Ltd. Editions Props., Inc. v. Town of Hebron

• Decision Date: 22 September 2011
• Docket Number: No. 2010–586.,2010–586.
• Citation: 162 N.H. 488,34 A.3d 688
• Parties: LIMITED EDITIONS PROPERTIES, INC. v. TOWN OF HEBRON.
• Court: New Hampshire Supreme Court

162 N.H. 488
34 A.3d 688

LIMITED EDITIONS PROPERTIES, INC.
v.
TOWN OF HEBRON.

No. 2010–586.

Supreme Court of New Hampshire.

Argued: June 16, 2011.Opinion Issued: Sept. 22, 2011.

[34 A.3d 691]

Martin, Lord & Osman, P.A., of Laconia (Willard G. Martin, Jr. and Suzanne S. McKenna on the brief and orally), for the petitioner.

Mitchell Municipal Group, P.A., of Laconia (Judith E. Whitelaw on the brief and orally), for the respondent.

CONBOY, J.

[162 N.H. 489] The petitioner, Limited Editions Properties, Inc., appeals an order of the Superior Court ( Vaughan, J.) upholding a decision to deny the petitioner's subdivision application by the planning board of respondent Town of Hebron (Town). We affirm.

The following facts are taken from the record. The petitioner owns 112.5 acres of property in Hebron on the northwest end of Newfound Lake with frontage on West Shore Road. A portion of the lot lies within the Hebron lake district, and the remainder lies within the rural district. The property, which is located close to Hebron Bay, includes 37.4 acres of steeply sloping land. The petitioner applied to the Hebron Planning Board (Board) for approval to develop a twenty-lot subdivision on the property. The proposed access road, leading from West Shore Road, would be located in the Hebron lake district. The road would be 2,600 feet in length, with a 10% grade for [162 N.H. 490] about 1,600 to 1,700 feet, and would have a “switch back” with a 150–foot curve radius. Construction of the road would include constructing three substantial retaining walls, topped with a six-foot metal fence: one retaining wall would be 255 feet long, forty to fifty feet wide, and twenty-six feet high in the center; another would be ninety feet long and seventeen feet high in the center; the third would be seventy feet long and ten feet high in the center. Hebron Bay is down-slope from the proposed road.

Issues relating to the petitioner's subdivision application are before us for a second time. Previously, the Board determined that because the petitioner had materially revised its plan, it was required to submit a new application. We affirmed the trial court's reversal of the Board's decision. See Limited Editions Properties, Inc. v. Town of Hebron, No. 2007–0791 (N.H. June 30, 2008). When the Board resumed consideration of the application, the petitioner requested that it grant preliminary conditional approval of the plan's “overall concept” before the petitioner sought required state and federal permits. The petitioner particularly desired preliminary approval of the proposed road and lot layout. It acknowledged that the plan would not meet then-current state regulations; it intended to revise the plan to obtain the necessary permits after the Board granted preliminary approval. Once it obtained the permits, the petitioner intended to return to the Board for consideration of any necessary changes to the plan. However, the Board determined that it would not approve the subdivision application in stages; rather, it would either conditionally approve the application or deny it.

After holding several hearings on the application, the Board entered into deliberative session, discussed various aspects of the application, and voiced numerous concerns. A motion to deny the application was introduced and seconded, and after further discussion, three of the five members

[34 A.3d 692]

of the Board voted to deny the application. The petitioner subsequently appealed to the superior court, which upheld the Board's decision. This appeal followed.

The petitioner argues that: (1) the Board failed to provide a record capable of meaningful review; (2) the Board denied it a full and fair opportunity to be heard; (3) the trial court erred in concluding that a preliminary conditional approval by the Board would preclude it from subsequent review; and (4) the trial court erred in finding that the Board's decision, on the balance of probabilities, was reasonable.

The trial court's review of a planning board's decision is governed by RSA 677:15, V (Supp.2010), which provides that the trial court “may reverse or affirm, wholly or partly, or may modify the decision brought up for review when there is an error of law or when the court is persuaded by [162 N.H. 491] the balance of probabilities, on the evidence before it, that said decision is unreasonable.” The trial court's review is limited. Motorsports Holdings v. Town of Tamworth, 160 N.H. 95, 99, 993 A.2d 189 (2010). It must treat the factual findings of the planning board as prima facie lawful and reasonable and cannot set aside its decision absent unreasonableness or an identified error of law. Id. The appealing party bears the burden of persuading the trial court that, by the balance of probabilities, the board's decision was unreasonable. Id. The trial court is not to determine whether it agrees with a planning board's findings, but rather whether there is evidence upon which they could have been reasonably based. Id. Our review is similarly limited. We will uphold a trial court's decision on appeal unless it is unsupported by the evidence or legally erroneous. Id.

I. Adequacy of the Record

We first address the petitioner's argument that the Board failed to provide a record capable of meaningful review. RSA 676:4, I(h) (Supp.2010) requires that: “In case of disapproval of any application submitted to the planning board, the ground for such disapproval shall be adequately stated upon the records of the planning board.” We have explained that this statutory requirement anticipates an express written record that sufficiently apprises an applicant of the reasons for disapproval and provides an adequate record of the board's reasoning for review on appeal. See Motorsports, 160 N.H. at 103, 993 A.2d 189. A written denial letter combined with the minutes of a planning board meeting can satisfy the statutory requirement. Id. Ultimately, whether planning board records adequately state the grounds for disapproval depends on the particular case. Id.

The Board did not enumerate the reasons for denying the application in its written notice of decision. However, the trial court ruled that the Board identified the basis for its decision on the record at its January 6, 2010 meeting. The court concluded, “[T]he record shows that the three members who voted against approval did so based on: aesthetics (damage to the scenic Lake District), safety concerns, and environmental concerns, including erosion and drainage.”

Before addressing the merits of the petitioner's argument, we note that the record in this case includes unofficial transcripts prepared by the petitioner. The trial court relied upon these transcripts when reviewing the Board's decision, and this reliance is not challenged by either party. Under these circumstances, we assume, without deciding, that the unofficial transcripts are part of the record subject to our review.

[34 A.3d 693]

Citing Motorsports, the petitioner argues that the record is deficient because the votes cast to deny the application reflected “individual sentiments rather than collective consensus,” and that the Board's “general [162 N.H. 492] denial” of the application was not adequate. The petitioner argues that only two Board members cited aesthetics as a reason for denial and that the board “fail[ed] to distinguish the particular reasons, explanations or finding[s] directed to any environmental and safety concerns.” It contends that the “individual statements” in the record do not constitute collective reasoning.

This case, however, is distinguishable from Motorsports. In Motorsports, the town's planning board voted that the petitioner's application violated five of the seven “Section A” criteria of the town's wetlands conservation ordinance (WCO). Id. at 99, 993 A.2d 189. We concluded that the record of the board's proceedings was flawed in two respects. Id. at 104, 993 A.2d 189. First, the minutes of the subject meeting indicated that some board members had incorrectly interpreted Section A of the ordinance to apply to both access way and non-access way impact areas, when, in fact, it applied to only non-access way impact areas. Id. at 104–05, 993 A.2d 189. “Thus, when the board voted on the project as a whole, it [was] unknown whether board members applied Section A properly.” Id. (emphasis added). Second, the minutes did not reflect which of the sixteen wetland impact areas or buffer zones subject to the WCO the board determined violated the applicable criteria. Id. at 106, 993 A.2d 189. Further, the record demonstrated that “virtually no discussion occurred prior to the board's vote that Motorsports' application failed to satisfy several [of the] criteria.” Id.

We concluded:

[T]he WCO is not a zoning ordinance under which the planning board determines whether a proposed project constitutes an appropriate use of land. Rather, it sets forth a regulatory permitting scheme governing the use of and impact upon wetlands. Thus, the planning board's task is to review the application, and identify any deficiencies it perceives regarding particular wetland impact areas.

Under the circumstances of this case, we hold that casting separate votes on each of the seven Section A criteria with respect to the project as a whole, without providing reasons, explanations or findings directed to adversely affected wetland areas or buffer zones, does not constitute an adequate statement for the grounds of disapproval necessary to comply with RSA 676:4, I(h).

Id. at 108, 993 A.2d 189.

Here, it was not error for the trial court to conclude that the record adequately reflects the Board's reasons for denying the application. Unlike [162 N.H. 493] in Motorsports, the Board discussed many aspects of the proposed plan during the deliberative session and identified concerns and unresolved issues regarding its impact on aesthetics, the environment, and the safety of persons and property. After a Board member moved to...