Deer Leap Associates v. Town of Windham, 91-476
| Decision Date | 29 December 1992 |
| Docket Number | No. 91-476,91-476 |
| Parties | DEER LEAP ASSOCIATES v. TOWN OF WINDHAM. ROCK POND IMPROVEMENT ASSOCIATION v. TOWN OF WINDHAM. |
| Court | New Hampshire Supreme Court |
McSwiney, Semple, Bowers & Wise, P.C., Concord (James B. Kazan on the brief and orally), for Pelham Bank & Trust.
Baldwin & de Seve, Concord (Richard J. de Seve on the brief and orally), for Rock Pond Imp. Ass'n.
Deer Leap Associates filed no brief.
Town of Windham filed no brief.
This is an appeal from an order of the Superior Court (Perkins, J.), disposing of the appeals from two separate decisions of the Town of Windham Planning Board. For the reasons that follow, we reverse.
In September 1985, the Town of Windham Planning Board considered a proposal submitted by Deer Leap Associates (Deer Leap) to create a multi-lot subdivision contiguous with Rock Pond in Windham. At its September 25, 1985 meeting, the board approved the plans for all but one of the lots comprising the third phase of the subdivision development. According to the minutes of the planning board meeting, the board withheld approval of lot number 16 and passed a motion "making approval of lot 16 contingent on a study of the effect of a failed septic system on this lot as it affects the spring and the pond."
Deer Leap appealed this aspect of the board's decision to the superior court, pursuant to RSA 677:15, giving rise to the first of the above-captioned cases. In prayer one of its petition, Deer Leap requested that the superior court "[a]llow Certiorari and direct the Defendant's Planning Board to review said decision within a reasonably prompt time." After the petition was filed, the parties agreed that certiorari should be allowed as to prayer one and stipulated that "the Windham Planning Board shall review the decision within thirty (30) days from the Court's approval of this stipulation." The Superior Court (Dunn, J.) approved the stipulation on December 3, 1985, and issued an order in accordance therewith.
In January 1986, the planning board reviewed its decision concerning lot 16. The minutes of the planning board hearings on January 8 and 22 indicate that the board heard additional evidence concerning the development of lot 16, including information regarding the impact of a functioning septic system on the pond. On January 22, the board approved the plans for lot 16 with certain restrictions on where the septic system and any buildings could be placed. The board heard no evidence detailing the effects a failed septic system on lot 16 would have on Rock Pond. The Rock Pond Improvement Association (Rock Pond) appealed the approval of lot 16, giving rise to the second of the above-captioned cases. By motion of the Town of Windham, the superior court consolidated the two appeals. Because Deer Leap encountered financial difficulties, lot 16 was subsequently acquired by Pelham Bank & Trust, which was granted intervenor status in this case.
In its order of August 22, 1991, the superior court affirmed the planning board's September 25, 1985 decision placing the contingency on the approval of lot 16, and reversed the board's January 22, 1986 decision granting approval to lot 16 with restrictions. The court reasoned that the board's approval of lot 16 was unreasonable and an error of law because the board had granted approval on the basis of an incomplete application by not requiring satisfaction of the "study" contingency. Pelham Bank & Trust appealed to this court.
Upon a grant of certiorari, the superior court may review the decision of a planning board, RSA 677:15, II, and may reverse, affirm, or modify that decision where there is an error of law or when the decision is unreasonable, RSA 677:15, V. We will not overturn the superior court's decision unless it is unsupported by the evidence or legally erroneous. Devaney v. Town of Windham, 132 N.H. 302, 306, 564 A.2d 454, 456 (1989); Nadeau v. Town of Durham, 129 N.H. 663, 666, 531 A.2d 335, 337 (1987).
The superior court erred in reversing the planning board's January 22 decision granting approval of lot 16. The court based its reversal on the ground that the board had failed to require the satisfaction of the contingency requiring a study when, in fact, that contingency was no longer in effect. The requirement that a study of septic failure be conducted was removed after the planning board reviewed its...
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