Brewster v. Town of Amherst
| Decision Date | 03 December 1999 |
| Docket Number | No. 97–912.,97–912. |
| Citation | 144 N.H. 364,742 A.2d 121 |
| Court | New Hampshire Supreme Court |
| Parties | Benjamin and Rosemary BREWSTER v. TOWN OF AMHERST and another. |
McNeill & Taylor, P.A., of Dover (Malcolm R. McNeill, Jr. and Lynne M. Dennis on the brief, and Mr. McNeill orally), for the plaintiffs.
Drescher & Domko, P.A., of Milford (William R. Drescher on the brief and orally), for the defendants.
McLane, Graf, Raulerson & Middleton, P.A., of Nashua (John V. Dwyer, Jr. and Rolf E. Goodwin on the brief, and Mr. Dwyer orally), for the intervenors, J. Peter de Bruyn Kops & a.
The plaintiffs, Benjamin and Rosemary Brewster, appeal a decision of the Superior Court (Barry , J.) affirming the revocation of a site plan approval, see RSA 676:4–a (1996), by the defendants, the Town of Amherst and the Amherst Planning Board (board). We affirm.
In 1991, the plaintiffs purchased a 57.2–acre parcel located along the Souhegan River. Approximately two acres are developable, but much of the parcel is located in a flood plain and contains wetlands. All but a small portion of the parcel is located in a residential-rural zone, and significant portions are located within four overlay districts that further restrict the property's use. These overlay districts are the flood plain conservation district, the wetland conservation district, the watershed protection district, and the aquifer protection district.
In 1992, the plaintiffs sought approval to build a residence and a soccer training center on their property. The town's planning director denied the request, finding that the plan did not conform to the rural-residential zoning requirements. The plaintiffs then sought a variance to develop a soccer camp on the site, which the Amherst Zoning Board of Adjustment denied.
The plaintiffs then sought approval for development of a soccer facility. In July 1993, the plaintiffs created a non-profit organization to conform to the town's zoning bylaws, which permit additional non-profit uses. After two years of numerous extensive public hearings, and exhaustive review by the board, as evidenced by a 1,200 page record, the board approved the project in June 1995. The final approval permitted eight outdoor soccer fields, a 24,200 square foot field house, and 553 permitted parking spaces, including six bus parking spots. The field house includes an indoor soccer field, locker rooms, showers, bathrooms, a meeting room, a weight training room, a function room, a snack bar for fifteen persons, and room for catered banquets or meals for up to fifty participants. Under the terms of the approval, the plaintiffs would lease the facility to the non-profit organization. The board rejected the plaintiffs' request to use the premises for overnight accommodations, a restaurant, a sports and souvenir shop, and as a general banquet facility. The plan was approved provided that six pages of additional conditions were satisfied, including, inter alia :
The facility was further restricted to operation between April 1 and November 30 of each year. The plaintiffs were permitted to conduct six soccer tournaments in the first year of operation, and eight tournaments in each succeeding year. Generally, the site plan required the facility, on weekends following tournaments, to be closed the same number of days as the tournament had lasted on the preceding weekend. The plaintiffs were also required to inform the town of its schedule of tournaments and closed weekends by April 1 of each year.
Following site approval, the plaintiffs' neighbors, including the intervenors, frequently complained to the town regarding violations of the site plan conditions, including play during restricted hours, illegal parking, and equipment and portable toilets remaining on the field during flood and snow conditions.
On April 3, 1996, the planning board notified the plaintiffs of a hearing scheduled for April 17, 1996, to address certain identified violations. The plaintiffs were notified that a possible result of the hearing was revocation of the site plan approval. The planning board gave the plaintiffs thirty days from the date of a notice issued after the meeting to comply with all conditions. After the hearing, the board continued to receive complaints, and on June 5, 1996, unanimously voted to revoke the plaintiffs' site plan approval because the plaintiffs did not comply with the condition regarding surface water monitoring.
On August 14, 1996, the board voted to rescind the revocation after the plaintiffs complied with the conditions. The planning board, however, continued to receive complaints that the property was used during restricted weekends and that portable toilets, equipment, and tires were still being left in the flood plain. On October 19, the property was used by two teams to play a soccer game on a restricted weekend. Later that month, the board received additional complaints about equipment remaining in the flood plain zone during flooding conditions.
The letter further explained the plaintiffs' right to request a hearing, see RSA 676:4–a, and that if no hearing was requested, the board would record the revocation as provided in RSA 676:4–a, III.
The plaintiffs requested a hearing, which was held on February 19, 1997. At the hearing, the board permitted each person present, including the plaintiffs, counsel, and each abutter, four minutes to speak regarding the revocation. The board, in a 4–2 vote, concluded that the violations were material violations of the site plan and that the plaintiffs were unable to adequately control the site, and recorded the revocation of site plan approval.
The plaintiffs appealed to the superior court, which upheld the board's revocation. The court found that "the [n]otes of the meeting demonstrate ... that Mr. Brewster did not dispute that he was in violation but rather discussed the reasons for the violations and how he intended to prevent future violations."
The court further noted that
The court also noted that the two violations cited in the letter were not the first violations of which the plaintiffs had been informed, and that the site plan had already been revoked once for noncompliance with material conditions. The court found that the letter's reference to RSA 676:4–a, I(c) was a typographical error, and that the planning board gave the plaintiffs adequate notice and an opportunity to be heard, sufficient to satisfy due process.
On appeal, the plaintiffs argue that the trial court erred in ruling that the planning board's revocation was lawful and reasonable when the alleged violations were not material. The plaintiffs also argue that the planning board denied them due process: (1) by sending a notice identifying only two reasons for revocation but then considering additional reasons and incidents; (2) by sending a notice that incorrectly identified the applicable statutory provisions; and (3) by allowing them only four minutes to speak at the planning board hearing. Finally, the plaintiffs argue that the board erred as a matter of law in voting to revoke the site plan approval, and the superior court erred in upholding the revocation.
Our standard of review of a trial court's decision strongly favors upholding that decision unless it is unsupported by the evidence or is legally erroneous. Our function on appellate review is not to decide whether we would have found differently but to determine whether a reasonable person could find as did the trial judge.
Hansel v. City of Keene , 138 N.H. 99, 101, 634 A.2d 1351, 1353 (1993) (quotation and citations omitted); see Deer Leap Assoc. v. Town of Windham , 136 N.H. 555, 557, 618 A.2d 837, 838 (1992).
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