Sklar Realty, Inc. v. Town of Merrimack, s. 83-327

• Decision Date: 31 July 1984
• Docket Number: Nos. 83-327,83-471,s. 83-327
• Citation: 480 A.2d 149,125 N.H. 321
• Parties: SKLAR REALTY, INC. v. TOWN OF MERRIMACK and Agway, Inc.
• Court: New Hampshire Supreme Court

Page 149

480 A.2d 149

125 N.H. 321

SKLAR REALTY, INC. v. TOWN OF MERRIMACK and Agway, Inc.

Nos. 83-327, 83-471.

Supreme Court of New Hampshire.

July 31, 1984.

Hamblett & Kerrigan P.A., Nashua (Joseph M. Kerrigan, Nashua, on the brief and orally), for plaintiff.

Bossie, Kelly & Hodes, Manchester (Robert F. Bossie, Manchester, on the brief and orally), for defendant Town of Merrimack.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Robert L. Chiesa (orally) and William S. Gannon, Manchester, on the brief), for defendant Agway, Inc.

SOUTER, Justice.

Each of these consolidated appeals challenges the action of the superior court in adopting the recommendations of its Master (Walter L. Mitchell, III, Esq.). In the first case, the plaintiff petitioned the superior court for a writ of certiorari under RSA 36:34 (Supp.1983) (current version at RSA 677:15 (Supp.1983)) to review the actions of the Planning Board of Merrimack (the board). The board had granted the application of the defendant Agway, Inc. for approval to construct a dry feed plant. The Superior Court (Flynn, J.) denied relief on all but one issue, on which it remanded the matter to the board for further consideration. The plaintiff excepted to the denial of relief and to the order of remand. In the second case, the plaintiff filed a further petition for a writ of certiorari to review the board's action in response to the order of remand. The court adopted the master's recommendation that the petition be denied, and the plaintiff excepted. On the limited grounds described below, we reverse in each case.

The plaintiff owns land in Merrimack abutting the Agway property. The latter is zoned for industrial use, but it also lies within an area designated as wetland. In 1981 and early 1982, Agway carried on discussions with town officials, including the planning board, about its proposal to build a plant for manufacturing dry animal food on the land.

On January 12, 1982, Agway submitted a site plan and applied to the town's Zoning Board of Adjustment (ZBA) for a special exception to the zoning ordinance to allow it to build in a wetland area. After a hearing on January 28, 1982, the ZBA granted the exception subject to four conditions.

Agway then submitted its site plan to the board and sought its approval. The board considered the plan in the exercise of power granted to it by the town to review site plans for non-residential uses of property. RSA 36:19-a (Supp.1983) (current version at RSA 674:43, :44 (Supp.1983)). The board gave notice of the application and of a public hearing on it. After the hearing on February 16, 1982, the board granted preliminary approval subject to certain conditions.

Agway continued to revise its plans in response to the board's concerns and later submitted a second site plan that differed from the first. The new plan no longer depicted a so-called "ponded" area as part of the drainage system. It indicated the wet areas of the tract in greater detail and showed one of them where Agway's warehouse was supposed to be built.

On July 13 and July 27, 1982, the board held further public hearings on Agway's proposal. Between those hearings, the board inspected the properties affected and encouraged Agway to continue to modify its plans. Among those who testified on July 27 was an expert engineering witness called by the plaintiff. At the end of that hearing, the board voted to approve the application subject to these eleven conditions:

"1. External operations at the facility to be limited to from seven in the morning to eleven in the evening.

2. Quantitative data be submitted on noise level external to the site in varying increments of 100 to 500 feet represented in decibels or known levels to show that it will be equal to or less than what is there now.

3. Sewer hook up being granted.

4. Design for invert connection to the interceptor be acceptable to the town and the state.

5. Receipt of Air Resources Permit.

6. The bond being posted for the construction of Star Drive.

7. Installation of fire hydrant and sprinkler system in accordance with fire department regulations and consideration be given to adequacy of water pressure.

8. Receipt of Dredge and Fill permit and comments of Conservation Commission.

9. The development of an odor model with concentrations as it shall affect the site and surrounding area for the board and engineering review.

10. Receipt of easement from the B & M Railroad for drainage and sewer crossings.

11. Submittal of insect and rodent control plan."

By a letter to Agway dated August 4, 1982, the board added two more conditions about the height and color of the building proposed.

Between July 27, 1982 and January 17, 1983, Agway submitted information to the board to demonstrate that it had met those conditions that could be satisfied before construction. No one told the plaintiff or its counsel about these submissions, and they knew nothing about them. On January 17, 1983, without notice to the plaintiff, the board found that all conditions had been satisfied and signed the site plan.

In August 1982, the plaintiff brought the first of these statutory petitions for writs of certiorari to review the board's action taken on July 27, 1982. RSA 36:34 (Supp.1983). The court issued the writ and the master held a hearing on April 4, 1983, in the course of which the plaintiff learned of the information submitted to the board after July 27, 1982. The scope of the hearing was then enlarged to consider such material, and the parties presented testimony on the reasonableness of the board's conclusion that Agway had met the conditions.

On July 7, 1983, the master found for the defendants on all issues except one. He ruled that the board had been wrong to find that Agway had obtained an easement from the Boston & Maine Railroad in fulfillment of condition 10. He found that Agway had provided the board with evidence of nothing more than a revocable license. He therefore remanded the issue of compliance with condition 10 to the board. The plaintiff claims that the master committed errors, including issuing the order of remand, which we will consider in detail below.

On July 26, 1983, the board reconsidered Agway's compliance with condition 10, in accordance with the order of remand. The record reveals that the manner in which the board conducted its hearing on that issue is subject to dispute, but it is clear that no one testified for the plaintiff at that time. Agway submitted evidence that it had obtained the required easement, and the board so found. The plaintiff then filed the second petition for certiorari to review this action by the board. The plaintiff claimed that the board had violated the plaintiff's right to be heard through his counsel at that hearing. The master ruled against the plaintiff on the ground that it had no right to be heard. The plaintiff's appeal from this decision was consolidated with the appeal from the order in the earlier certiorari proceeding.

Although the plaintiff has made six claims of error in these consolidated appeals, we believe that a consideration of three questions is dispositive: (1) In the exercise of authority derived from RSA 36:19-a (Supp.1983), may a planning board attach conditions to its approval of a non-residential use of land; (2) does an abutter of such land have a right to be heard on the question whether the applicant has complied with such conditions; (3) does Agway have a valid special exception based on the ZBA's approval of the first plan?

The plaintiff's position on the first issue is that the statute required the board to approve or disapprove the application as submitted and without conditions. The plaintiff relies on the statutory language requiring the board to "approve or disapprove within 90 days after submission." RSA 36:23, I(c) (Supp.1983) (current version at RSA 676:4, I(c) (Supp.1983)). The statute makes no express provision for approval of non-residential uses subject to conditions. Agway responds to this position by invoking the terms of the Merrimack Zoning Ordinance, authorizing the board to "modify" as well as approve or disapprove an application, and claims there is authority for this provision in such prior cases of this court as Town of Seabrook v. Tra-Sea Corporation, 119 N.H. 937, 410 A.2d 240 (1979).

We do not find either party's authority compelling. The cases cited by Agway involved a planning board's authority to pass on subdivision requests, for which the statute made express provision for a "condition precedent" for approval. RSA 36:22 (current version at RSA 674:36, III (Supp.1983)). Here we are dealing with authority over non-residential use under RSA 36:19-a (Supp.1983). On the other hand, the statute quoted by the plaintiff relates to a planning board's responsibility in subdivision cases as well as non-residential use cases like this one, so that its alternatives of approval or disapproval cannot be read as an absolute bar to conditional approval.

Since no statute expressly forbids a conditional approval, we believe the issue must be considered on a functional analysis of the statute as a whole. See Bilodeau v. Antal, 123 N.H. 39, 455 A.2d 1037 (1983). We begin by considering the kinds of conditions that a board might impose. This case illustrates the two basic varieties: conditions subsequent, restricting the use of the property after the building is built (e.g. about hours of operation), and conditions precedent, to be fulfilled before the building may be built (e.g. about obtaining an easement for a drainage pipe).

If the board could not impose a condition subsequent, both towns and applicants would lack a tool to adjust the pursuit of private interests to reasonable regulation in the public interest. The plaintiff has not presented any reason to construe the statute to preclude such conditions, and we hold the master did not err in ruling that they were allowable.

If the board could not...