Travers v. Town of Troy

Decision Date09 June 2003
Docket NumberNo. 2002-483.,2002-483.
Citation825 A.2d 493
CourtNew Hampshire Supreme Court

Marshall Law, of East Kingston (Keri J. Marshall on the brief), and Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (Francis X. Quinn on the brief and orally), for the petitioner.

Fernald, Taft, Falby & Little, P.A., of Peterborough (Silas Little on the brief and orally), for the respondent.


The petitioner, Route 12 Books & Video, appeals a Superior Court (Mangones, J.) order dismissing its planning board appeal and affirming a decision of the Town of Troy Planning Board, which denied the petitioner's application for site plan review. We affirm.

The certified record reveals the following facts. On May 3, 2000, the petitioner approached the planning board for a conceptual consultation regarding its proposal to use a building as an adult-oriented book and video store offering live entertainment. The building is located in Troy on the corner of Route 12, which is known as North Main Street, and Lawrence Road. The building is in the Highway Business District and zoned for commercial uses.

At the May 3 meeting, the planning board gave the petitioner a site plan application and checklist, reviewed the checklist with it, and advised it that the proposed project would require a major site plan review. The planning board also advised the petitioner that there were concerns about the status of Lawrence Road, which it planned to use as a private driveway. During the remainder of May and June that year, the petitioner prepared its application for site plan approval according to the checklist. It submitted the application for approval on July 1, 2000.

On August 1, 2000, the planning board gave notice of a two-part public hearing on the application, scheduled for August 16, 2000. The first part of the hearing was scheduled to decide whether the application was complete. The second part of the hearing was scheduled to receive public comment on the application and decide if the proposed site plan should be approved. At the August 16 hearing, the planning board determined that the application could not be considered complete until the petitioner could show private ownership of Lawrence Road, which, it is now agreed, is a class VI highway, and until the petitioner could show that the materials he planned to sell were not obscene. The planning board voted to continue the hearing to September 6, 2000.

At the September 6 hearing, after further discussion about the status of Lawrence Road, the planning board unanimously decided to accept the application as complete. The planning board then held a public hearing on the application's merits, addressing numerous issues relating to the petitioner's site plan such as whether it was accurate based upon the status of Lawrence Road, whether it contained proper driveway access and whether the planned parking spaces were consistent with the uses and floor plan of the building. By a 6-1 vote, the planning board rejected the petitioner's application for its inaccuracies "as stated during the discussion."

On September 8, 2000, the planning board sent a letter to the petitioner identifying three reasons for the denial of its application:

You are hereby notified that the Troy Planning Board at your public hearing on 9/6/00, denied your site plan for the following reasons.

1. The survey plan presented to the board was not accurate because the applicant assumed that the Lawrence Road is his private property that made all the boundary measurement [sic] wrong on the plan.

2. Parking requirements were inconsistent with the floor plan that was submitted with the application.

3. The driveway access approval is in question, so this site plan has no approval for the curb cut which should have been issued to the Town of Troy.

On September 25, 2000, after receiving this letter, the petitioner requested a rehearing on its application from the planning board. The planning board did not respond. The Southwest Regional Planning Commission, a private group that assists the Town of Troy with planning issues, however, gave the petitioner directions to revise and resubmit a new application to the planning board, or to appeal the planning board decision to the superior court. The petitioner's September 25 request apparently also asked to appeal the planning board decision to the zoning board of adjustment (ZBA). Again, however, neither the planning board nor any other town official responded to this request. On January 3, 2001, the petitioner resubmitted its original site plan application to the planning board to comply with the Southwest Regional Planning Commission's instructions, but this application also was returned without further response. The petitioner ultimately appealed the planning board's September 8, 2000 decision to the superior court in late January 2001.

At the superior court, the respondent, the Town of Troy (Town), moved to dismiss the petitioner's appeal, arguing that, to the extent the petitioner's suit was an appeal from an act of the planning board, it was not timely filed under RSA 677:15 (1996). The trial court denied this motion, however, finding the planning board decision ambiguous as to whether the denial was based upon planning regulations or local zoning ordinances. The superior court ruled that these ambiguities meant the planning board inadequately stated its reasons for the denial because the petitioner did not know whether to bring its appeal to the ZBA or to the superior court. See RSA 676:4, I (h) (1996).

In ruling on the Town's motion to dismiss, the trial court made no distinction between the statutory time frames for appellate review of zoning issues at the ZBA and planning issues at the superior court. Cf. Hoffman v. Town of Gilford, 147 N.H. 85, 88 (2001). Rather, the trial court found the ambiguity entitled the petitioner to ZBA review and the ZBA never responded to the petitioner's attempted appeal. In essence, the superior court ruled there was not an adequate "decision" from the Town to charge the petitioner with violating the statutory time frame.

After holding a trial on the merits of the petitioner's appeal, however, the trial court reversed its ruling on the motion to dismiss based upon our intervening decision in Hoffman, 147 N.H. at 88-89. In Hoffman, we held that when a planning board decision is based upon both zoning and planning issues, a party aggrieved by both the zoning and planning aspects of that decision must follow the respective statutory procedures for appellate review of zoning and planning issues to preserve its rights. Id. at 87-88. This means that an aggrieved party may appeal such a decision to both the ZBA and the superior court, to neither the ZBA nor the superior court or to only one forum or the other, depending upon the nature of the claim. See id. at 88.

Since the portions of this planning board decision based upon planning issues were not appealed to the superior court within thirty days, see RSA 677:15, I (Supp. 2002), the superior court ruled that it did not have jurisdiction over the petitioner's claim. The trial court then ruled that because the planning issues could not be challenged based upon jurisdictional grounds, they are presumed to support the decision. Therefore, the trial court found that, even if the zoning issue were meritorious, the planning issues based upon the site plan review regulations would support the planning board's decision and the petitioner's application would still be denied. Finally, the trial court ruled that, even if it reached the merits of the petitioner's appeal, at least one of the planning board's articulated reasons for denying the petitioner's application supported that decision and many of the planning board's reasons for denying the application were supported by evidence in the record. This appeal followed.

The petitioner raises four issues in this appeal. First, the petitioner challenges the trial court's ruling that the petitioner's planning board appeal was untimely since it followed all instructions provided by the planning board. Second, the petitioner challenges the trial court's finding that the planning board letter denying the petitioner's application for site plan review constituted a final decision of the planning board. Third, the petitioner challenges the trial court's reversal of its earlier order denying the planning board's motion to dismiss, after hearing the petitioner's appeal and taking a view of the petitioner's property. Finally, the petitioner challenges the trial court's failure to address the merits of its allegation that the planning board acted in bad faith by not following its own procedures and by thwarting the petitioner's attempts to rectify its application.

When reviewing a planning board decision, the trial court must determine on the record before it whether the decision is unreasonable or erroneous as a matter of law. See Star Vector Corp. v. Town of Windham, 146 N.H. 490, 492-93 (2001). When reviewing the trial court's decision, we will then decide whether a reasonable person could have reached the same conclusion based upon the evidence before the trial court. See id. at 493. If so, we will uphold the trial court decision unless it is legally erroneous. See id.

The petitioner's first three arguments are interrelated and based upon jurisdictional grounds, so we address them together. These arguments all challenge the trial court's ruling that it lacked jurisdiction to address the merits of the petitioner's appeal because the petitioner failed to comply with the statutory deadlines for filing an appeal from a decision of the planning board. See RSA 677:15, I.

As an initial matter, we agree with the trial court that the planning board letter denying the petitioner's site plan application constitutes an unequivocal final...

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1 cases
  • Route 12 Books & Video v. Town of Troy
    • United States
    • New Hampshire Supreme Court
    • June 9, 2003
    ...149 N.H. 569825 A.2d 493ROUTE 12 BOOKS & VIDEO, Thomas Travers (Designated Agent),v.TOWN OF TROY.No. 2002483.Supreme Court of New Hampshire.Argued: March 13, 2003.Opinion Issued: June 9, 2003.825 A.2d 494149 N.H. 571 Marshall Law, of East Kingston (Keri J. Marshall, on the brief), and Boynton, Waldron, Doleac, Woodman & Scott, P.A., of Portsmouth (Francis X ... ...

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