Kulick's, Inc. v. Town of Winchester

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0226, Kulick's, Inc. v. Town of Winchester,
the court on March 16, 2015, issued the following order:

Having considered the briefs, the parties’ supplemental memoranda
addressing jurisdiction, and the record submitted on appeal, we conclude that
oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). Because we
conclude that the trial court lacked jurisdiction over the case, we vacate its order
and remand.

The petitioner, Kulick’s Inc. (abutter), appeals an order of the Superior
Court (Kissinger, J.) affirming a decision by the planning board (board) of the
respondent, the Town of Winchester (town), conditionally approving a site plan
submitted by the intervenor, S.S. Baker’s Realty Co., LLC (applicant). We
conclude that the board’s approval was not final because it was subject to the
unfulfilled condition precedent that the applicant “[i]nstall [and] abide by the
stormwater runoff erosion [and] sedimentation regulations” (regulations) and,
therefore, that the superior court lacked jurisdiction to review it. See Sklar
Realty v. Town of Merrimack, 125 N.H. 321, 327 (1984).

The town and applicant concede that the condition that the applicant
comply with the regulations is a condition precedent. However, they argue that it
is “ministerial” because it does not require “further discretionary action” by the
planning board. The abutter likewise acknowledges that “a decision that would
only require the further ministerial function of the planning board can be
construed as a final decision.” The town and the applicant contend that this
condition is governed by RSA 676:4, I(i) (Supp. 2014), which provides that a site
plan approval conditioned upon “approvals granted by other boards or agencies”
“shall become final without further public hearing, upon . . . evidence . . . of
satisfactory compliance with the conditions imposed.” They argue that, as a
result, in this case “although the condition precedent is not yet fulfilled, it is
capable of being fulfilled, and under these unique circumstances the planning
board’s decision should be treated as final for the purposes of this appeal.”

However, the town and applicant have not demonstrated that the planning
board’s function regarding compliance with the regulations is purely ministerial.
The abutter argues that “review of a stormwater plan and adoption or rejection of
the recommendations of the conservation commission can only be construed as
an exercise of discretion.” The town’s regulations provide that the conservation
commission “shall review” an applicant’s plan for complying with the regulations
(stormwater plan) and “shall send a recommendation to the Planning Board
including information such as findings, compliance, concerns, etc.” The
regulations then provide that, upon the conservation commission’s completion of
its review, “the Planning Board shall approve the [stormwater plan] if it complies
with these regulations or shall deny it if it is found that it does not comply.”

The regulations do not specify whether the conservation commission or the
board is responsible for determining whether a stormwater plan complies with
the regulations. The town does not argue that the responsibility for final
approval has been established by administrative gloss. Moreover, the board is
authorized to “seek technical review of the [stormwater plan] . . . by a qualified
professional consultant if it is determined that additional assistance is
necessary,” which indicates that the board is responsible for final approval of a
stormwater plan.

Furthermore, regardless of whether the board’s actions regarding a
stormwater plan are ministerial, the town and the applicant state that, in this
case, the conservation commission has not yet completed its review of the
applicant’s stormwater plan and that the board has not yet approved it. RSA
676:4, I(i) provides that a site plan approval subject to a condition precedent may
become final, without further hearing, only upon “satisfactory compliance with
the conditions imposed.” If the conservation commission or the board were to
conclude that the applicant’s stormwater plan did not comply with the
regulations, then the appeal of the applicant’s site plan would be moot.
Therefore, the requirement that the applicant comply with the regulations is an
unfulfilled condition precedent, and, as a result, the superior court lacked
jurisdiction to consider the appeal of the board’s conditional decision. See Sklar,
125 N.H. at 327.

To the extent that the abutter invites us “to consider the appeal to be an
equitable action such as a declaratory judgment or a writ of certiorari” to address
“whether the planning board had subject matter jurisdiction to review the ‘new
plan’ in the first instance,” we decline to do so. Cf. In re Guardianship of Luong,
157 N.H. 429, 436 (2008) (holding equity jurisdiction cannot be used to
circumvent statute placing responsibility of drafting estate plan upon guardian).

To the extent that the town and the applicant invite us to “stay[ ] the
pending appeal so the Conservation Commission may complete its review” of the
stormwater plan, we note that final approval by the board while the case was
pending before the superior court might have given that court jurisdiction. See
Sklar, 125 N.H. at 328. However, because the superior court never acquired
jurisdiction, its order is void, and we have no authority to take any action beyond
declaring it so. See Daine v. Daine, 157 N.H. 426, 428 (2008) (stating if trial

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court lacked jurisdiction, its decision is void, and appellate tribunal acquires no
jurisdiction of merits upon appeal). Nor can we address the town and applicant’s
argument that the board had the authority to make its decision conditional. See
id.

Therefore, we vacate the trial court’s order and remand with instructions to
dismiss the appeal and remand the matter to the board.

Vacated and remanded.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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