Motorsports Holdings, LLC v. Town of Tamworth, 2008–632.

• Court: Supreme Court of New Hampshire
• Writing for the Court: BRODERICK, C.J.
• Citation: 993 A.2d 189,160 N.H. 95
• Parties: MOTORSPORTS HOLDINGS, LLC v. TOWN OF TAMWORTH.
• Decision Date: 09 April 2010
• Docket Number: No. 2008–632.,2008–632.

160 N.H. 95
993 A.2d 189

MOTORSPORTS HOLDINGS, LLC
v.
TOWN OF TAMWORTH.

No. 2008–632.

Supreme Court of New Hampshire.

Argued: Oct. 7, 2009.
Opinion Issued: April 9, 2010.

993 A.2d 191

Devine, Millimet & Branch, P.A., of Manchester (Thomas Quarles, Jr. and Kevin M. Baum, on the brief, and Mr. Quarles orally), for the petitioner.

Rath, Young and Pignatelli, P.C., of Concord (Andrew W. Serell, on the brief and orally), for the intervenors.

BRODERICK, C.J.

160 N.H. 96

The intervenors, Amy K. Berrier and other abutters, landowners and residents of Tamworth, appeal the decision of the Superior Court (Houran, J.) that vacated and remanded the Town of Tamworth Planning Board's decision to deny the application for a special use permit sought by the petitioner, Motorsports Holdings, LLC (Motorsports). We affirm in part, reverse in part and remand.

160 N.H. 97

993 A.2d 192

I

We draw the facts from the certified record, the trial court's order, and our prior decision in Anderson v. Motorsports Holdings, 155 N.H. 491, 926 A.2d 261 (2007). Motorsports owns approximately 250 acres of land in the Town of Tamworth. It wishes to build a private country club and motorsports facility, including a "3.1–mile long, European-style road course" and structures to support the repair, servicing, and garaging of racing vehicles, as well as a hotel, restaurant, access road, and parking facilities. Construction would involve dredging and filling 14,759 square feet of wetlands and would affect 16,952 square feet of intermittent streams. In total, construction would affect at least sixteen distinct wetlands areas.

Motorsports has obtained: (1) a dredge-and-fill wetlands permit from the New Hampshire Department of Environmental Services (DES); (2) a site-specific alteration-of-terrain permit from DES; (3) a wetlands permit from the United States Army Corps of Engineers; and (4) a water quality certificate from DES. DES required Motorsports to provide a conservation easement on 107 acres of land in Sandwich to mitigate the negative environmental impacts of the project. Motorsports also had applied for a special use permit, pursuant to Tamworth's Wetlands Conservation Ordinance (WCO); however, it withdrew its application before the Tamworth Planning Board (planning board) had completed its review.

Subsequently, residents from the Town of Tamworth sought a declaratory judgment from the superior court, requesting a ruling that Motorsports would have to obtain a special use permit under the WCO before beginning construction. The court ruled that the Town was a necessary party to the action, and notified the Town that, whether or not it participated, it would be bound by the result. The Town chose not to participate. Later, on summary judgment, the trial court ruled that regardless of Motorsports' acquisition of state and federal permits, it needed to apply for a special use permit under the WCO. Motorsports appealed, arguing, among other things, that because relevant state and federal regulations were more stringent and comprehensive than the WCO, the WCO, by its own terms, was not applicable to the project and, therefore, no special use permit was required. See Anderson, 155 N.H. at 494, 926 A.2d 261. We rejected this argument and held that Motorsports was obligated to obtain the local permit. Id. at 497, 926 A.2d 261.

Before our decision was issued, however, Motorsports applied for a special use permit. In its application, Motorsports identified the percentage of wetlands on the entire site that would be affected by the project, stating:

The Project Site contains a total of 15.14 acres of combined wetlands and waterbodies, which represents 6% of the total land

160 N.H. 98

area of the parcel (251 acres).... The[ ] direct impacts [to wetlands caused by the proposed project] result in a total disturbance of approximately 31,711 square feet (0.73 acres) to the [Wetlands Conservation District], which represents approximately 4.8% of the total wetlands and waterbodies identified on-site and approximately one half of which are intermittent or seasonal streams and drainageways.

The application also identified the land area that fell within the 25–foot wetlands buffer zone governed by the WCO:

The total area of site within the 25–foot buffer to wetlands encompasses approximately 10.3 acres. The Project layout presented herein has been designed to minimize impacts to the 25–ft buffer to approximately 2.1 acres (20.4%). These

993 A.2d 193

buffer zone impacts are primarily associated with the grading of roads, access ways, and parking areas. There are no buildings of [sic] subsurface sewage disposal systems located within the 25–foot buffer area.

The application also described the design and scope of the proposed project, the particular design efforts intended to protect the wetlands, and the resulting anticipated impacts. It itemized seventeen wetland impact areas, describing (1) the nature of the existing wetland, (2) the nature of the impact that the proposed project would cause, (3) the particular section of the WCO applicable to each wetlands impact (e.g., access ways, waterways, and other uses), and (4) the particular design of the proposed project intended to minimize a direct impact to the affected wetland areas.

Both the planning board and the Tamworth Conservation Commission (TCC), including its Wetlands and Subsurface subcommittee (TCC subcommittee), reviewed the application at a series of meetings during the fall of 2006. In an effort to address concerns raised by the TCC, Motorsports presented an amended plan to the planning board on September 27. Some of the changes increased impacts to buffer zones. The planning board conducted public hearings on October 17 and November 1. During the planning board review process, Motorsports had an opportunity to make detailed presentations of its proposed project, the TCC presented its recommendation to deny the application, and members of the public presented their concerns. At the end of the November 1 hearing, the planning board concluded the public hearing portion of the review process, and Motorsports offered to propose conditions to the special use permit it was seeking. On November 6, the planning board conducted a site walk.

160 N.H. 99

On November 8, the planning board voted to deny Motorsports' application for the permit, deciding that the proposed project did not meet five of seven Section A criteria under the WCO. Motorsports appealed to the superior court, which granted leave to certain abutters and residents of Tamworth to intervene, including the appealing intervenors before us. The trial court conducted a hearing in June 2008, during which one witness, the president of Motorsports, testified and the parties presented offers of proof and legal argument. Subsequently, the trial court vacated the planning board's decision and remanded the matter. It declined to reach certain procedural issues. The intervenors appealed to this court, and Motorsports cross-appealed.

II

The trial court's review of the planning board's decision was governed by RSA 677:15, V (Supp. 2009), 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 the balance of probabilities, on the evidence before it, that said decision is unreasonable." The trial court's review is limited:

[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. The appealing party bears the burden of persuading the trial court that, by the balance of probabilities, the board's decision was unreasonable. The review by the superior court is not to determine whether it agrees with the planning board's findings, but to determine whether there is evidence upon which they could have been reasonably based.

993 A.2d 194

Upton v. Town of Hopkinton, 157 N.H. 115, 118, 945 A.2d 670 (2008) (citations omitted); see also RSA 677:15, V. We will uphold a trial court's decision on appeal unless it is unsupported by the evidence or legally erroneous. Upton, 157 N.H. at 118, 945 A.2d 670.

In this case, the trial court did not reach the issue of whether there was sufficient evidence upon which the planning board could reasonably deny Motorsports' application for a special use permit. Rather, the trial court vacated the planning board's decision and remanded after concluding that the board committed three errors of law. First, it concluded that the planning board erred in voting on the project as a whole by applying the Section A criteria under the WCO to both the access way and non-access way impact areas. Second, it concluded that by voting on the project as a

160 N.H. 100

whole, the planning board...