Wayne Perreault v. Town of Goffstown & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0270, Wayne Perreault v. Town of
Goffstown & a., the court on April 14, 2016, issued the
following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, Wayne Perreault, appeals several rulings of the Superior Court
(Brown, J.) affirming the decision of the zoning board of adjustment (ZBA) for
defendant Town of Goffstown (Town), which upheld the determinations of the
town administrative officer regarding a driveway located on the property of
defendants Tristram and Marcella Gordon. On appeal, Perreault argues that
the trial court erred when it determined that: (1) our decision in Fisher v. City
of Dover, 120 N.H. 187 (1980), prevented him from relitigating the modification
of the driveway; (2) collateral estoppel applied, preventing him from arguing the
driveway could not be modified; and (3) the interpretation of the zoning
ordinance regarding the width of the driveway by the subsequent
administrative officer was lawful and reasonable. We affirm.

The record supports the following facts. At issue in this appeal is a
driveway located on the Gordons’ property in Goffstown. The Gordons’
property is comprised of two parcels of land, each of which historically had its
own driveway. The northern parcel’s driveway was approximately six-to-ten
feet wide, and originally consisted of two concrete strips (the northern
driveway). The Gordons’ residence is on the southern parcel where there is
another driveway (the southern driveway). Perreault and the Town agree that
the parcels were merged into a single lot, but there is some disagreement in the
record as to when this merger occurred.

In August 2010, the Town’s zoning code enforcement officer, Derek
Horne, sent the Gordons a letter stating that he had learned that they had
“begun construction of a second driveway” on their property and that they
would need to seek a conditional use permit to do so. After speaking with the
Gordons and conducting his own research, Horne issued a subsequent letter
stating that “[i]t is evident the concrete blocks were used as a second driveway
by the previous owner to park vehicles here,” and that it was his determination
that “there have been two driveways at this location and a driveway
modification permit from the Department of Public Works is appropriate.”

In September, the Department of Public Works and Highways issued the
Gordons a driveway modification permit. The permit allowed the Gordons to
pave the existing northern driveway to a maximum width of “22 feet (incl. 5 foot
flares[]).” Horne formalized his administrative determinations in a letter dated
October 19. Perreault, who resides across the street from the Gordons,
appealed Horne’s determinations to the ZBA.

The minutes reflect that, at the ZBA hearing, Perreault’s attorney stated
that he did not agree with the determination that the driveway was “historical”
but that he did not “have the information to dispute it.” Rather, he argued that
the zoning ordinance did not allow the Gordons to “impermissibly expand a
non[-]conforming use.” He argued that a “three fold” expansion of the northern
driveway to 22 feet was impermissible and in contravention of the ordinance.
The ZBA ultimately voted to uphold Horne’s determinations. After
unsuccessfully seeking a rehearing, Perreault did not appeal the ZBA’s decision
to the superior court.

In August 2011, Perreault emailed a public works employee stating that
the Gordons’ driveway was incomplete and the permit had expired, and that
the portion that was completed was wider than 22 feet. The employee
responded that she had extended the permit due to road construction on the
public street that impacted the completion of the Gordon’s driveway. She also
stated that the 22-foot-width limitation applied only at the town right-of-way
line.

On September 21, 2011, Brian Rose, the planning and zoning
administrator responsible for zoning code enforcement, sent a letter to the
Gordons. In the letter, Rose stated that, after further complaints from
Perreault, he had made several administrative decisions “in an attempt to
clarify [the Gordons’] rights.” In relevant part, Rose determined that “the
driveway entrance at the [town] right-of-way line is the only part of the
driveway that is limited to twenty-two (22) feet” and that the remainder of the
driveway “is limited by Zoning Ordinance to 28 feet.” Rose also determined
that, because the Gordons’ “lot is only permitted one driveway based on [the]
Zoning Ordinance” and “[s]ince the property had two driveways existing at the
time this regulation was enacted,” by expanding the northern driveway, the
Gordons “have chosen that driveway as the conforming driveway on [their]
property.” Therefore, Rose stated, “the southern driveway becomes the legal
non-conforming driveway” as to which no expansion will be allowed without a
variance.

Perreault appealed Rose’s determinations to the ZBA, which held a
hearing on December 6, 2011. Perreault did not appear at the hearing but
submitted a statement for the ZBA’s consideration. The hearing minutes
indicate that Rose stated that the reference to the 22-foot width of driveways is
found in the development regulations, but the “Zoning Ordinance says no
driveway shall be wider than 28 feet. That is the maximum width of the
driveway.” Rose also stated that, because the properties were merged into one

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lot with two existing driveways, there was no way of telling which driveway was
“grandfathered.” Therefore, Rose determined that, because the Gordons chose
to expand the northern driveway, the southern driveway was “the
grandfathered driveway” and could not be expanded further without a variance.
The ZBA continued the appeal to the next month’s meeting, during which it
voted to uphold Rose’s determinations. Following the denial of Perreault’s
request for rehearing, he appealed to the superior court.

In his appeal, Perreault argued, among other things, that the ZBA acted
unlawfully by allowing “an illegal expansion . . . of a non-conforming driveway”
and by improperly upholding Rose’s determination “that the Northern Driveway
was the conforming driveway.” The Town moved for “an order directing that
the issue of the right . . . of the Gordons to modify and alter the north
driveway . . . has been foreclosed by the unappealed decision of the ZBA in the
earlier ZBA case.”

In its order, the trial court remanded the matter for the ZBA to
determine, in the first instance, whether the rule articulated in Fisher v. City of
Dover barred Perreault from arguing that the northern driveway could not be
expanded. Additionally, the trial court determined that the ZBA did not err
when it upheld Rose’s determination that the maximum width of the driveway
pursuant to the ordinance was 28 feet, and the 22-foot width applied only at
the town right-of-way line. After remand, the ZBA determined that Fisher
barred Perreault’s current appeal. After the denial of a request for rehearing,
the parties had a final hearing in the superior court.

The trial court’s final order affirmed the ZBA’s decision. The trial court
ruled that Fisher applied to this case and that Perreault was foreclosed from
arguing that the Gordons could not modify the northern driveway. The trial
court also found that collateral estoppel prevented Perreault from raising the
issue of modification of the northern driveway. This appeal followed.

“Judicial review in zoning cases is limited.” Merriam Farm, Inc. v. Town
of Surry, 168 N.H. 197, 199 (2015). “Factual findings of the ZBA are deemed
prima facie lawful and reasonable, and the ZBA’s decision will not be set aside
by the superior court absent errors of law unless it is persuaded by the balance
of probabilities, on the evidence before it, that the ZBA decision is unlawful or
unreasonable.” Id.; see also RSA 677:6 (2008). “We will uphold the superior
court’s decision unless the evidence does not support it or it is legally
erroneous.” Merriam Farm, Inc., 168 N.H. at 199. “The interpretation and
application of a statute or ordinance is a question of law, and we review the
trial court’s ruling on such issues de novo.” Id.

We first address Perreault’s argument that the trial court erred when it
determined that collateral estoppel prevented him from challenging the
Gordons’ right to expand the northern driveway. Initially, Perreault argues

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that, although the Town raised the issue of res judicata before the trial court, it
never raised collateral estoppel as an affirmative defense in its answer or in its
motion and has, therefore, waived it. However, even if the trial court
erroneously applied collateral estoppel sua sponte, in order to properly preserve
this argument for our review, Perreault must have raised this error in a motion
for reconsideration so that the trial court would have had the opportunity to
correct itself. See LaMontagne Builders v. Bowman Brook Purchase Group,
150 N.H. 270, 274 (2003) (stating that a party must raise legal errors arising as
a result of the trial court’s order in a motion for reconsideration in order to
preserve them for our review). The record does not contain any motion for
reconsideration of the trial court’s decision; therefore, Perreault’s argument is
not preserved for appellate review. See id.

Perreault also argues that the trial court erred because collateral
estoppel does not apply in this case. Specifically, he contends that the issues
raised in the current appeal differ from those raised in the appeal from Horne’s
determinations.

“In its most basic formulation, the doctrine of collateral estoppel bars a
party to a prior action, or a person in privity with such a party, from relitigating
any issue or fact actually litigated and determined in the prior action.” Petition
of Kalar, 162 N.H. 314, 320 (2011). “The applicability of collateral estoppel is a
question of law that we review de novo.” Id. at 321. Although we typically
apply a five-factor test in order to determine whether collateral estoppel
applies, see id. at 320-21, the only developed argument that Perreault makes is
that the trial court erred when it found that the issues in the two appeals were
the same. See id. Therefore, we need address only that argument.

At the outset, we note that the trial court did not rule that collateral
estoppel prevented Perreault from raising all issues arising out of Rose’s
determinations. In fact, it stated that Perreault “was not prevented from
appealing [Rose’s determinations regarding] restrictions, permit extension, or
clarified dimensions” of the northern driveway. Rather, it determined that
Rose’s determinations “did not consider or alter what . . . Horne already
granted the Gordons: the original right to modify the northern driveway.”
Thus, the trial court found that Perreault was barred from “disputing the
Gordons’ right to modify the northern driveway” under the doctrine of collateral
estoppel. We agree with the trial court.

In his second letter to the Gordons, Horne stated that he determined
“there have been two driveways at this location” and that a driveway
modification permit was proper, presumably in lieu of a conditional use permit
as he had stated in a prior letter. According to the minutes, during the hearing
before the ZBA, Horne stated that the property “historically” had two
driveways, the northern “six foot driveway couldn’t accommodate a vehicle of
today,” and that “[i]t’s a natural expansion as vehicles become larger and curb

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cuts become larger.” There was also discussion about the basis for the 22-foot-
width limit. Horne stated that it was the maximum width specified in the
development regulations, and that, pursuant to the regulations, “it could be 22
feet wide, including 5 foot flares on both sides of the road.”

Perreault’s prior counsel objected to Horne’s decision, arguing that the
northern driveway “is a grandfathered non[-]conforming aspect of the property”
and that Horne’s “determination will allow [the Gordons] to impermissibly
expand a non[-]conforming use.” The ZBA rejected Perreault’s argument that
“[t]he expansion of a non[-]conforming use to occupy a greater area is not
permissible,” and Perreault did not appeal the ZBA’s decision to the superior
court. Subsequently, in his letter to the Gordons, Rose noted that the ZBA
“voted to affirm Mr. Horne’s determination (regarding whether or not [the
northern] driveway is an allowed driveway and could be expanded up to the
maximum width).” From the record, it is clear that the prior appeal to the ZBA
concerned Horne’s determination that the Gordons could request a permit to
expand the northern driveway to the maximum width permissible, which Horne
determined to be 22 feet.

In his current appeal, Perreault argues that the trial court “did not rule
upon the preliminary issue of whether the Gordons’ [northern] driveway could
be expanded in the first instance” and that “the trial court erred when it failed
to address and resolve whether the Gordons unlawfully expanded their
nonconforming driveway.” This is the precise issue that Perreault’s prior
attorney argued in the ZBA hearing regarding Horne’s determination, and
Perreault decided not to appeal that decision to the superior court. In fact, in a
hearing in the trial court, on appeal from Rose’s determinations, Perreault
admitted that Horne had previously determined that the Gordons “were
permitted to expand [the northern] driveway based on the proposition that it
was an existing driveway at the time the zoning was implemented.” Therefore,
we conclude that the northern driveway expansion issue is the same issue that
was not previously appealed and therefore Perreault is collaterally estopped
from asserting it now. Accordingly, we need not address whether Fisher also
bars Perreault from raising that issue. See Fisher, 120 N.H. at 190.

To the extent that Perreault argues that the designation of the northern
driveway as conforming or non-conforming is a separate issue from whether
the Gordons are allowed to expand the northern driveway, we disagree. In the
trial court, Perreault argued that Rose’s determination “leads specifically to an
expansion of [a] non[-]conforming use,” which is not permitted under the
zoning ordinance, and that his “position is the Gordon[s] do not have the legal
right to modify and alter the north driveway as a conforming use.” Thus,
labeling the driveway as non-conforming is part and parcel of his position that
the northern driveway cannot be expanded. However, as demonstrated above,
the prior decision of the ZBA regarding Horne’s determinations affirmed the
Gordons’ ability to expand the driveway. Perreault did not appeal the ZBA’s

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decision, and that decision became final. Given the posture of this case, the
label affixed to the northern driveway is immaterial when the end result is the
same: the Gordons are permitted to expand the northern driveway. Thus, we
are not persuaded that the trial court erred by not separately addressing this
issue.

Next, Perreault argues that the trial court erred in upholding the ZBA’s
interpretation of the zoning ordinance and development regulations to allow the
northern driveway to be a maximum width of 28 feet. “The interpretation of a
zoning ordinance is a question of law, which we review de novo.” Anderson v.
Motorsports Holdings, 155 N.H. 491, 494 (2007). “We are the final arbiter of
the interpretation of a zoning ordinance’s terms.” Id. “Because the traditional
rules of statutory construction generally govern our review, the words and
phrases of an ordinance should be construed according to the common and
approved usage of the language.” Id. at 494-95.

The trial court found “applicable and instructive” section 7.3.4 of the
Town’s zoning ordinance, which is located in the “Parking Area Design
Standards” section of the ordinance. It states:

Driveway widths - Driveways connecting parking lots to a street or
another parking lot shall be at least twenty-four (24) feet in width
for two-way traffic flow and at least twelve (12) feet in width for
one-way traffic flow. No driveway shall exceed twenty-eight (28)
feet in width except where the Planning Board requires a driveway
of three (3) lanes or more as part of the approval of a Site Plan
pursuant to Section 15.4.2, Subdivision Approval and Site Plan
Review.

(Emphasis added.) The trial court also cited section 8.C.7 of the Town’s
development regulations, which states that “[t]he maximum width of any
residential driveway, at the Town right-of-way line, shall not exceed 22 feet,
including flare radii of 5 feet.” (Emphasis added.) The court stated “that
Ordinance 7.3.4 addresses driveways generally and is thus the most instructive
regulation as to the permissible width of the Gordons’ driveway after the right
of way line.” The court agreed with the Town that, taken together, section
“8.C.7 applies to the driveway width at the town right-of-way line [and]
Ordinance 7.3.4 applies to driveway width thereafter.”

Perreault argues that the applicability of Ordinance 7.3.4 is “tenuous at
best and warrants reversal.” Specifically, he argues that, although the ZBA
determined that parking within the driveway was permitted, the Gordons did
not have a parking area with designated parking spaces or similar features.
Perreault argues that the trial court should have instead applied section 5.21.4
of the ordinance, which specifies that driveways “remain residential in scale,
e.g. 18’ wide in front yard.” However, as Perreault admits, section 5.21.4

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applies only to the RSBO-1 District, which includes mixed uses, whereas the
Gordons’ property is located in the separate Residential-1 District. Moreover,
we agree with the trial court that section “5.21.4 merely gives an example of a
residential driveway’s width” and “does not specify a precise measurement.”
Thus, we are not persuaded that the trial court erred when it did not apply
section 5.21.4 to the Gordons’ property.

Perreault also argues that the plain language in section 8.C.7 of the
development regulations, stating that the maximum width of the driveway at
the Town right-of-way line “shall not exceed 22 feet, including flare radii of 5
feet,” means that driveways are to taper by 5 feet on both sides after the right-
of-way line, resulting in a driveway width of 12 feet. However, nothing in the
language of the regulation mandates such a result. Rather, the plain language
states that the driveway cannot be wider than 22 feet at the right-of-way line,
and that the 22-foot width is inclusive of any flaring, so that a homeowner may
not attempt to make it wider than 22 feet if the owner chooses to include flares.
Therefore, we find no basis to reverse the trial court’s ruling on this issue.

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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