Bayson Props., Inc. v. City of Leb.

• Decision Date: 24 October 2003
• Docket Number: No. 2002–538.,2002–538.
• Citation: 834 A.2d 202,150 N.H. 167
• Parties: BAYSON PROPERTIES, INC. & a., v. CITY OF LEBANON.
• Court: New Hampshire Supreme Court

150 N.H. 167

834 A.2d 202

BAYSON PROPERTIES, INC. & a.,

v.CITY OF LEBANON.

No. 2002–538.

Supreme Court of New Hampshire.

Argued: May 7, 2003.

Opinion Issued: Oct. 24, 2003.

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment on the brief and orally), for the plaintiffs.

Gardner Fulton & Waugh P.L.L.C., of Lebanon (H. Bernard Waugh, Jr. on the brief and orally), for the defendant.

Schuster, Buttrey & Wing, P.A., of Lebanon (Barry C. Schuster on the brief and orally), for the intervenor, A.D. McKibbin.

BROCK, C.J.

The plaintiffs, Bayson Properties, Inc. (Bayson) and Hannaford Brothers Co. (Hannaford), appeal a decision of the Superior Court (Smith , J.) affirming a decision of the planning board (board) of the defendant, the City of Lebanon, denying their site plan application to construct a 56,000 square foot grocery store and a parking lot with 302 parking spaces located between Heater Road and Route 120 in Lebanon. We affirm.

Bayson is the owner of the site and Hannaford is the prospective developer and owner of the proposed grocery store. In March 2000, the board voted to accept the plaintiffs' application for site plan approval. In April 2000, the plaintiffs voluntarily withdrew their application at the request of the defendant's planning director because he determined that they first needed to obtain a special exception for wetland disturbance from the Lebanon Zoning Board of Adjustment (ZBA). See McKibbin v. City of Lebanon, 149 N.H. 59, 816 A.2d 966 (2003).

After obtaining a special exception from the ZBA, the plaintiffs refiled their application with the board, which voted in October 2000 to accept it for review. Between October 2000 and May 2001, the board held seven public hearings on the application and conducted an official site visit. Most of the public hearings exceeded three hours in length. On May 14, 2001, after a deliberative session, the board denied site plan approval by a four to three vote. The decision cited, as reasons for the denial, failure to comply with landscaping and traffic regulations. The plaintiffs appealed that decision to the superior court, which upheld the board's decision.

The plaintiffs argue on appeal that the trial court erred: (1) by applying the wrong standard of review; (2) in ruling that the plaintiffs failed to preserve the issue of bias; and (3) in upholding the board's decision that the plaintiffs failed to satisfy the applicable site plan regulations. In addition, the plaintiffs argue that the board's decision effectively rezoned their property, failed to provide appropriate guidance, elevated the property rights of one property owner over another, and violated the plaintiffs' equal protection rights.

I. Standard of Review

The trial court's decision states that "[t]he standard of review under RSA 677:15 is clear. Pursuant to RSA 677:6 all the Board's findings are deemed prima facie lawful and reasonable. The Board's decisions cannot be set aside unless the Court finds an error of law, or is persuaded by the balance of the probabilities that the decision of the Board is unreasonable." The plaintiffs argue that the trial court erred when it referred to RSA 677:6 (1996) and stated that the "Board's findings are deemed prima facie lawful and reasonable." They contend that the standard under RSA 677:15 (Supp.2002) is less deferential, and that the trial court should not have presumed the board's findings to be prima facie lawful and reasonable. The plaintiffs argue that "[t]he statutes essentially contemplate ... a de novo hearing on decisions of planning boards, as opposed to a much more restricted and limited review of zoning board and municipal legislative body decisions."

RSA 677:6 governs appeals from decisions of the zoning board of adjustment and local legislative bodies. RSA 677:15 governs appeals from decisions of the planning board. Although the language of the two provisions is somewhat different, we have consistently applied the same standard of review in appeals brought under RSA 677:6 and RSA 677:15 : the burden of proof is on the party seeking to set aside the decision of the zoning board or planning board to show that the decision is unlawful or unreasonable. See Peter Christian's Inc. v. Town of Hanover, 132 N.H. 677, 683, 569 A.2d 758 (1990) (zoning board); Durant v. Town of Dunbarton, 121 N.H. 352, 357, 430 A.2d 140 (1981) (planning board) (decided under prior law). Under either statute, the appealing party must demonstrate that an error of law was committed or must persuade the trial court by the balance of probabilities that the board's decision was unreasonable. See Star Vector Corp. v. Town of Windham, 146 N.H. 490, 492–93, 776 A.2d 138 (2001) ; Burke v. Town of Jaffrey, 122 N.H. 510, 513, 446 A.2d 1169 (1982).

We have expressly recognized that "both [ RSA 677:6 and :15 ] apply the same standard." NBAC Corp. v. Town of Weare, 147 N.H. 328, 331, 786 A.2d 867 (2001). "The superior court [is] obligated to treat the factual findings of both [the zoning board and the planning board] as prima facie lawful and reasonable and [can]not set aside their decisions absent unreasonableness or an identified error of law." Hannigan v. City of Concord, 144 N.H. 68, 70, 738 A.2d 1262 (1999). Judicial review of decisions of zoning and planning boards is limited. Such review is entirely discretionary with the superior court and "is ordinarily confined to the record of the lower tribunal." Price v. Planning Board, 120 N.H. 481, 486, 417 A.2d 997 (1980) (discussing certiorari review generally). While additional evidence may be introduced in the trial court, there is no trial de novo . See Beaudoin v. Rye Beach Village Dist., 116 N.H. 768, 770, 369 A.2d 618 (1976). "The purpose of the statutory provisions for the receipt of additional evidence is not to afford the appealing party a trial de novo , which is no longer available, but rather to assist the court in evaluating the action of the board." Webster v. Town of Candia, 146 N.H. 430, 443, 778 A.2d 402 (2001) (quotation and ellipsis omitted).

The plaintiffs' appeal was heard and determined on the certified record. The court's decision correctly acknowledges that the decision of the board could not be set aside unless the court found an error of law or was persuaded by the balance of probabilities that the decision was unreasonable. We hold that the trial court applied the correct standard of review.

II. Bias

The plaintiffs argued before the trial court that certain board members, in particular acting chairman Cormen, had prejudged the application, determining that there would be no commercial use of the plaintiffs' property. The court ruled that the plaintiffs failed to raise the issue of bias at the earliest possible time in the proceedings before the board and therefore waived the issue. On appeal, the plaintiffs argue that this ruling was erroneous because the plaintiffs were statutorily prohibited from raising the issue of bias and furthermore that they raised the issue as soon as they became aware of it.

The plaintiffs rely on RSA 673:14, II (1996), which provides:

When uncertainty arises as to [whether a board member should be disqualified] the board shall, upon the request of that member or another member of the board, vote on the question of whether that member should be disqualified. Any such request and vote shall be made prior to or at the commencement of any required public hearing. Such a vote shall be advisory and non-binding, and may not be requested by persons other than board members....

The plaintiffs argue that this statutory provision precludes them from making an objection to the participation of particular board members on a matter before it. According to its plain meaning, however, the statute addresses only the process by which the board votes to exclude participation by a member once the issue of disqualification has been raised. The statute does not place restrictions on who may object to the participation of board members; the plaintiffs were not statutorily prohibited from raising the issue.

A party claiming bias on the part of a planning board member must raise that issue before the board at the earliest possible time. See Sanderson v. Town of Candia, 146 N.H. 598, 602, 787 A.2d 167 (2001). "We require issues to be raised at the earliest possible time, because trial forums should have a full opportunity to come to sound conclusions and to correct errors in the first instance." Id. (quotation omitted). As the trial court correctly noted, the burden was on the plaintiffs to raise an objection to the participation of chairman Cormen when it became aware of the grounds for the objection.

In this case, the plaintiffs had knowledge of the facts upon which they claim bias before the hearings on their application began. At the first public hearing on October 30, 2000, chairman Cormen directly addressed her participation in the board's recommendation to the council to rezone the area around Heater Road, including the plaintiffs' property. The minutes of that hearing reflect the following:

Chairman Cormen emphasized that the rezoning hearings are separate from and independent of this site plan review process which is being undertaken at this meeting. She assured both the Planning Board, the applicant and the public that she, as one of the people who voted for rezoning [the site] will chair the site plan review fairly and impartially. She also asked any member of the Planning Board who felt that they might not be able to comport themselves similarly to step down at this time. No Planning Board members stepped down.

Chair Cormen also asked if the applicant or any member of the public had an issue believing that any member of the Planning Board was prejudiced with regard to this site plan review to raise their objection and state the Board member they are requesting to step down and on what specific basis. No such objections were raised .

(Emphasis added.)

The plaintiffs argue that they did in fact...