Anderson v. Motorsports Holdings, LLC.

• Decision Date: 30 May 2007
• Docket Number: No. 2006–008.,2006–008.
• Citation: 926 A.2d 261,155 N.H. 491
• Parties: Maud ANDERSON & a. v. MOTORSPORTS HOLDINGS, LLC.
• Court: New Hampshire Supreme Court

155 N.H. 491

926 A.2d 261

Maud ANDERSON & a.

v.MOTORSPORTS HOLDINGS, LLC.

No. 2006–008.

Supreme Court of New Hampshire.

Argued: April 3, 2007.

Opinion Issued: May 30, 2007.

Rehearing Denied July 16, 2007.

Rath, Young and Pignatelli, P.C., of Concord (Andrew W. Serell on the brief and orally), for the petitioners.

Devine, Millimet & Branch, P.A., of Manchester (Susan V. Duprey & a. on the brief, and Thomas Quarles, Jr. orally), for the respondent.

Paul G. Sanderson, of Concord, by brief, for the New Hampshire Local Government Center, as amicus curiae.

Baldwin, Callen & Ransom, PLLC, of Concord (Jed Z. Callen on the brief) for the New Hampshire Association of Conservation Commissions, as amicus curiae.

GALWAY, J.

The respondent, Motorsports Holdings, LLC, appeals an order of the Superior Court (McHugh, J.) denying its motion for summary judgment and granting the cross-motion for summary judgment filed by the petitioners, who are residents of the town of Tamworth. We affirm.

The following facts are undisputed. The respondent owns approximately 250 acres of land in Tamworth, on which it wishes to build a private, 3.1–mile automobile racetrack to be used as a "private driving instructional facility and motorsports country club." Along with the track, the respondent's development plan calls for structures to support the repair, servicing, and garaging of racing vehicles, as well as a hotel, restaurant, access road, and parking facilities.

Construction of the development would involve dredging and filling 14,759 square feet of wetlands and would affect 16,952 square feet of intermittent streams. In total, construction would affect seventeen distinct wetland areas. The development site is located directly over primary and secondary recharge areas for the Ossipee Aquifer, which provides drinking water for Tamworth and twenty-seven other towns in New Hampshire and Maine.

The respondent obtained: (1) a dredge-and-fill wetlands permit from the New Hampshire Department of Environmental Services (DES); (2) a site-specific alteration-of-terrain permit from DES; (3) a wetlands permit from the United States Army Corps of Engineers (USACE); and (4) a water quality certificate from DES. DES required the respondent to provide a conservation easement on 107 acres of land in Sandwich to mitigate the negative environmental impacts of the project. The respondent also applied for a special use permit, pursuant to Tamworth's Wetlands Conservation Ordinance (WCO); however, it withdrew its application before the Tamworth Planning Board (Board) reached a decision upon it.

The petitioners sought a declaratory judgment from the superior court, requesting, inter alia, a declaration that the respondent had to obtain a special use permit pursuant to the WCO before beginning construction. The court ruled that the Town of Tamworth was a necessary party to the declaratory judgment action and invited the Town to participate in the lawsuit. The court notified the Town that, whether or not it participated, it would be bound by the result of the declaratory judgment action. The Town chose not to participate. The parties then filed cross-motions for summary judgment regarding issues of standing and whether the WCO, by its own terms, applied to the respondent's proposed development or whether it yielded to state and federal regulation. The respondent argued that it did not need to obtain a special use permit pursuant to the WCO.

The trial court granted the petitioners' motion for summary judgment, ruling that the WCO applied to the respondent's project. The trial court denied the respondent's motion for summary judgment, ruling that, although the petitioners did not enumerate the specific criteria for each petitioner's standing, such a showing was unnecessary because some of them certainly had standing.

The respondent appeals the trial court's rulings on summary judgment.

When reviewing a trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the nonmoving party. If our review of the evidence does not reveal any genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. We review the trial court's application of the law to the facts de novo.

Dalton Hydro v. Town of Dalton, 153 N.H. 75, 77, 889 A.2d 24 (2005) (citations omitted). An issue of fact is material if it affects the outcome of the litigation. Panciocco v. Lawyers Title Ins. Corp., 147 N.H. 610, 613, 794 A.2d 810 (2002).

I. Stringency

The respondent's first argument is that the trial court erred as a matter of law by interpreting the WCO as being more stringent than the federal and state wetlands permit review. This argument is based solely upon Section I of the WCO, which states: "Where any provision of this ordinance is in conflict with State or Federal law or regulation, or other Town ordinance, the more stringent provision shall apply." The respondent argues that the relevant state and federal regulations are more stringent and comprehensive than the WCO, and, thus, the WCO is inapplicable by its own terms and the respondent need not obtain a special use permit from the Board. The respondent also argues that the evidence established at least a genuine issue of material fact precluding summary judgment for the petitioners.

The interpretation of a zoning ordinance is a question of law, which we review de novo. Harrington v. Town of Warner, 152 N.H. 74, 79, 872 A.2d 990 (2005). We are the final arbiter of the interpretation of a zoning ordinance's terms. Olszak v. Town of New Hampton, 139 N.H. 723, 726, 661 A.2d 768 (1995). Because the traditional rules of statutory construction generally govern our review, the words and phrases of an ordinance should be construed according to the common and approved usage of the language. Harrington, 152 N.H. at 79, 872 A.2d 990. When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indications of legislative intent. Id. Moreover, we will not guess what the drafters of the ordinance might have intended, or add words that they did not see fit to include. Id.

The WCO provides, in pertinent part:

A. Purpose and Intent

The purpose of this Ordinance is to protect the public health, safety and general welfare by controlling and guiding the use of land areas which have been found to be subjected to standing water, flooding, high water tables for extended periods of time.

It is intended that this Ordinance shall:

1. Prevent the development of structures and land uses on naturally occurring wetlands which will contribute to pollution of surface and ground water by sewage, sediment, or noxious substances.

2. Prevent the destruction of, or significant changes to natural wetlands which provide flood protection.

3. Protect rare, unique, and unusual natural communities, both floral and faunal.

4. Protect wildlife habitats and maintain ecological balances.

5. Protect potential water supplies and existing aquifers (water-bearing stratum) and aquifer recharge areas.

6. Prevent expenditure of municipal funds for the purposes of providing and/or maintaining essential services and utilities which might be required as a result of misuse or abuse of wetlands.

7. Encourage those low-intensity uses that can be harmoniously, appropriately and safely located in wetlands.

....

D. Permitted Uses Within the Wetlands Conservation District

1. The construction or maintenance of single-family dwellings, garages, and driveways, excluding septic disposal systems, on pre-existing lots of record as of the effective date of this ordinance (March 12, 1991)....

2. The following uses are permitted which will not require the erection or construction of any structures of [sic] buildings, will not alter the natural surface configuration by the addition of fill or dredging, and uses that otherwise are permitted. Such uses may include the following:

(a) Forestry—Tree Farming, using the best management practices outlined in "Best Management Practices for Erosion Control on Timber Harvesting in New Hampshire" ... to protect wetlands and waterbodies from damage and to prevent sedimentation;

(b) Cultivation and Harvesting of Crops and Grazing, using standards provided by the Soil Conservation Service, including the protection of wetlands from pollution caused by fertilizers, pesticides and herbicides;

(c) Wildlife Refuges, consistent with the purpose and intent of this ordinance;

(d) Parks and Recreation Uses, consistent with the purpose and intent of this ordinance;

(e) Conservation Areas and Nature Trails, consistent with the purpose and intent of this ordinance;

(f) Open Spaces ...;

(g) Uses incidental to the enjoyment or maintenance of residential property....

3. No person shall conduct or maintain another activity without first obtaining a Special Use Permit as described in Section E.

E. Special Use Permits

1. Special Use Permits may be issued by the Board, after proper public notice and public hearing, for undertaking the following uses in the Wetlands Conservation District when the application has been referred to the Commission and to the Health Officer for review and comment at least thirty (30) days prior to the hearing.

....

(c) The undertaking of a use not otherwise permitted in the Wetlands Conservation District, if it can be shown that such proposed use is not in conflict with any and all of the purposes and intentions listed in Section A of this ordinance.

....

F. Special Provisions

....

2. Unless otherwise permitted by the Board, no construction activity shall encroach within twenty-five (25) feet of the limits of a wetland; all efforts shall be made by the site developer to maintain this buffer in its undisturbed vegetative state.

....

I. Conflict with Other Regulations

Where any provision of this ordinance is in conflict with State or Federal law or regulation, or other Town

...