Hansel v. City of Keene

• Decision Date: 21 December 1993
• Docket Number: No. 93-278,93-278
• Citation: 138 N.H. 99,634 A.2d 1351
• Parties: Peter D. HANSEL and another, v. CITY OF KEENE.
• Court: New Hampshire Supreme Court

Page 1351

634 A.2d 1351

138 N.H. 99

Peter D. HANSEL and another, v. CITY OF KEENE.

No. 93-278.

Supreme Court of New Hampshire.

Dec. 21, 1993.

Gallagher, Callahan & Gartrell, P.A., Concord (Andrew B. Eills on the brief, and David Garfunkel orally), for plaintiffs.

Bell, Falk & Norton, P.A., Keene (Arnold R. Falk on the brief and orally), for defendant.

Rath, Young, Pignatelli and Oyer, P.A., Concord (Gregory W. Swope and Diane Murphy Quinlan on the brief, and Mr. Swope orally), for the intervenor, Konover Development Corp.

THAYER, Justice.

The plaintiffs, who are citizens of Keene, appealed a decision by the City of Keene Planning Board (planning board) to the superior court. The planning board had granted conditional approval of intervenor Konover Development Corporation's (Konover) site plan for a major commercial retail shopping center. The Superior Court (Brennan, J.) ruled that the planning board acted unreasonably and illegally because one of the conditions it imposed on Konover was less stringent than the minimum requirements of the Keene zoning ordinance. Konover now appeals the trial court's ruling. We affirm.

On December 1, 1986, Konover applied to the planning board for site plan review of a retail mall project to be developed on a sixty-two acre tract in Keene. The planning board approved Konover's application on July 6, 1987, subject to twenty-seven conditions. Condition $ 17, the sole condition at issue before us, provided:

"Prior to issuance of a building permit, Konover shall certify by a qualified hydrologist that development of the site will comply with the City's requirement that proposed fill and construction will not have a significant impact on the flood plain...."

On December 14, 1992, having determined that all conditions precedent (including condition $ 17) had been fulfilled, the planning board granted final approval to Konover's site plan. The plaintiffs appealed the planning board's decision to the superior court pursuant to RSA 677:15, I (Supp.1992). The plaintiffs asserted, in part, that the planning board acted unreasonably and illegally in formulating condition $ 17 because the condition did not require strict compliance with section 24.F.3 of the city's then-applicable zoning ordinance.

Section 24.F.3 of the Keene Zoning Ordinance, as adopted in 1983, prohibits new construction within the floodplain unless

"it is demonstrated that the cumulative effect of the proposed development, when combined with all other existing and anticipated development, will not increase the water surface elevations of the base flood at any point within the community."

The city has since changed its floodplain ordinance. In 1990, the city passed legislation allowing development in the floodplain, while still requiring developers to avoid negative floodplain impacts through compensatory flood storage. Although the 1990 ordinance modifies the rigid requirements of section 24.F.3 of the 1983 ordinance, the parties do not contend that it retroactively applies to this case. See RSA 676:12, V (Supp.1992).

Konover intervened in the trial court proceeding and objected to the plaintiffs' appeal, arguing, in part, that the city had never strictly applied the base flood impact requirement of section 24.F.3 to any proposed development, and that such systematic nonenforcement precluded the city from strictly applying it in this instance.

By order dated March 18, 1993, the trial court rejected Konover's assertions, ruling that condition $ 17 was unreasonable and illegal because its "no significant impact" standard was less restrictive than the plain meaning of section 24.F.3, which prohibits development that would cause any increase in the base flood level or elevation. The court further ruled that the 1983 floodplain ordinance must be strictly enforced against Konover for purposes of site plan review and for purposes of obtaining a building permit.

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. See Smith v. Town of Wolfeboro, 136 N.H. 337, 342, 615 A.2d 1252, 1255 (1992). 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." Liberty Mut. Ins. Co. v. Custombilt, Inc., 128 N.H. 167, 170, 512 A.2d 1098, 1100 (1986) (quotation omitted).

The trial court found that in its effort to enforce section 24.F.3, the planning board historically disregarded the plain meaning of the ordinance and applied base flood elevation standards ranging from no enforcement at all, to "not be made noticeably worse," to "not ... greater than one foot." The court also found that out of twenty or so applicants for projects in the floodplain, only four, including Konover, were required to adhere to these inconsistent interpretations of section 24.F.3. Based on the evidence, the trial court ruled that the planning board's enforcement of section 24.F.3 had been arbitrary and inconsistent, and that the planning board lacked the legal authority to set a less restrictive standard than section 24.F.3 requires. We find no error in the trial court's conclusion that the planning board lacked the legal authority, as defined by the plain language of the zoning ordinance, to impose a floodplain standard less restrictive than that provided for under the ordinance. See Cesere v. Town of Windham, 121 N.H. 522, 523, 430 A.2d 1134, 1135 (1981); cf. Morin v. City of Somersworth, 131 N.H. 253, 257, 551 A.2d 527, 530 (1988) (confirming a planning board's authority to decline conditional approval of a site plan that does not comply with the express terms of the zoning ordinance).

Konover argues that, in light of the planning board's alleged "systematic nonenforcement" of section 24.F.3, the trial court erred in failing to rule that the planning board was estopped from imposing on Konover the strict standard set forth in section 24.F.3. Konover relies primarily on our decision in Alexander v. Town of Hampstead, 129 N.H. 278, 525 A.2d 276 (1987), for the proposition that "a pattern of nonenforcement ... so systematic as to constitute ratification of a policy of nonenforcement" may serve to "estop a municipality's subsequent enforcement of the ordinance." Id. at 283, 525 A.2d at 280 (quotation omitted); see also Devaney v. Town of Windham, 132 N.H. 302, 307-08, 564 A.2d 454, 457 (1989).

Although municipal corporations may indeed be subject to estoppel, the law does not favor its application against municipalities. Turco v. Town of Barnstead, 136 N.H. 256, 261, 615 A.2d 1237, 1239 (1992). This is especially true when a valuable public interest may be jeopardized by applying the doctrine of estoppel against the municipality. Cf. City of Concord v. Tompkins, 124 N.H. 463, 472-73, 471 A.2d 1152, 1157-58 (1984) (noting that other jurisdictions employ an equity balancing test to decide whether to estop the government, yet holding that the facts presented did not necessitate such an analysis).

The public policy considerations underlying the city's strict floodplain regulations are found in section 24.D of the 1983 ordinance:

"1. To reduce the hazards of floods upon the public health, safety and general welfare.

2. To protect floodplain or floodway occupants from a flood that is or may be caused by their own land use.

3. To protect the public from the burden of extraordinary financial expenditures for flood control relief.

4. To protect the capacity of the floodway and floodplain areas to absorb, transmit and store runoff.

5. To minimize prolonged business interruptions.

6. To minimize damage to public facilities, utilities such as water and gas mains, electric, telephone and sewer lines, streets and bridges located in areas of special flood hazard.

7. To insure that those who occupy the areas of special flood hazard assume responsibility for their actions."

These objectives, coupled with section 24.F.3 itself, reveal an understandable concern among...