely Objection on July 21, 2023. The Appellee’s Motion for Summary Affirmance was denied and this Honorable Court accepted this case by way

of an Order issued on August 18, 2023.

The Appellee consists of Toddy Brook Investments, LLC' (“Toddy Brook”) and Raisanen Homes Elite, LLC? (“Raisanen’’), both of which are New Hampshire limited liability companies. Raisanen is the owner of certain real property in Hollis, New Hampshire known as Tax Map 41, Lots 25, 28

and 44 (hereinafter referred to as the “Property”).

The Property is zoned Residential and Agricultural (“R and A”). CR

at P. 3.

The Appellee proposed to build a Housing for Older Persons subdivision on the Property (the “Proposal’”). CR at P. 11. The Board first discussed the Proposal during a conceptual discussion on May 19, 2020, and

again on June 2, 2020. CR at PP. 11, 23.

The Proposal, as initially presented, consisted of 50 single-family residences for Older Persons on 36.09 acres of land. CR at P. 11. Notably, the Town Planner, Mark Fougere, went on record early on stating that the “property contains steep slopes, many of which exceed [a] 25%” grade. CR at P. 11, Lines 224-25. Also notably, is that as early as May 19, 2020, concerns over the local water supply becoming overtaxed were being raised. CR at P. 13, Lines 279-80; See also generally the abutter comments of June

2, 2020, beginning CR at P. 28, ef seq.

' Toddy Brook’s principal place of business is 11 Lamb Road, Nashua, New Hampshire 03061. ? Raisanen’s principal place of business is 11 Lamb Road, Nashua, New Hampshire 03061.

After a general discussion and input from the public, the Appellant moved the Proposal forward to the Design Review phase. CR at P. 30. At the June 2, 2020, meeting, the Appellee’s representative requested from the Appellant a non-exclusive list of tests and other necessities, which would be required before the Appellant could approve the Proposal. Id. at Lines 265- 66. Among these tests included an Environmental Hazard Analysis, Wildlife Habitat, Visual Impact, Historic Significance, Traffic, Stormwater, and Fiscal among others that could be added. CR at P. 31. Additionally, the Appellant raised concerns over well water (CR at P. 31, Lines 272-74), traffic (Id. at Lines 276-78), grading (Id. at Lines 280-87), all of which the Appellee’s representative (Mr. Branon) stated “...the Design Review Phase is the best way to address all concerns raised.” Id. at Lines 289-90 (emphasis added). The remainder of the meeting addressed concerns over the requested density

and waivers that would be required. CR at PP. 31-32.

The Appellee submitted the Proposal’s Design Review application on or around July 27, 2020, and the first meeting occurred before the Appellant on August 18, 2020. CR at P. 45. At the beginning of the meeting, it was noted by the Town Planner that the Proposal will be subject to a “detailed water study” as the site abuts a “sensitive environmental area.” CR at P. 45,

Lines 287-89.

The Design Review Phase was tabled and continued at the September 1, 2020, meeting (CR at P. 45), only to be tabled again at the request of the Appellee. CR at PP. 55, 64. The Appellee then appeared again before the Appellant on November 4, 2020, but was removed from the agenda to give the Appellee time to create a road design that could be agreed upon with the Town Engineer since there was disagreement over sight distances and

grading. CR at PP. 76-79.

The Appellee brought the Proposal before the Appellant again on January 5, 2021, but the issues over the proposed road and its need for excessive waivers resulted in the Proposal being tabled once again. CR at PP. 93-96. The Appellee assured the Appellant that the Proposal would not require any waivers. CR at P. 112, Lines 55-57. However, the Appellee would eventually still submit an application involving a waiver. CR at P.

658, Lines 346-49.

Throughout the remainder of 2021, the Proposal was either tabled at the request of the Appellee or because the Appellee did not have the information requested by the Appellant. See generally all the 2021 Meeting Minutes (CR at PP. 93-99, 111-17, 153-162, 166-174, 182-189, 195-200,

203-09, and 235-244). The Appellant did conduct a Site Walk on March 27, 2021 (CR at P. 190), and again on July 26, 2021, with a representative from the New Hampshire Department of Transportation (“NHDOT’’) present. CR

at P. 227.

The Appellant made it clear that it would not review the Proposal in “incremental disclosure.” CR at P. 167, Lines 48-52. Additionally, there

were still concerns over water well testing. CR at PP. 167-68, Lines 82-85.

Among the remaining issues of concern discussed at the meeting of August 17, 2021, it was noted that “[a] fudl water study will be required” prior to accepting the application for final review. CR at P. 223-24, Line 232-261 (emphasis added). Also, among the concerns remaining were density (CR at

The next meeting took place on September 21, 2021, where many of the same concerns continued to be raised by the Appellant such as waivers (which the Appellant requested that there would be none), the natural

landscape being excessively altered as 18.5 acres would be re-graded with over 30 feet of soil removed of the 36-acre site, and concerns over the density in general. CR at PP. 240-41, Lines 290-349. The Appellee assured the Appellant that the “final design would be based on all studies being

completed.” CR at P. 242, Lines 366-67.

Specifically, when the Appellee’s engineer asked for “guidance, ”

Town Planner Fougere stated the following:

“|..the town has a Rural Character Ordinance, a zoning ordinance that covers the entire town.

There is a zoning ordinance relative to projects of housing for older persons, specific general standards. In those sections: “All housing for older persons shall conform to the following standards.” These are in addition to anything else, such as Rural Character Ordinance.

The term “Rural Character” is used throughout the town ordinances and regulations, but it needs to be used in context.”

CR at P. 241, Lines 340-49 (emphasis added).

In response, the Appellee’s engineer assured the Board that prior to any Final Review phase the Appellee would make sure that “...final design would be based on all studies being completed...” because “[s]tudy results could have an impact on final design.” CR at P. 242, Lines 366-67. Furthermore, the Appellee’s engineer stated that he “[wJould arrange for all studies to be done” then go to final review. Id. at Lines 383-84. Design Review was then officially completed by vote on September 21, 202]. Id. at

Lines 386-87.

The Appellant’s concerns were reduced in a letter, dated September 28, 2021, addressed to the Appellee (CR at P. 258), which can be summed up as the Proposal did not adhere to HZO XXI.A.1.g because the plan requires a “contiguous area of disturbance in excess of 18 acres with fill areas reaching 16 feet and cut areas exceeding 30 feet, ” too many waivers would need to be requested relative to sight distances, and density concerns due to the steep

slopes and difficult terrain of this specific lot. Id.

After nearly a year since the Design Review phase ended, the Appellee presented the Proposal for acceptance to proceed to Final Review on

September 20, 2022, and this version included a revision reducing the density to 40 single-family houses for Older Persons instead of the 50 proposed prior.

CR at PP. 658-63.

As the September 20, 2022, meeting began Town Planner Fougere stated for the record that the area where the dwellings are to be constructed would consist of “...approximately 14 acres{, ]...this area has varying terrain and steep slopes...[, and]...the entire 14 acre +/- building area will be re- graded with cuts reaching 30 feet.” CR at P. 658, Lines 329-32. Furthermore, there is “a 13-foot retaining wall that is necessary to address the proposed cut and fills to site the homes.” Id. at Lines 333-34. Notably, such “ * ., .extensive grading was not present with the three existing Housing for

Older Persons developments in the community.” Id. at Lines 332-33.

Of great concern to the Appellant was the lack of a full water study, which was requested throughout the conceptual and Design Review process, as noted above, and mentioned at the September 20, 2022, meeting. CR at P.

659, Lines 383-87 and 397-99.

Ultimately, the Appellant voted not to accept the application as

complete. CR at P. 659, Lines 408-14.

The Appellant, in its findings of fact, cited a failure to comply with

Hollis Zoning Ordinance (the “Ordinance’”’), Section XXI.A.1.g which states:

“All housing for older persons shall conform to the following standards:

The design and site layout of the development shall emphasize the rural character of the Town, maximize the privacy of the dwelling units,

provide for the separation of parking and living areas, and consider such factors as orientation, energy usage, views.”

App. II at P. 9.

The Proposal, as presented, requires a substantial alteration to the terrain due to the steep slopes and would require “extensive grading” of the land to meet the needs of the Proposal. CR at P. 661, Lines 488-90. Other concerns were the 13-foot retaining wall that would be required for a wetland buffer. CR at P. 661, Lines 492-94. Indeed, the Town Planner points out to the Board that “‘...the only way to construct this density on this type of terrain is to re-grade it...and we are looking at 30-foot cuts, a 13-foot retaining wall,

14 acres of disturbance.” Id. at Lines 524-30.

The above findings of fact were best articulated by Board Member

Hardy who said: “...that as we reflect on the area that has to be leveled, there is no way that that [sic] can preserve the natural character of that particular landscape and landform. Right now it’s very steep, it’s a dissected outwash plain associated

with the aquifer — so it’s not as if houses are to accommodate that number, The character

would be leveled, and would no longer reflect the natural land. We also don’t know what the

impact of the changing natural character is going to be in terms of drainage, and the impact on the Brook, and the natural habitat there. The impact would spill over from the site onto adjacent sites in that respect. [I] cannot see that this development does anything to preserve the actual, natural character of the land.”

CR at P. 662, Lines 532-40 (emphasis added).

Put another way, Board Member Hardy’s comments can be summed up as the Proposal manipulates and re-grades the land form to meet maximum density rather than a design that works with the land in an attempt to preserve natural character, landscape and land form, indeed, the “land was being

manipulated to meet the number of units.” CR at P. 662, Line 569.

Additionally, Board member Peters stated that the “...application does

not meet the natural character requirement of g — the amount of cut and fill...[t]hat is not natural character of the land at all; that is forming the land

to meet their needs.”” CR at P. 662, Line 575-77.

To that point, it cannot be said enough that a Housing for Older Persons project is not permitted ‘by right.’ The Property is zoned Residential & Agriculture, which does allow for single family homes ‘by right.’ This

sentiment was also duly noted on the record when member Petry opined that;

“.. this is not the only use that is allowed per the ordinance for this site. This is one choice. They could have done a HOSPD’, they could have done a conventional design, they could have

done a single family-home layout. So we are not

based on the layout of this site. They could have

proposed something different that would not

have required as much alteration of terrain.

This is not the only choice they have. [I] would suggest that they go back to the drawing board, and re-think what they have submitted to the Board, per item g. [Furthermore, adding] that it is frustrating, because we’ve talked about the Appellee coming back to the Board with an alternate plan for a year, and pretty much got ignored. All the Appellee did was take out ten units. It’s still the same layout. And we have significant issues, now, with another subdivision

> HOSPD refer to Hollis Open Space Planned Development. HZO, Section XX. However, said section is otherwise irrelevant to this matter. which was approved — it was basically approved the same way.’ Access, parking, water issues, drainage. So we have already seen one site where this particular layout has not worked properly.”

CR at P. 662, Lines 550-61 (emphasis added).

The Appellant concluded that the Appellee did not provide a sufficient detailed water study as requested by the Appellant. The Appellant requested such water study numerous times as indicated in the Certified Record. The Board had authority to request these tests pursuant to the HZO Section

XLA.4.c. App. II at P. 8.

The only information that was submitted to the Board relative to water was a two-page report produced by Skillings & Sons, LLC, that provided data from two four-hour tests involving two hydro-fracked wells. CR at P. 503. The data from those tests was deemed insufficient (CR at P. 659, Lines 383- 84; CR at P. 661, Lines 496-98), however, the Appellee, despite multiple

requests by the Appellant for a detailed water study over the several years that make up these preliminary meetings, the Appellant was never given thorough

data to be reassured that the water supply was sufficient.

Lastly, the Proposal did not meet the requirements of Hollis Subdivision Regulations Section IV.7, which requires a mandated sight distance on public and private roads. Although the Proposal includes private roads, units 4, 20, 22, 24, 30, 31, 32 do not meet the requirement for a sight distance of 200 feet between two points as stated in Hollis Subdivision

Regulations Section IV.7.H.3.k. App. II at P. 11.

The Appellee appealed the Appellant’s ‘non-acceptance’ to the HAB where the Appellant argued that the Proposal offended the HZO from the

outset for all the reasons stated above.

Specifically, that the Appellee failed to comply with the HZO’s

mandate that Housing for Older Persons projects “...shall emphasize the rural

character of the Town, maximize the privacy of the dwelling units, preserve the natural character of the land, provide for the separation of parking and living areas, and consider such factors as orientation, energy usage, and

views.” CR at p. 664 (emphasis added); See also App. II at P. 9.

Second, that the Appellee failed to supply an adequate water study as requested multiple times by the Appellant. CR at PP. 664-65; See also App.

II at P. 8.

Finally, third, that the Appellee failed to correct the sight distances on

several driveways in the Proposal. CR at PP. 665; See also App. II at P. 11.

The appeal was heard by the HAB in February of 2023 and the HAB issued its first decision in favor of the Appellee on April 17, 2023, (“Order 1”) holding that the Appellant’s reasoning for its refusal to accept the Appellee’s application were too substantiative for the Design Review Phase. App. I at PP. 85-88. The Appellant filed a Motion for Reconsideration arguing that, inter alia, the Appellant was not only within its right to consider the aforementioned substantive matters but it is customary that some level of substantive matters are addressed at the Design Review Phase. App. I at PP.

90-99.

The Appellee filed a timely Objection to the Appellant’s Motion for

Reconsideration. App. I at PP. 108-13.

{9

The Appellant’s Motion for Reconsideration was denied on May 25, 2023 (“Order 2”) with the HAB concluding that there was no showing that

the HAB overlooked or misapprehended the facts or law. App. I at P. 114.

This Rule 10 appeal followed and survived a Motion for Summary Affirmance filed by the Appellee on July 11, 2023 (App. I at PP. 115-122), which was DENIED after the Appellant Objected to said Motion on July 21, 2023. App. I at PP. 123-128. Said denial, as well as acceptance of this

matter, was issued on August 18, 2023. App. Tat P. 129.

Summary of Argument

Despite the lengthy recitation of facts the issue presented is narrow, however, with broad implications. Essentially, it is the Design Review Phase

that is on trial.

In sum, the HAB concluded that the Appellant’s reasoning for refusing to accept the Appellee’s application was that said reasoning was too substantive for the Design Review Phase and that the Design Review Phase is nothing more than an administrative task to ensure ‘application

completeness.’

We contend that it is not only appropriate for a planning board to consider some level of substantive review to ensure zoning compliance but also that the secondary materials submitted with this brief demonstrate that Town Planners are directed and advised to consider substantive matters to

some degree.

While it may not be clear to what extent such substantive matters may or may not be given consideration during Design Review we contend that it is, nonetheless appropriate to consider such matters and should be on a

factual case-by-case determination.

Here, as the record demonstrates that the Appellant had been engaged in discussions with the Appellee over the course of years and the Appellant had remained consistent throughout the conceptual phase and the Design Review Phase that the proposed application offended the HZO and the Appellee made no significant changes to address these concerns prior to the

application’s submission for Final Review.

Argument

reverse or modify a decision except for errors of law or if the board is persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable.” RSA 679:9, II (Supp. 2022). “[T]he burden of proof shall be upon the party seeking to set aside any order or decision of” the planning board “to show that the order or decision is unlawful or unreasonable.” RSA 677:6 (2016); See RSA 679:9, I (“Appeals to the [HAB] shall be consistent with appeals to the superior court pursuant to RSA 677:4 through RSA 677:16.”). “All findings of” the planning board “upon all questions of fact properly before the [HAB] shall be prima facie lawful and

reasonable.” RSA 677:6; see RSA 679:9, I

The Supreme Court’s review of the HAB’s decision is governed by RSA chapter 541. See RSA 679:15 (Supp. 2022) (“Decisions of the [HAB] may be appealed to the Supreme Court by any party in accordance with the provisions of RSA 541 as from time to time amended.”). The HAB’s decision “shall not be set aside or vacated except for errors of law, unless the Court is satisfied, by a clear preponderance of the evidence before it, that

such order is unjust or unreasonable.” RSA 541:13 (2021).

II. The HAB erred err by denying Appellant’s Motion for Reconsideration, which argued that the Appellant’s refusal to accept the application as ‘complete’ was proper because the application was not complete and the Design Review Phase should involve some level of substantive consideration.

The Appellant had discussed with the Appellee several issues that it

had with the application, as presented, over the course of years.

Among the several issues of concern discussed over the entire life of the application it was noted that the Appellant wanted a full water study to be completed prior to accepting the application for Final Review, certain sight distances corrected relative to life and safety concerns, and consistently expressed several concerns over the preservation of the natural character of land as required by HZO Section XXI.A.1.g. CR at P. 664-65; See also App.

If at P. 9.

The HAB concluded that the aforementioned concerns of the Appellant were too substantive and not appropriate grounds for refusing to

accept the application. App. I at PP. 85-9.

The Appellant, on many occasions throughout the conceptual and Design Review Phase, concluded that the application, on its face and as

presented, offended the HZO.

Specifically, the Appellant refused to accept the application because 1) the Appellee failed to comply with HZO Section XXI.A.1.g, which requires a proposed Housing for Older Persons design to preserve the natural character of the land, 2) the Appellee did not include a comprehensive water study as repeatedly requested by the Board, and 3) there were sight distance

deficiencies. CR at PP. 664-65; App. I at P. 85.

Moreover, it is readily apparent from the Certified Record that the Appellee was not going to alter the application to accommodate the Appellant’s concerns despite many requests over the period of years.

Nonetheless, the HAB concluded that the above reasons for refusal to accept the application were too substantive and were beyond the scope of a

Order I opines that the Design Review Phase is “... when an applicant first submits enough information for the planning board to make an informed decision and then, statutory deadlines are triggered before the final decision is due...and that applications...are deemed to be complete but are ultimately

found to be informationally deficient in some fashion.” App. I at P. 86.

Order I concludes that the Appellee “...completed the subdivision application and checklist provided by the Town...” and that “...[while] the Planning Board disagrees with certain elements of the project and wants additional — or different — information, that is not a basis to reject the project

at the completeness stage.” Id.

Consequently, we contend that the HAB erred as Order I has reduced the Design Review phase to nothing more than administrative task of assuring certain items have been submitted and, furthermore, the application was not

complete.

The Town’s Design Review process, as outlined in its application, allows a Appellant to require studies that involve water, sewers, traffic,

schools, fire, etc. CR at PP. 488, et seg. (Application Checklist). Notably, there is a so-called ‘catch all’ section of the Application Checklist that is relative to any “additional information felt necessary by the Appellant.” CR at P. 491. The Appellee stated under said section that “[e]verything requested to date is provided.” Id. However, given the Appellant’s insistence on a proper water study, which was never properly addressed to the Appellant’s satisfaction, the Appellee did not, in fact, provide “everything requested, ”

and, thus, the application was not complete. Id.

The Design Review Phase is a completeness review to ensure

compliance with the Hollis Regulations and the HZO. App. III at P. 4.

The HAB’s Order I concludes, citing to Administrative Rule Hab 201.32 (e), that there was no misapprehension of fact or law cited to in the Appellant’s Motion for Reconsideration identified to warrant granting said

Motion. App. [at P. 114.

We respectfully disagree and the HAB’s misapprehension is that the Appellant’s concerns with the application were appropriate grounds for its refusal to accept the application as complete because the application was not

complete and the Design Review Phase is more intensive than the conceptual phase. As such, the Design Review Phase should not be reduced to merely an

administrative ‘checklist.’

The Design Review Phase is outlined in RSA 676:4, II (b) and (c). Here is the text in full (emphasis added):

“I. A planning board may provide for preliminary review of applications and plats by specific regulations subject to the following:

(b) Design review phase. The board or its designee may engage in nonbinding discussions

with the applicant Beyond conceptual and general salut vhich in ny alve ATS nore specific design

the 2 desien review BnESE may proceed only after identification of and notice to abutters, holders of conservation, preservation, or agricultural preser vation restrictions, and the a public

board may daveraana that the design review process of an application has ended and shall inform the applicant in writing within 10 days of such determination. Statements made by planning board members shall not be the basis for disqualifying said members or invalidating any action taken.

(c) Preliminary review shall be separate and apart from formal consideration under paragraph I, and the time limits for acting under subparagraph I(c) shall not apply until formal application is submitted under subparagraph I(b).”

The statute does not give great detail or specifics for what a Design

Review Phase should entail but notes a great deal of discretion to a planning

board in what they can require of an Applicant.

According to the Planning Board Handbook, which is relied upon by Town Planners and published by the New Hampshire Department of Business and Economic Affairs, “/t/he objective of design review is to provide the board with an opportunity to understand what is being proposed, and for the

applicant to understand the concerns of board members, abutters, and the

general public. Design review is intended to assure that the essential

App. Ill at PP. 1-2.

As stated in the Trial Memorandum by the Town of Hollis (the ‘“Memo’’), the Appellant made it abundantly clear on multiple occasions that

the Application as presented — and from its inception — was not compliant with the Hollis Zoning Ordinance (“HZO”) and its corresponding Regulations, as well as lacking an adequate water study. See generally App. I at PP. 64-72; See also App. Il at P. 2 (“/u]sing the design review process allows an applicant to understand the board’s key concerns and to evaluate

the problems to be faced in designing an approvable project.”).

“During this [Design Review] phase, the planning board should inform

egulations that must be

tion. Depending on the complexity

y involve an assessment of the impact of the

of the proposal, these studies may proposal on water, sewers, roads, traffic, schools, fire and police protection,

or other municipal services.” App. III at P. 2.

As opined by the Appellant, and acknowledged by the HAB, there is a legitimate concern relative to adequate water supply. App. [at P. 87 (“/tJo the extent that the Town relies on the fact that the Property is located within the Aquifer Protection Overlay Zone as a basis for requiring a full water use study, it is clear that issues surrounding a proposed development’s water

supply and aquifer protection measures are important considerations for a planning board...”). However, the HAB then states that such a consideration

is outside the “administrative task” of a “completeness review.” Id.

This Appellee’s application is for a large project that will require a water supply of sufficient quantity and quality to serve 40 homes and the Appellant requested — repeatedly — for some verification that water would not

be an issue prior to accepting this application.

Access to the water supply and quality analysis was readily available, as the applicant had already drilled wells at the site, however, provided an insufficient report. CR at P. 503. The Appellant informed the Appellee that said data was insufficient. CR at P. 659, Lines 383-84; CR at P. 661, Lines

496-98.

The Appellant fully recognizes that the New Hampshire Department of Environmental Services (“DES’’) still has the final word as to the water quantity and quality, however, DES also presumably signed off on the neighboring property that is now allegedly experiencing water issues. CR at

Meetings/Deliberative Sessions that bear the brunt of the taxpayers’ ire when their wells run dry —not DES. As such, the Appellant’s insistence on the

detailed water study is a reasonable ask and is being asked for at a reasonable

time - before proceeding with Final Review.

Regardless, a comprehensive water study is required by the HZO because the specific site for this project impacts the Aquifer Protection

Overlay Zone. App. II at P. 8; See also CR at PP. 664-65 (Findings of Fact

#2).

Indeed, “[a]n application should not be accepted as complete by the

planning board if it doesn’t comply with local regulations unless a variance

and/or waivers have been submitted and granted. If an applicant has

provided all the necessary materials, studies, or reports required in your application form and/or checklist, then the application must be accepted as

complete.” App. III at P. 4 (emphasis added).

Here, the Appellee did not provide ‘...all the necessary materials, studies, or reports required’ since the Appellant had requested the water study

and highlighted the sight-distance issues relative to seven (7) driveways that did not meet the required site distance requirements. CR at PP. 664-65. Furthermore, the Appellant requested that the plan be altered in an effort to preserve the natural character of the land in the face of the potential disturbance of over fourteen (14) acres, thirty (30) foot cuts, and fill areas 16

feet deep. CR at 664-65.

Hence, the application was not complete and the Appellee never once ‘budged’ on any of these requests over the course of a year and then after another year of silence reappears with the same noncompliant incomplete

plan.

To that point, it is important to remember that the Design Review Phase for this project dates back to July 27, 2020 (CR at P. 49, et seq.), when

it began and it ended on September 21, 2021 (CR at P. 242).

Yet, the Final Review application was not submitted until August 22, 2022, nearly a year after the Design Review Phase was concluded, and this significant lapse in time was of the Appellee’s own doing. CR at PP. 483, et

seq.

The Appellee had nearly a year to modify the final submission to address the Appellants’s concerns — concerns that the Appellee was well aware of. However, the Appellee instead knowingly presented an incomplete final plan that, on its face, did not comply with the HZO, the Regulations, and did not contain all the studies that were requested. CR at

PP. 657-63.

“The regulations should also reserve the right to require additional

studies if, after initial review and public comment, the board determines that

a decision cannot be made without such information.” App. II at P. 5

(emphasis added).

Here, the Appellant made it clear that they needed certain questions answered or plans altered for this application to be acceptable in the first instance and for the Appellant to make an “informed decision.” CBDA Dev.

v. Town of Thorton, 168 N.H. 715, 721-22 (2016).

While the Town Planner’s function is to perform a “...completeness review [and]...to assure the planning board that the application meets the

criteria and contains all of the items required by the regulations...[o]nly the planning board can decide if the application meets its criteria...”. App. III at

P.7.

The HAB cites to CBDA Dev. V. Town of Thorton, where this

Honorable Court stated that “...determining whether an application is “complete” is an administrative task by which a planning board ensures only that the applicant has provided “sufficient information... to allow the board to proceed with consideration and to make an informed decision” as to whether the proposed development satisfies basic requirements.” 168 N.H.

715, 721-22 (2016).

CBDA, and the HAB, also cite to Accurate Transp., Inc. v. Town of

Derry, where this Honorable Court stated that “[a]ccording to the plain language of RSA 676:4, I... accepting jurisdiction of a site plan application is merely a procedural prerequisite to a planning board’s consideration of the merits of an application.” 168 N.H. 108, 115 (2015). There the Court stated that the planning board, in making a determination of completeness, utilized a “Site Plan Review Checklist, ” which is similar to here, where the Appellant

was relying on the Appellee to submit a complete application, however, the application was not complete by the very terms of the Appellant’s Checklist. Important to note that, for the most part, CBDA dealt with a Fisher v. Dover' situation where the issue was whether a subsequent application differed sufficiently from the first to get around the so-called subsequent application doctrine and not so much whether an application was ‘complete.’

See generally CBDA Dev. V. Town of Thorton, 168 N.H. 715.

CBDA was not, per se, a comprehensive review of what a “completed” application involves but rather stated that a planning board needs “sufficient information... to allow the board to proceed with

consideration and to make an informed decision.” 168 N.H. at 721-22.

CBDA does state that “...planning boards are required by statute to “specify by regulation what constitutes a completed application sufficient to

invoke jurisdiction to obtain approval.”” 168 N.H. at 721.

Here, the Checklist allows the Appellant the right to request the water

study regardless of the fact that DES oversees such matters and the Appellant

"120 N.H. 187 (1980). is aware that they cannot deny a final application solely for something that

must be reviewed and approved by DES.

However, the Appellant can, nonetheless, ask for a comprehensive water study in order to assure that the water supply for the Project will not

become an issue further into the application process.

The Subdivision checklist on page 3 (CR at P. 490) can require a broad range of studies to be requested, said Checklist on page 4 (CR at P. 491) contains a provision for the Appellant to require “[a]ny other information felt necessary by the Planning Board..., ” and, as cited in the Letter of Denial, the Aquifer Zoning Ordinance (App. II at PP. 6-8) mandates that the Appellant require such testing as per Section XI (A) (4) (b). CR at 664-65.

As to the other two issues (natural character of land and sight distance), these are two items that the Appellant repeatedly expressed concerns about and, within the entire year since the Design Review Phase had been completed, the Appellee did nothing to accommodate the Appellant’s

concerns.

Again “[o]nly the planning board can decide if [an] application meets its criteria (App. II at P. 7), and, here, at a glance the application offended the criteria of the applicable sections of the HZO relative to sight-distances

and preservation of the natural character of the land. CR at PP. 664-65.

The Appellee clearly disregarded the key criteria of the HZO by proposing a plan that massively re-graded the property with a contiguous disturbed area of over fourteen (14) acres and the massive excavation of

material exceeding 30 Feet. CR at P. 664.

During the Design Review Phase of the application, the Appellant repeatedly informed the Appellee that the proposed grading for the site was severe and did not meet the “preservation of the natural character of the land” requirement required by the HZO. The Appellant is fully within its statutory rights to arrive at the opinion that the proposed application did not comply

with a major component of the Housing for Older Persons Zoning Ordinance.

Housing for Older Persons is not a use allowed by right, but rather is part of an Overlay District that requires each application adhere to specific

requirements. App II at PP. 9-10. It is the Appellant’s authority, rightfully so, that made the decision that the application failed to meet a primary goal of

the Overlay District.

Here, the HAB is instructing the Appellant to accept the Application as complete and, only then, would the Appellant be in a position to deny the

application for the very same reasons previously cited. App. I at PP. 82-89.

The requirement relative to the “natural character of the land” has not been respected in this case because the proposed plan’s density far exceeds was is needed to have a housing development “work with the land versus

against it.” CR at 662, Lines 532-40.

Notably, the density may be allowed under the HZO but the underlying provisions of the HZO still must be adhered to and, here, the requested density cannot be accomplished without obliterating the landscape due to the steep terrain and ledge. The density, would not otherwise be an issue on a

different and less challenging site.

The Appellee has alternative development options available that do not have the same oversight criteria as the Housing for Older Persons Ordinance.

CR at P. 662, Lines 550-61. However, the Appellee chose to pursue a higher density development, the Appellee then must adhere to the criteria detailed in the HZO. The vast site disturbance proposed by the Appellee to the subject site totally ignores the “natural character” mandate of the HZO and the Board was well within its statutory oversight authority to refuse to accept the

application.

There is nothing in the above cited case law or NH RSA 676:4 that requires a planning board to accept an application for Final Review that does not comply with Zoning, which fails to adhere to specific sight distance regulations, and fails to supply detailed water supply data, as repeatedly requested by the Appellant and allowed by the Checklist, which are all critical

to public health and safety.

Clearly, the Appellant’s cited concerns were going to be an issue moving forward into Final Review and it would have been a disservice to the Appellee for the Appellant to have waited until after Final Review had

commenced to address these issues.

Hence, why the Design Review Phase should be a safe guard to thwart

an application that offends the HZO before it begins.

Therefore, the HAB should have considered the grounds for the

Appellant’s refusal to accept the application as complete.

Finally, it is admittedly unclear where the line is drawn for what constitutes too much of a substantive review versus what is acceptable for the Design Review Phase. As stated above, and as all land development applications and their respective sites are different, the analysis should be on a case-by-case factual basis. Here, given the time spent vetting the same concerns over the course of multiple years, the Appellant was correct to

refuse to accept the Appellee’s application.

If the HAB’s Order I stands then the Design Review Phase is reduced to ‘checking boxes on a checklist.’ Here, the Appellant vetted an application over the course of years with very specific requirements and concerns that were never addressed by the Appellee. The HAB should have weighed the

Appellant’s reasons for its refusal to accept the application.

As such, we respectfully request that this Honorable Court reverse the

HAB’s decision of April 17, 2023, and dismiss the Appellee’s claims and

deny all relief requested.

Or, alternatively, remand this matter back to the HAB directing it to

consider the Appellant’s reasoning for its refusal to accept this application

Should the Honorable Court desire an oral argument, the Appellant

requests oral argument to be made by Christopher B. Drescher, Esq.

Date: __ January 19, 2024 By:

4]

I hereby certify that on January 19, 2024, I electronically filed this

Brief of the Appellant, Town of Hollis (Planning Board) as required by the Rules of the Supreme Court. I am electronically sending this document through the court’s electronic filing system to all attorneys and to all other

parties who have entered electronic service contact (email addresses).