Anthony v. Town of Plaistow

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RICHARD ANTHONY & a. v. TOWN OF PLAISTOW

No. 2021-0410

Supreme Court of New Hampshire

May 16, 2023

Argued: February 23, 2023

Law Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd on the brief and orally), for the plaintiffs.

Wadleigh, Starr & Peters, PLLC, of Manchester (Charles F Cleary and William P. Reddington on the brief, and Charles F Cleary orally), for the defendant.

Sulloway & Hollis, P.L.L.C., of Concord (Derek D. Lick on the brief and orally), for the intervenor.

DONOVAN, J.

The plaintiffs, Richard and Sanaz Anthony, appeal from an order of the Superior Court (Wageling, J.) affirming a decision of the Town of Plaistow's (Town) Planning Board granting site plan approval for the development and consolidation of two lots by the intervenor, Milton Real Properties of Massachusetts, LLC. On appeal, the plaintiffs argue that the superior court erred by: (1) ruling that it lacked subject matter jurisdiction to address the plaintiffs' argument that the proposed use was not permitted in the zoning district; (2) finding that the planning board made a sufficient regional impact determination pursuant to RSA 36:56 (2019); and (3) ruling that the planning board's decision granting site plan approval was otherwise lawful and reasonable. We conclude that the superior court did not err in dismissing the plaintiffs' zoning argument, in concluding that the planning board acted reasonably when it implicitly found that the project would not have a regional impact, and in finding that the planning board's decision was otherwise lawful and reasonable. Accordingly, we affirm.

I. Facts

We begin by noting that this appeal is part of a long-litigated dispute between the plaintiffs and the Town regarding the intervenor's proposed development of property abutting the plaintiffs' home. The plaintiffs have previously appealed the planning board's decisions related to this project to the superior court on three separate occasions. The plaintiffs, however, appealed only one of those superior court rulings to this court, which is the subject of this appeal.

A. The Planning Board's Review of the Intervenor's Application

The following facts are recited in the trial court's order or are derived from the contents of documents in the record. In January 2019, the intervenor applied to the planning board for permission to consolidate two adjacent lots in the Town's commercial zoning district and build a construction equipment rental and maintenance facility, a wash building, and an equipment display and storage area. The plaintiffs reside on property abutting the intervenor's property. On February 6, 2019, a Town code enforcement officer issued a written decision (hereinafter, "zoning determination") that the proposed use involved equipment rental and constituted a permissible retail use in the commercial zoning district. Although abutters, including the plaintiffs, expressed their disagreement with this zoning determination to the planning board, the plaintiffs never directly appealed the code enforcement officer's determination.

The planning board's review of the application continued through June 2019. The planning board retained an engineering firm, Keach-Nordstrom Associates (KNA), to review the proposal and offer recommendations. Between March and June, KNA provided the planning board with four separate peer reviews of the intervenor's proposed site plan. The intervenor responded to the peer reviews and adjusted its site plan accordingly. Additionally, the planning board held four public hearings and conducted a site walk. At each hearing, members of the public had the opportunity to express their concerns with the proposal, and the intervenor responded to concerns from the planning board, KNA, and abutters. The Town Conservation Commission also held three meetings on the site plan, reviewed the application, and reported its concerns to the planning board.

B. Plaintiffs' First Appeal to Superior Court from the Planning Board's Conditional Decision

At the public hearing in June 2019, the planning board conditionally approved the intervenor's site plan application. None of the conditions upon which this approval was premised implicated the code enforcement officer's zoning determination that the proposed use is permitted under the zoning ordinance. Thus, by conditionally approving the project, the planning board adopted the code enforcement officer's zoning determination.

The plaintiffs appealed the planning board's decision directly to the superior court, arguing, in part, that the decision violated the Town's zoning ordinance. In May 2020, the Superior Court (Schulman, J.) concluded that the planning board's decision on the site plan was conditional, and, therefore, the court lacked jurisdiction over the appeal. The court then remanded the matter to the planning board without addressing the merits of the appeal. The court later clarified its order and explained that it lacked jurisdiction to adjudicate the zoning issue until the Town's Zoning Board of Adjustment (ZBA) rendered a decision. There is no indication in the record that the plaintiffs appealed this decision.

C. Plaintiffs' Appeal to Superior Court from the ZBA

In June 2020, the planning board issued a final decision approving the intervenor's site plan application. The following month, the plaintiffs brought two separate appeals challenging this decision: one to the ZBA and one to the superior court. First, the plaintiffs appealed to the ZBA challenging the merits of the planning board's determination that the project was a permitted use in the zoning district. The ZBA dismissed the appeal for lack of jurisdiction because it was untimely. After the plaintiffs' motion for rehearing was denied, they appealed the ZBA's decision to the superior court, and the Town moved to dismiss. In March 2021, the Superior Court (Wageling, J.) granted the motion and dismissed the appeal. The court concluded that the plaintiffs' appeal to the ZBA was untimely, and, therefore, both the ZBA and the court lacked subject matter jurisdiction. The plaintiffs moved for reconsideration, which the court denied on April 12, 2021. The town and the intervenor contend, and the plaintiffs do not dispute, that the plaintiffs did not appeal the court's decision, which became a final judgment in May 2021. See Super. Ct. R. 46(d).

D. Plaintiffs' Appeal to Superior Court from the Planning Board's Final Decision

As noted above, concurrent with the ZBA appeal, the plaintiffs appealed the planning board's final approval of the site plan to the superior court. The plaintiffs argued, inter alia, that the planning board's decision violated the zoning ordinance, failed to make a regional impact determination pursuant to RSA 36:56, and was otherwise unreasonable with respect to protections for abutting residential properties. In July 2021, the Superior Court (Wageling, J.) affirmed the planning board's decision. As to the plaintiffs' renewed claim that the site plan approval violated the zoning ordinance, the court found that it lacked subject matter jurisdiction to review the issue. The court relied upon its March 2021 ruling that the plaintiffs' appeal to the ZBA was untimely and thus the plaintiffs did not "exhaust their administrative remedies with the ZBA" to vest the superior court with subject matter jurisdiction. Further, the court concluded that the planning board "implicitly found that there was no potential for regional impact" and, in doing so, complied with RSA 36:56. Finally, the court found that the planning board reasonably "considered [the] abutters' concerns and interests, and that those concerns were incorporated into the final site plan." The plaintiffs moved for reconsideration, which the court denied. This appeal followed.

II. Analysis

A. Jurisdictional Challenges

We begin by addressing the plaintiffs' argument that the superior court erred in not addressing the zoning issue based on a lack of jurisdiction and their assertion that the issue was properly before the court pursuant to RSA 677:15, I-a (2016). Resolving this issue requires the consideration of two related statutory provisions: RSA 677:15 governing appeals from a planning board to the superior court, and RSA 676:5 (2016) governing appeals to a zoning board of adjustment. RSA 677:15, I, provides, in pertinent part:

Any persons aggrieved by any decision of the planning board concerning a plat or subdivision may present to the superior court a petition, duly verified, setting forth that such decision is illegal or unreasonable in whole or in part and specifying the grounds upon which the same is claimed to be illegal or unreasonable. Such petition shall be presented to the court within 30 days after the date upon which the board voted to approve or disapprove the application . . . . This paragraph shall not apply to planning board decisions appealable to the board of adjustment pursuant to RSA 676:5, III.

In turn, RSA 676:5, III sets forth procedures for appeals to a board of adjustment. It provides, in pertinent part:

If, in the exercise of subdivision or site plan review, the planning board makes any decision or determination which is based upon the terms of the zoning ordinance, or upon any construction, interpretation, or application of the zoning ordinance, which would be appealable to the board of adjustment if it had been made by the administrative officer, then such decision may be appealed to the board of adjustment under this section . . . .

"Read together, RSA 677:15, I, and RSA 676:5, III establish two separate avenues of appeal from a decision of the planning board, depending upon the nature of the claim." Atwater v. Town of Plainfield, 160 N.H. 503, 508 (2010). A party may appeal planning...