Ouellette v. Town of Kingston

• Decision Date: 15 August 2008
• Docket Number: No. 2007–589.,2007–589.
• Court: New Hampshire Supreme Court
• Parties: Scott OUELLETTE and another. v. TOWN OF KINGSTON.

157 N.H. 604

956 A.2d 286

Scott OUELLETTE and another.

v.TOWN OF KINGSTON.

No. 2007–589.

Supreme Court of New Hampshire.

Argued: May 21, 2008.

Opinion Issued: Aug. 15, 2008.

Michael L. Donovan, of Concord, by brief and orally, for the plaintiffs.

Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the intervenor, Konover Development Corporation.

Baldwin, Callen & Ransom P.L.L.C., of Concord (Carolyn W. Baldwin on the brief), for the New Hampshire Preservation Alliance, as amicus curiae.

HICKS, J.

The plaintiffs, Scott Ouellette and other Kingston residents, appeal an order of the Superior Court (McHugh, J.) affirming the decision of the Town of Kingston Zoning Board of Adjustment (ZBA) granting approval to the intervenor, Konover Development Corporation (Konover), to construct a supermarket within the town's historic district. we affirm.

The trial court found or the record supports the following. In April 2006, Konover applied to the Town of Kingston Historic District Commission (HDC) for a certificate of approval to construct a supermarket on an eleven-acre lot abutting Route 125 and Main Street in Kingston. See RSA 676:9 (1996). By ordinance, the entire lot is considered to be within the town's Historic District I due to the lot's frontage within that district, although two-thirds of the lot actually lies within the rural residential district. Kingston Zoning and Building Code, art. 4.10 (hereinafter Historic District Regulations ), § 4.10.2. Developers wishing to build within the town's historic district are required to obtain a certificate of approval from the HDC before applying for a building permit. Id. § 4.10.6; RSA 676:9, II.

Kingston's Historic District I is primarily located along Main Street and extends 350 feet on either side of the street. Historic District Regulations § 4.10.2. The Historic District Regulations describe Historic District I and the uses permitted within the district, in pertinent part, as:

[A]n integrated area of mixed uses being predominately residential with small retail businesses for convenience shopping....

In this District, the following uses will be permitted in a manner not inconsistent with the character of the District[ ]:

....

b. Retail stores principally designed to serve shoppers from their community....

Id. § 4.10.4.1.

When reviewing an application, the HDC is required to consider the following factors, among others:

a. The effect that the exterior façade of the building will have when viewed in relation to the surrounding buildings in the district.

b. The change, if any, in the amount of noise, congestion and traffic that the proposed building or use will create in the district.

c. Whether the proposal is of a design, or of materials, or for a purpose or use inconsistent with and detrimental or injurious to buildings and purposes or uses upon adjoining lands and whether such proposal is such that it will detract from the character and quiet dignity of the Kingston Historic District.

Id. § 4.10.9.

After holding several hearings, the HDC denied Konover's application for the following reasons: (1) the proposal did not accord with the district's description and permitted uses because the 36,000–square–foot proposed supermarket is not a small retail business as compared to other retail businesses in the district, which are all smaller than 4,000 square feet, and because it is not principally designed to serve Kingston residents; (2) the increase in traffic and noise "would seriously impact the residential character" and "negatively impact the ‘walkable’ nature" of the district; (3) the proposal "was not of a design and purpose consistent with adjoining lands, and ... would detract from the character and quiet dignity" of the district; and (4) the proposal was "contrary to the wording and the intent of the Master Plan," which provides that "[t]o the extent possible, planning efforts will direct development ... away from areas of historic character." Konover appealed the HDC's decision to the ZBA pursuant to RSA 676:5 (1996).

The ZBA held a public hearing on the application, at which new evidence was presented. An issue arose as to the standard of review the ZBA should apply to the HDC's decision. The plaintiffs argued for an "error" standard of review, which their attorney described as: "If [the] record [before the HDC] has enough evidence in it to support the decisions and the determinations that the [HDC] made, ... you have to defer to that judgment.... The standard is error, did they make an error in how they viewed the evidence and how they interpreted your ordinance?"

In its notice of decision, the ZBA stated that it reviewed the HDC's decision "to determine whether the ZBA felt that the HDC ha[d] ‘erred’ in making its decision." The ZBA concluded that all of the HDC's findings were "in error" and granted approval to Konover to construct the supermarket. The record reveals that the ZBA actually held a de novo hearing on the application and made its own, separate findings. The ZBA also noted in a footnote that although it did not believe the applicable standard of review was as "onerous" as that championed by the plaintiffs, "based on the evidence," the ZBA would have reached the same conclusion under the plaintiffs' proposed standard of review.

In addition, the ZBA specifically found that: (1) the proposed supermarket is consistent with the other uses in the historic district; (2) "the proposed supermarket is relatively small"; (3) the store is "principally designed to serve shoppers from Kingston"; (4) the increase in traffic and noise would not be significant; (5) "there would be no impact on the ‘walkable’ nature" of the district; (6) "[t]he proposed building will not be detrimental or injurious to buildings or purposes or uses upon adjoining lands and will not detract from the character and quiet dignity" of the district; and (7) the proposal is consistent with the Master Plan.

The plaintiffs appealed to the superior court, arguing, inter alia, that the HDC's findings are entitled to deference and, therefore, the ZBA applied an incorrect standard of review. The court disagreed and ruled that, pursuant to the overall statutory scheme, the proper standard of review is de novo. The court noted, however, that if we were to hold on appeal that de novo review was improper and that a more deferential standard applies, such as clear error, there was "no basis for [the] Court to find clear error in the HDC's decision."

On appeal the plaintiffs argue that the superior court erred by: (1) declining to find that clear error was the ZBA's proper standard of review; (2) affirming the ZBA decision when the court found no basis for clear error in the HDC decision; (3) affirming the ZBA decision where the ZBA substituted its judgment for the judgment of the HDC; and (4) giving deference to the ZBA's interpretation of the Historic District Regulations.

I. Standard of Review

The plaintiffs argue that the land use statutes, when considered as a whole, contemplate that the ZBA review HDC decisions using a clear error standard of review, and that because the trial court found no basis for clear error in the HDC decision, the ZBA's decision must be reversed.

Appeals before the ZBA are governed by statute. See RSA 677:17 (1996); RSA 676:5 ; RSA 674:33 (Supp.2007). RSA 677:17 provides: "Any person or persons jointly or severally aggrieved by a decision of the historic district commission shall have the right to appeal that decision to the zoning board of adjustment in accordance with the provisions of RSA 676:5 and RSA 677:1 – 14." RSA 677:17. RSA 676:5 provides that appeals to the ZBA "concerning any matter within the board's powers as set forth in RSA 674:33 may be taken by any person aggrieved or by any officer, department, board, or bureau of the municipality affected by any decision of the administrative officer." RSA 676:5, I. The parties do not dispute that the HDC qualifies as an "administrative officer" under the statute.

They do dispute, however, the proper interpretation of RSA 674:33, which provides, in pertinent part:

I. The zoning board of adjustment shall have the power to:

(a) Hear and decide appeals if it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of any zoning ordinance adopted pursuant to RSA 674:16....

....

II. In exercising its powers under paragraph I, the zoning board of adjustment may reverse or affirm, wholly or in part, or may modify the order, requirement, decision, or determination appealed from and may make such order or decision as ought to be made and, to that end, shall have all the powers of the administrative official from whom the appeal is taken.

RSA 674:33, I, II. The trial court ruled that this language suggests that what is contemplated is a de novo review.

We review the trial court's statutory interpretation de novo. We are the final arbiters of the legislature's intent as expressed in the words of the statute considered as a whole. We first examine the language of the statute, and, where possible, ascribe the plain and ordinary meanings to the words used. When a statute's language is plain and unambiguous, we need not look beyond it for further indication of legislative intent, and we refuse to consider what the legislature might have said or add language that the legislature did not see fit to incorporate in the statute.

Town of Rye Bd. of Selectmen v. Town of Rye Zoning Bd. of Adjustment, 155 N.H. 622, 624, 930 A.2d 382 (2007) (quotation and citation omitted).

The plaintiffs argue that, pursuant to the overall statutory scheme, the ZBA is required to apply a clear error standard of review to HDC decisions. "[C]lear error" is defined as a "decision or action that appears to a reviewing [body] to have been unquestionably erroneous." Black's Law Dictionary 582 (8th ed.2004). The plaintiffs define "error" as: ...