Golf Course Investors of Nh v. Town of Jaffrey

Decision Date12 April 2011
Docket NumberNo. 2010–167.,2010–167.
Citation20 A.3d 846,161 N.H. 675
PartiesGOLF COURSE INVESTORS OF NH, LLCv.TOWN OF JAFFREY and another.
CourtNew Hampshire Supreme Court
OPINION TEXT STARTS HERE

William S. Gannon PLLC, of Manchester (William S. Gannon on the brief and orally), for Golf Course Investors of NH, LLC.

Bragdon & Berkson, P.C., of Keene (Kelly E. Dowd on the brief and orally), for the Town of Jaffrey and Town of Jaffrey Zoning Board of Adjustment.CONBOY, J.

The Town of Jaffrey (Town) and the Town of Jaffrey Zoning Board of Adjustment (ZBA) appeal the order of the Superior Court ( Arnold, J.) vacating the ZBA's decision granting the appeal of certain residents of the Town from decisions of the Town of Jaffrey Planning Board (planning board). The trial court ruled that the residents lacked standing to appeal the planning board's decisions granting major subdivision and site plan approvals to Golf Course Investors of NH, LLC (GCI). We affirm.

The following facts are drawn from the record. With the planning board's approval, GCI subdivided its single 9.13 acre parcel into two lots, one consisting of 7.39 acres, and the other of 1.75 acres (Lot 8.9) containing the building at issue. The approval of the subdivision was not appealed. GCI subsequently submitted a major subdivision application, seeking to convert the building on Lot 8.9, the Shattuck Inn Annex, into a four-unit condominium. It also submitted a site plan application, proposing the condominium conversion with two detached garages. The planning board voted that a special exception was not required to allow the proposed four-unit condominium. It accepted the major subdivision and site plan applications and conducted a public hearing.

Planning board member Don MacIsaac recused himself from participating in the board's review of the applications. He is identified in the minutes as an abutter, and the certified record demonstrates that the Town sent notice of the public hearing to “MacIsaac Trust c/o Donald & Patricia MacIsaac.” During the hearing, Mr. MacIsaac expressed some road safety concerns, and Mrs. MacIsaac asked questions about the proposed use of an existing driveway, as well as the intended access to a nearby golf course “by maintenance people on carts.” The minutes reflect that GCI's plan was to restore the existing Annex building, which apparently has historical value, by extending the front porch, constructing two porches in the back with “similar character” to existing back porches, and painting the exterior cedar with solid stain. The plan also included constructing two detached garages. The planning board approved the major subdivision and site plan applications with conditions.

Seven residents—Richard and Heather Ames, James and Sara Bacon, Allon and William Blackwell, and Patricia MacIsaac—appealed the planning board's decisions to the ZBA. They stated:

[W]e believe the Planning Board erred in its interpretation of the zoning regulations regarding the lot size for a major subdivision and in its decision that the plan did not need to come before the [ZBA] for Special Exceptions. Under RSA Chapter 675, we therefore appeal the Planning Board's April 11, 2006 decision—allowing four dwelling units in the Mountain Zone on a plot of only 1.75 acres—to the [ZBA].

The residents contended that [s]tandard zoning in the Rural District and Mountain Zone requires at least 6 acres for four units with town water, or at least 4.8 acres for an Open Space Development Plan for four units with town water,” and that [i]f the Shattuck Annex were a standard ownership project in the Mountain Zone, it would require Special Exceptions for a major development and for a multi-family dwelling and approval for an Open Space Development Plan (OSDP), which is the only way to allow multi-family housing in the Mountain Zone.” They requested that the ZBA overturn the planning board decisions and direct it to rehear the case, asserting that, “Upon rehearing, we believe that a revised proposal on at least 4.8 acres of platted land could be readily approved by the Planning Board as an Open Space Development Plan, assuming prior Planning Board referral to and approval by the Board of Adjustment of the necessary Special Exceptions for a major subdivision and multi-family dwelling in the Mountain Zone.” They also stated, We are pleased that the Shattuck Inn Annex, gutted and unused for many years, has been proposed by [GCI] to be redeveloped into attractive housing,” and We believe the resulting redevelopment of the Shattuck Annex as four dwelling units on a plot of at least 4.8 acres will be a very good reuse of this historic 1912 building, which is an example of Shingle Style Architecture.”

Under a section in their appeal document entitled “AGGRIEVED PERSONS,” the residents identified their respective properties' location in relation to the mountain zone and Lot 8.9. They stated that the Ames' property “abuts land in the Mountain Zone and [its] northwest property boundary is approximately 900 feet from Lot 8.9”; the Bacons' property fronts “the same side of Dublin Road as Lot 8.9 about 2400 feet from Lot 8.9”; and the Blackwells' property is located in the mountain zone and “is about 1200 feet from Lot 8.9 fronting on the opposite side of Dublin Road.” With respect to Patricia MacIsaac, the appeal document states that she “was identified by the Planning Board as an abutter” and her property “is located across Dublin Road ... approximately 450 feet from Lot 8.9.”

On June 6, 2006, the ZBA held a public hearing on the residents' appeal. GCI raised the issue of whether the residents had standing to appeal the planning board's decisions as “persons aggrieved.” See RSA 676:5, I (Supp.2010). It asserted that living close to the project or having a general interest in the proper enforcement of town ordinances and regulations is not enough to be “aggrieved,” and pointed out that the residents stated that they actually favored the project. With respect to the issue of standing, Town counsel noted that, of the residents, only Patricia MacIsaac attended and participated in the planning board proceedings. The minutes of the hearing also state the following:

[Town counsel] read RSA 672:3 which defines an abutter. To his knowledge none of the four properties adjoin or are directly across the street or stream from the land under consideration. Another consideration would be do they have a direct issue; whether they can demonstrate that their land will be directly affected by the proposal under consideration. In the petition they identify themselves as aggrieved and they stop—they do not go on to say how their properties are affected by this. They do say however that they like the proposal itself.

During the hearing, the residents related their concern that the planning board erroneously allowed “too much housing, being four condominium units, on too little land, being 1.75 acres, within the rural/mountain zone.” The ZBA closed the public hearing, expecting to begin deliberations on June 20.

At the commencement of its June 20 deliberative session, the ZBA addressed the issue of standing. The minutes of that session state the following:

The board reviewed the State's definition of abutter. Chairman Dumont did not feel that any of the appellants qualified as an abutter. Member Weber commented that the State has regional impact going as far as Marlborough. The appellants are closer than Marlborough.

Member Dodge asked [Town counsel] for an explanation on who can and cannot appeal a decision. [Town counsel] explained that the definition of abutter is for notice purposes and you do not have to be an abutter to be an aggrieved party. The issue here is whether or not the parties who issued the appeal are aggrieved.

Chairman Dumont noted that three of the four appellants did not attend the Planning Board public hearing and asked how aggrieved could they be? There are two choices. The board can either deny the appeal and go with what the Planning Board said was correct or the appeal can be granted and returned to the Planning Board. If the second option takes place it will most likely generate an application for a special exception.

Without any further discussion described in the minutes, the ZBA voted that the residents were “aggrieved.” It also voted to grant the appeal “on the basis that a special exception to allow a multi-family use is required.” GCI unsuccessfully sought a rehearing from the ZBA, and then appealed to the superior court. The trial court bifurcated the matter, first addressing the jurisdictional issue of standing. It ruled that the residents lacked standing to bring their appeal before the ZBA, and vacated the ZBA's decision granting the appeal and reversing the planning board's decision. This appeal followed.

As a preliminary matter, we will assume, without deciding, for purposes of this appeal that the Town has standing to challenge the trial court's decision regarding the standing of the residents and therefore we address the Town's arguments on the merits. See S. N.H. Med. Ctr. v. Hayes, 159 N.H. 711, 715, 992 A.2d 596 (2010); Stuart v. State, 134 N.H. 702, 704, 597 A.2d 1076 (1991).

The Town argues that the trial court erred “in finding that standing is a legal conclusion rather than a factual judgment,” “in substituting its judgment for that of the ZBA,” and “in failing to accord the presumption of validity to the determination of the ZBA.” It further contends that “the record is clear that the determination of the ZBA was reasonable and in accordance with existing New Hampshire case law.” It points out that one of the residents, Patricia MacIsaac, was cited as an abutter by the planning board for notice purposes, that two residents live within 1,000 feet and the others live within 2,400 feet from Lot 8.9, that the proposed change “was the creation of a major subdivision on a 1.75 acre lot,” and that at least one of the residents...

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4 cases
  • Dietz v. Town of Tuftonboro
    • United States
    • New Hampshire Supreme Court
    • January 8, 2019
    ...omitted). The trial court reviews the ZBA's statutory interpretation de novo. See RSA 677:6 ; Golf Course Investors of NH v. Town of Jaffrey, 161 N.H. 675, 682, 20 A.3d 846 (2011) (reviewing issues of law decided by the ZBA de novo )."We will uphold the trial court's decision on appeal unle......
  • Hannaford Bros. Co. v. Town of Bedford
    • United States
    • New Hampshire Supreme Court
    • April 25, 2013
    ...party must show "some direct, definite interest in the outcome of the action or proceeding." Golf Course Investors of NH v. Town of Jaffrey, 161 N.H. 675, 680, 20 A.3d 846 (2011). "Whether a person's interest in the challenged administrative action is sufficient to confer standing is a fact......
  • Censabella v. Hillsborough Cnty. Attorney
    • United States
    • New Hampshire Supreme Court
    • October 17, 2018
    ...sufficient to confer standing is a factual determination to be undertaken on a case by case basis." Golf Course Investors of NH v. Town of Jaffrey, 161 N.H. 675, 680, 20 A.3d 846 (2011). Both the petitioner in her petition, and her attorney in representations to the trial court, confirmed t......
  • In re N.H. Dep't of Envtl. Serv.
    • United States
    • New Hampshire Supreme Court
    • December 28, 2023
    ...to all persons in the community who might feel that they are hurt by the administrative action." Golf Course Investors of NH v. Town of Jaffrey, 161 N.H. 675, 680, 20 A.3d 846 (2011) (quotation omitted). The regulations governing Council proceedings also address standing requirements. See N......

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