Morris v. Town of Barnstead

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Patricia Morris & a. v. Town of Barnstead

No. 2022-0583

Supreme Court of New Hampshire

February 14, 2024

ORDER

The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The plaintiffs Patricia Morris and Jerad Davis, appeal orders of the Superior Court (Houran and Leonard, JJ.) in their appeal from decisions of the planning board and zoning board (ZBA) of the defendant, the Town of Barnstead (Town). Industrial Tower and Wireless, LLC (ITW), an intervenor in the superior court action, cross-appeals other orders by the Superior Court (O'Neill, J.) in this case. The Town joins in ITW's brief. We affirm.

The following facts and relevant procedural history are taken from the trial court orders in this case. In early 2020, ITW filed an application for site plan review with the planning board, seeking to build a 175-foot open lattice communications tower and associated equipment storage sheds on a 39.6 acre wooded parcel owned by a third party. The proposed tower would be located 329 feet from the plaintiffs' property line.

The planning board held two public hearings on ITW's application in May 2020. In a letter dated May 7, 2020 Morris argued to the planning board that ITW is a business subject to Section 8-1 of the Barnstead Zoning Ordinance (BZO). The planning board approved the application without mentioning Section 8-1 during any of its meetings.

The plaintiffs^[1] appealed the planning board's decision to the ZBA, arguing, among other things, that the planning board misapplied Section 8-1. ITW filed a motion to dismiss which the ZBA granted, concluding that it "found no connection between the arguments raised by the plaintiffs and the applicable sections of the [BZO]." In other words and as the trial court interpreted the ZBA's ruling, the ZBA concluded that it lacked jurisdiction over the plaintiffs' administrative appeal. The plaintiffs filed a motion for rehearing, seeking, among other things, review of the planning board's alleged misapplication of Section 8-1. The ZBA denied the motion, reiterating its prior ruling, but also adding the following additional reason:

While it was not explicit in the Planning Board decision, it seems likely that the Planning Board determined that under the [BZO], the proposed Communications tower is a commercial tower owned and operated by a business outside of Barnstead and not a business located in Barnstead. This is a reasonable position and consistent with the treatment of land-line telephone property as property owned by a business located elsewhere.

The plaintiffs filed an appeal in superior court challenging the planning board's approval of ITW's site plan application and the ZBA's denial of their administrative appeal. On June 4, 2021, the Trial Court (O'Neill, J.) ruled that the ZBA erred in finding that it lacked jurisdiction and remanded to the ZBA to consider the plaintiffs' appeal.

ITW filed a motion for reconsideration and, in the alternative, clarification to, among other things, "ensure that the ZBA determines only the question which the Court is remanding." The court denied reconsideration but directed the ZBA to answer the following question on remand: "Did the Barnstead Planning Board err in interpreting Section 8-1 of the Barnstead Zoning Ordinance to be inapplicable to ITW's proposed Commercial Tower?" The court further clarified that in its June 4 order, it did not "consider . . . [or rule upon] any matters/arguments relating to the Planning Board approval of the site plan," and stayed the appeal pending the ZBA's determination of the matter on remand.

Following a public hearing, the ZBA answered "no" to the remanded question. After the ZBA denied their request for a rehearing, the plaintiffs amended their superior court appeal to challenge that determination by the ZBA.

In an order dated June 3, 2022, the Trial Court (Houran, J.) denied the plaintiffs' ZBA appeal, ruling that "the ZBA had a sufficient basis to conclude the Planning Board did not err in interpreting Section 8-1 of the [BZO] to be inapplicable to ITW's proposed Commercial Tower."

The plaintiffs filed a motion for reconsideration and clarification of the June 3 order. The Trial Court (Houran, J.) issued an order denying the request for reconsideration and clarifying that the June 3 order did not resolve all issues in the case, but only the issue remanded to the ZBA in the June 4, 2021 order. Accordingly, in an order issued on August 16, 2022, the Trial Court (Leonard, J.) ruled on the plaintiffs' remaining challenges to the planning board's decision. The court granted the appeal in part - ruling that the planning board acted unreasonably or unlawfully in finding that ITW had fully satisfied the requirement contained in Section 3.2(J) of the Town's non-residential site plan review regulation - but denied it in all other respects, and remanded to the planning board to receive evidence of ITW's compliance with Section 3.2(J) and, thereafter, to confirm the same. The plaintiffs filed a motion for reconsideration and clarification, which the trial court denied.

In September 2022, ITW filed a motion for entry of final judgment in its favor, informing the court that the planning board had confirmed ITW's compliance with Section 3.2(J). The Trial Court (Leonard, J.) granted the motion, thereby affirming the planning board's site plan approval. The plaintiffs then filed the instant appeal, challenging the trial court's affirmance of the ZBA's decision on the remanded question and of the planning board's approval of ITW's site plan. ITW cross-appealed, challenging the trial court's ruling that the ZBA had jurisdiction over the administrative appeal and, in turn, the trial court's own assertion of subject matter jurisdiction over the plaintiffs' appeal of the planning board's site plan approval decision.

This appeal and cross-appeal require us to review superior court orders in appeals from decisions of the planning board and the ZBA. "The superior court was obligated to treat the factual findings of both boards as prima facie lawful and reasonable and could not set aside their decisions absent unreasonableness or an identified error of law." Hannigan v. City of Concord, 144 N.H. 68, 70 (1999). "We will uphold the superior court's decision unless it is unsupported by the evidence or is legally erroneous." Id.

We first consider ITW's cross-appeal, as it challenges the trial court's subject matter jurisdiction. See DHB v. Town of Pembroke, 152 N.H. 314, 317 (2005). Specifically, ITW contends that the superior court lacked jurisdiction because the plaintiffs' appeal to the superior court, filed 130 days after the planning board's decision approving ITW's site plan, was untimely. The plaintiffs counter that their appeal was timely filed under the "dual track for appeals" set forth in RSA 676:5, III and RSA 677:15, I-a because the trial court correctly found that the planning board "made an implied decision under the terms of the BZO." See RSA 676:5, III (2016) (governing appeals to the ZBA); RSA 677:15, I-a (2016) (detailing procedures for appealing planning board decisions where some issues are appealable to the ZBA); see also Anthony v. Town of Plaistow, 175 N.H. 762, 767 (2023) (explaining statutory scheme). The issue before us, then, is whether the trial court erred in concluding that the planning board "is assumed to have considered said ordinance after [Morris] raised it during the public hearing, and made a determination on same."

The trial court noted:

In a letter sent to the Planning Board dated May 7, 2020, Morris argued that ITW is a business [that] is subject to Section 8 of the [BZO], among other things. She also submitted an additional letter dated May 21, 2020, and spoke at the May 5 and 21 hearings. One of the letters was submitted . . . at the May 21 hearing, but it is unclear from the record which letter. However, both letters are contained within the Certified Record and the Planning Board does not dispute receiving same.

(Citations omitted.) We conclude that the trial court, based upon the evidence before it, reasonably could have determined that the issue was before the planning board for its consideration. See Anthony, 175 N.H. at 770 (reciting standard of review and facts noted by trial court before upholding trial court's conclusion that "the planning board considered and implicitly found that the project did not have a potential for regional impact").

The trial court further found that the planning board must have reached one of two alternative conclusions, although the court could not determine which of them the planning board actually reached: either ITW's proposed tower was a business that satisfied Section 8-1 or it was not a business and, therefore, Section 8-1 did not apply. Accordingly, the trial court ruled, the planning board made a "decision or determination . . . based upon the terms of the zoning ordinance, or upon any construction, interpretation, or application of the zoning ordinance." RSA 676:5, III.

ITW challenges that ruling. It acknowledges that "a local board can be found to have made an implied determination where the determination was a required step in deciding an application," but contends that the Section 8-1 issue "did not need to be decided in order for the Planning Board to approve ITW's site plan." We disagree. Section 8-1 provides, in pertinent part, that "[a]ny business may be located in Barnstead upon application and approval of the Planning Board, Selectman and Health Officer; and provided that [certain requirements are met]." (Emphasis added.) The planning board's approval of...