New England Brickmaster, Inc. v. Town of Salem

• Citation: 133 N.H. 655,582 A.2d 601
• Decision Date: 09 November 1990
• Docket Number: No. 89-207,89-207
• Parties: NEW ENGLAND BRICKMASTER, INC. v. TOWN OF SALEM, et al.
• Court: New Hampshire Supreme Court

Page 601

582 A.2d 601

133 N.H. 655

NEW ENGLAND BRICKMASTER, INC. v. TOWN OF SALEM, et al.

No. 89-207.

Supreme Court of New Hampshire.

Nov. 9, 1990.

Law Offices of Reginald L. Marden P.C. (Reginald L. Marden argued and Vincent Youmatz, Andover, Mass. on the brief), for plaintiff.

Donahue, McCaffrey & Tucker, (Robert D. Ciandella, Exeter on the brief and orally), for defendants.

Timothy Bates, by brief for the New Hampshire Mun. Ass'n, as amicus curiae.

JOHNSON, Justice.

This land use case involves an appeal from an order of the Superior Court (McHugh, J.) affirming the decision of the Town of Salem Planning Board (board) to conditionally approve the plaintiff's site plan application. The plaintiff, New England Brickmaster, Inc. (Brickmaster), argues that neither the enabling statute, RSA 674:43 and :44, nor the town's regulations authorize the board to impose the condition, which requires that the plaintiff pay a portion of the cost of certain off-site roadway improvements. We find Brickmaster's arguments unpersuasive and affirm the trial court's decision.

On August 15, 1988, Brickmaster applied to the board for approval of a site plan to construct two industrial buildings on adjoining lots of land on Northwestern Drive in Salem. The proposed buildings were to be constructed on an eighteen-lot industrial subdivision which had received subdivision approval from the board approximately a year earlier. The board approved Brickmaster's site plan on October 26, 1988, but conditioned the approval on the requirement that Brickmaster contribute $39,397.51 for future off-site roadway improvements. The board's decision was based on the results of a study, commissioned by the town, which identifies problem traffic areas, suggests corrective changes to the roadways, and gives preliminary cost estimates for construction of those identified roadway improvements. We note that Brickmaster has supplied a three-year letter of credit in the amount of $39,397.51 to satisfy the condition, and that if the improvements are not underway by the end of that period, the letter of credit will expire and not be renewed.

Following the board's decision, Brickmaster filed a petition in superior court to enjoin the board from conditioning the commencement of construction on the site on the payment of the $39,397.51. The Town of Salem and the members of the planning board were named as defendants (hereinafter "the defendant"). The Court (Mohl, J.), finding that Brickmaster was not likely to succeed on the merits of its claim, denied the request for injunctive relief. Brickmaster then appealed the board's decision to the superior court, pursuant to RSA 677:15. The Court (McHugh, J.) affirmed the board's decision following a hearing on the merits.

On further appeal to this court, Brickmaster properly raises two legal issues: first, whether RSA 674:43 and :44, governing site plan review, provide local planning boards with the authority to condition the approval of site plans on payment for off-site improvements; and second, whether the site plan review regulations adopted by the Town of Salem authorize the board to collect funds or allocate costs for off-site improvements as part of the site plan approval process. Additionally, Brickmaster argues in its brief that the actions of the board constitute an unconstitutional taking. As this issue was neither raised below nor mentioned in Brickmaster's notice of appeal, we will not consider it here. Dombrowski v. Dombrowski, 131 N.H. 654, 662, 559 A.2d 828, 833 (1989); see also Sup.Ct.R. 16(3)(b). Finally, since Brickmaster did not appeal the factual issue of whether the amount it was required to pay for off-site improvements bore a rational nexus to the proposed change in use of the site, see Land/Vest Props., Inc. v. Town of Plainfield, 117 N.H. 817, 823, 379 A.2d 200, 204 (1977), that issue is not before us.

I. Statutory Authority

As a preliminary matter, we note that planning boards have the authority to impose conditions upon the approval of a site plan. See RSA 676:4, I(c) (Supp.1989); RSA 674:44, IV (Supp.1989); see also Sklar Realty v. Town of Merrimack, 125 N.H. 321, 327, 480 A.2d 149, 152 (1984). Thus, the question here is whether the board was authorized to impose the particular off-site roadway improvement condition at issue in this case.

To determine the meaning of a statute, we first look to see if the language used is clear and unambiguous. See Town of Rye v. Public Serv. Co. of N.H., 130 N.H. 365, 369, 540 A.2d 1233, 1235, cert. denied, 488 U.S. 981, 109 S.Ct. 529, 102 L.Ed.2d 561 (1988). Both the plaintiff and the defendant contend that the statutory language relevant to this dispute clearly supports their respective positions. Brickmaster asserts that the power to condition site plan approval on the funding of off-site improvements is not among the powers granted to planning boards by the legislature in RSA 674:43 and :44. The defendant, on the other hand, argues that RSA 674:44, II(e) and RSA 674:44, IV (Supp.1989) clearly authorize planning boards to condition site plan approval on the improvement of off-site streets. We find neither argument to be persuasive.

Brickmaster offers several arguments in support of its position. First, it points out that nothing in RSA 674:44 specifically addresses off-site improvements. Second, Brickmaster maintains that the provisions of RSA 674:44 logically relate to on-site conditions. It argues that this position is bolstered by the fact that one provision, RSA 674:44, II(d), refers to "streets within the site."

We find that these arguments offer no support for Brickmaster's contention that RSA 674:44 clearly provides no authority for a planning board to condition site plan approval on off-site improvements. Nothing in the statute clearly limits its scope to on-site improvements. At best, Brickmaster's arguments are relevant to the interpretation of the statute only if it is found to be ambiguous. Even in that context, we find them to be unpersuasive. As for RSA 674:44, II(d), its reference to streets within the site is logical in view of its purpose, which is to require that those streets properly coordinate with other features of the town. Its language creates no inference concerning the interpretation of "streets" in other provisions of the statute.

The defendant contends that two provisions provide clear statutory authority for the board's actions: RSA 674:44, II(e), which states that site plan review regulations may require "suitably located streets of sufficient width to accommodate existing and prospective traffic"; and RSA 674:44, IV (Supp.1989), which states that such regulations may condition approval on "the extent to which and the manner in which streets shall be graded and improved." The defendant argues that these provisions necessarily refer to off-site streets. This is so, the defendant contends, because land awaiting site plan approval would be undeveloped, and such land could not yet have streets which could be improved, or over which any existing traffic could flow.

We find this argument to be flawed. Site plan approval may also be required when the use of land is to be changed, as well as when the land is initially developed. The legislature made this clear in 1987 when it amended RSA 674:43, I (Supp.1989) to expressly authorize the review of site plans for the "change or expansion of use" of land. See also RSA 674:44, II(a) (Supp.1989). It follows that land pending site plan approval may have existing streets and traffic. Therefore, while the provisions cited might be interpreted as providing planning boards with the authority to condition site plan approval on off-site improvements, the language does not on its face require such a result.

In addition, the defendant argues that RSA 674:44, II(e) cannot be construed consistently with RSA 674:44, II(d) if the streets referred to in the former refer only to those on-site. However, as discussed above, the language of RSA 674:44, II(d) does not clearly fix the meaning of the word "streets" in RSA 674:44, II(e), nor does it resolve the ambiguity of that word's scope.

The provisions discussed above are ambiguous as to whether a planning board has the authority to condition site plan approval on an applicant's contribution to off-site improvements. We must therefore look to the statute as a whole in order to determine the intent of the legislature in this regard. See Sklar Realty v. Town of Merrimack, 125 N.H. at 327, 480 A.2d at 152.

Brickmaster argues that the statutes at issue must be construed so as to prohibit conditions like that imposed by the board if they are to be consistent with the statutory framework of which they are a part, and with the relevant case law. This argument is based on differences between the provisions concerning site plan review, RSA 674:43 and :44, and similar provisions regarding the regulation of subdivisions, RSA 674:35 and :36. It has been established that planning boards may condition the approval of subdivisions on the applicant making contributions to off-site improvements. Land/Vest Props., Inc. v. Town of Plainfield, 117 N.H. 817, 820, 379 A.2d 200, 202-03 (1977). Brickmaster asserts that it is RSA 674:36, II(a) and RSA 674:36, III(c) (Supp.1989) which authorize planning boards to exercise this power in the subdivision approval process, and points out that similar provisions do not exist in the site plan review enabling statute. Therefore, Brickmaster argues, interpreting RSA 674:44 to grant the same power at the site plan approval stage would render those provisions "redundant or superfluous." See Merrill v. Great Bay Disposal Serv., 125 N.H. 540, 543, 484 A.2d 1101, 1103 (1984).

We first address RSA 674:36, III(c) (Supp.1989). RSA 674:36, III (Supp.1989) and RSA 674:44, IV (Supp.1989) are substantially identical, with the exception that the latter lacks language equivalent to that contained in RSA 674:36, III(c) (S...