K & P, Inc. v. Town of Plaistow, 89-252

• Decision Date: 24 May 1990
• Docket Number: No. 89-252,89-252
• Citation: 575 A.2d 804,133 N.H. 283
• Parties: K & P, INC. v. TOWN OF PLAISTOW and Plaistow Planning Board.
• Court: New Hampshire Supreme Court

Page 804

575 A.2d 804

133 N.H. 283

K & P, INC. v. TOWN OF PLAISTOW and Plaistow Planning Board.

No. 89-252.

Supreme Court of New Hampshire.

May 24, 1990.

Law Office of Mark B. Johnson, Andover, Mass. (Mark B. Johnson and Linda A. O'Connell on the brief, and Mark B. Johnson (orally), for plaintiff.

Sumner F. Kalman, Plaistow, by brief and orally, for defendants.

JOHNSON, Justice.

This is an appeal by the plaintiff, K & P, Inc. (K & P) from an order of the Superior Court (O'Neill, J.) which affirmed the Town of Plaistow Planning Board's (Board) denial of the plaintiff's subdivision application. For the reasons set out below, we affirm.

The plaintiff's proposed subdivision plan, entitled "Sweet Hill Estates," depicts fifty-four house lots on approximately 115 acres of a 125-acre parcel. The remaining ten acres are located in the neighboring town of Newton. The parcel is U-shaped, with the outer boundary of the round part of the U facing northeasterly. The southeasterly prong is bounded at its end by Sweet Hill Road and the northwesterly prong is bounded along a portion of its side by Smith Corner Road.

The plan submitted to the Board shows that the owners of the seventeen lots on the northwesterly prong would obtain access to their property either by a road which enters from Smith Corner Road or directly from Smith Corner Road. The other thirty-seven lots would be reached by a dead-end road system (the road) which enters from Sweet Hill Road and includes three cul-de-sacs, the furthest one being approximately 3,500 feet from the entrance to the development. At the beginning of the road there is a nine percent (9%) downward slope or grade. This case concerns the adequacy of the road, in view of its length and grade, and the Board's determination that the issue was not adequately addressed by K & P, thus resulting in the denial of its application.

The first and longest part of the road is called Ridgley Road. Beginning at Sweet Hill Road, it makes several turns, is intersected by Dunwoody Court, the first cul-de-sac, and then ends further down in the second cul-de-sac. Close to its end, Ridgley Road is intersected by Evergreen Road which heads northwesterly and ends abruptly at the boundary between K & P's land and a large area of land in the center of the U known as the Jollimore parcel. Intersecting the north side of Evergreen Road is Windsor Court, the third and final cul-de-sac. The distance from the entrance of Ridgley Road to the end of Windsor Court is approximately 3,500 feet.

Evergreen Road was laid out so that when the Jollimore parcel was developed the two subdivisions would intersect, giving the plaintiff's subdivision another street access. At the time the plaintiff submitted its plan, however, the Jollimore land was undeveloped even though it had received subdivision approval in 1968. Since the plaintiff's engineer was told by the Board that the 1968 plan was outdated, he placed Evergreen Road so that it could connect with the proposed Brookside Road in the Jollimore parcel, if that parcel was developed consistent with the current subdivision regulations.

Before submitting a preliminary plan, the plaintiff inquired as to the maximum allowable road grade and possible limitations on the length of a dead-end road for conventional subdivisions. The plaintiff sought to clarify these issues because they were not addressed in the subdivision regulations. The plaintiff was informed, through its engineer Paul Fredette, that a 9% grade, if acceptable to the town engineer, would be acceptable to the Board, and that the regulations contained no limit on the length of a dead-end road.

In February 1987, the plaintiff submitted a preliminary plan to the Board which was discussed at a public hearing held on May 27, 1987. According to the minutes of that meeting, the length of the road, and the plaintiff's unsuccessful attempt to purchase a piece of the Jollimore land in order to connect the two sides of the proposed development, were discussed. Reference was also made by an abutter to the comments of the Highway Safety Committee, the police department and the fire department outlined in a letter from the Highway Safety Committee to the Board dated March 25, 1987, concerning, in part, the length and grade of the road. Near the end of the meeting, one of the Board members suggested that the plaintiff should address the concerns of the fire and police departments since the Board was bound to provide for "the safety of the towns people." The member suggested that "if the Fire Department has a problem with a 3600 foot dead-ended road, it will have to be corrected."

Although concerns were raised verbally regarding the plaintiff's preliminary plan at the public hearing, the Board did not notify K & P in writing of any specific changes the Board would require if the plan were submitted for final approval. Assuming that the Board's lack of written comments indicated tacit approval of the plan as drawn, the plaintiff submitted its final plan on July 13, 1987, without making any changes.

After the plaintiff's final plan was filed, the Board submitted the plan to Clifford Carlson, an engineer employed by Diprete, Marchionda & Assoc., Inc. (Diprete, Marchionda), the town's consulting engineers. Mr. Carlson responded with a letter dated August 4, 1987, in which he discussed, among other issues, the length of the road and the steep grade at its entrance. He noted that the plaintiff proposed to have Evergreen Road connect with Brookside Road in the Jollimore development, when built, but that the plaintiff did not have control of the Jollimore land at that time. He then suggested that it was possible to put an access road through lot 32, which is situated on Windsor Court, and lot 55 which is situated on Smith Corner Road. Such a road would alleviate the single-access road scheme on the southeasterly side of the development without relying on the future development of another owner's land.

The feasibility of this suggestion was supported in a report sent to the Board by the Chairman of the Rockingham County Conservation District, in which he stated that after a review of the plan and Mr. Carlson's letter, it appeared to him "that a road could be built from Windsor Court to Smith Corner Road through lots Nos. 32 and 55."

In addition to these two letters, several town departments commented on the need for a "back door" to the southeasterly side of the development due to the length of the road and the 9% grade. The fire chief notified the Board that it was essential for the two sides of the development to be connected by an approved road. He also noted that a connector across the Jollimore parcel, if it could be accomplished, would satisfy the concerns of the Board of Fire Engineers.

In his letter to the Board, the Chief of Police stated that it was "of paramount importance" that "the two separate developments ... be joined by a road connector due to the length of the road and it's [sic] grade." The highway department also commented in a memorandum to the Board that the development needed a "back door" for road maintenance in the winter and for safety.

Finally, after meeting with the plaintiff's engineers, the Highway Safety Committee sent a second letter to the Board with the recommendation "that Evergreen Road and Brookside Lane [Road] be connected." The police chief and the fire chief, as members of this committee, voted in favor of the proposal.

On August 17, 1989, K & P representatives, its engineer, several Board members, the Board's engineer, the police chief, and other interested people, went on a site walk to review the plaintiff's development property. The comments of the Board's engineer, Mr. Carlson, were made available to the plaintiff at that time, and some of them were addressed during the walk. In the time between the site walk and the final hearing on August 26, 1987, the plaintiff attempted to address all of the comments in Mr. Carlson's letter. At the final hearing, however, the plaintiff's engineer, Mr. Fredette, stated that the connector road issue was not resolved because the plaintiff felt the proposed road through Lots 32 and 55 was impractical and was not required by the regulations. He then explained once again that the plan provided for a second access through the Jollimore parcel, but he acknowledged that such an access would not be available until the parcel was developed because the plaintiff did "not have access or right to [the] property" at that time. It is clear from the record, therefore, that the plaintiff was aware of the safety concerns and Mr. Carlson's proposed solution, but chose to submit the plan as originally drawn. This is further evidenced by Mr. Fredette's statement to the Board that it was the plaintiff's "intent ... to get the project approved as ... presented...."

The Board voted to deny the plaintiff's subdivision application on September 9, 1987. After the motion to approve the plan failed, the plaintiff was told that "the Board felt that the major concern, the length of the road, lack of connector road, ha[d] not been addressed." Mr. Fredette, who appeared on behalf of the plaintiff, asked the Board to state the specific regulations which were the basis for the denial. The chairperson of the Board assured him that K & P would receive a letter clearly stating the reasons for the denial. Approximately a week later, K & P received a letter from the Board which stated that "[t]he reasons for this denial are failure to address the Zoning Ordinance and Subdivision Regulation requirements, detailed in correspondence, and, incorporated by reference herein...." The letters from Mr. Carlson, the Rockingham County Conservation District, the Plaistow Fire Department, the Plaistow Police Department, the Plaistow Highway Department and the Highway Safety Committee were attached to the Board's letter.

After receiving the Board's letter, the plaintiff appealed the...