Martha Fuller Clark & a. v. City of Portsmouth

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0480, Martha Fuller Clark & a. v. City of
Portsmouth, the court on May 25, 2017, issued the following
order:

The plaintiffs’ request to include the transcript of the September 15,
2015 hearing before the City of Portsmouth (city) Zoning Board of Adjustment
(ZBA) in the record on appeal is granted. Having considered the briefs and
record submitted on appeal, we conclude that oral argument is unnecessary in
this case. See Sup. Ct. R. 18(1). We affirm.

The plaintiffs, Betty Morton Belcher, Matthew Morton, Ann Morton, Jane
Morton Man, Gregory E. Sancoff, Nancy Steele-Elwell, Belcher Market Realty,
LLC, Betty Morton Belcher Revocable Trust, Jane Man Associates, LLC, and
Seth Morton Associates, LLC1, appeal the order of the Superior Court
(Delker, J.) affirming the ZBA’s decision to uphold decisions of the city’s
Historic District Commission (commission) granting a conditional use permit
and a certificate of approval to the intervenors, Deer Street Development
Company, Inc., and North End Master Development, LP, to construct a multi-
use complex.

Our review in zoning cases is limited. Merriam Farm, Inc. v. Town of
Surry, 168 N.H. 197, 199 (2015). The ZBA’s factual findings are deemed prima
facie lawful and reasonable and will not be set aside by the superior court
absent errors of law, unless the court is persuaded by a balance of probabilities
on the evidence before it that the decision is unreasonable. Id.; see RSA 677:6
(2016). The party seeking to set aside the ZBA’s decision in the superior court
bears the burden of proof. Malachy Glen Assocs. v. Town of Chichester, 155
N.H. 102, 105 (2007). We, in turn, will uphold the superior court’s order
unless it is not supported by the evidence or is legally erroneous. Id.

The plaintiffs first argue that the superior court erred because the ZBA
refused to consider traffic, parking, and safety issues in reviewing the
commission’s decisions to grant the intervenors a conditional use permit and a
certificate of approval. The intervenors assert, and the plaintiffs do not
dispute, that the city’s planning board reviewed traffic, parking, and safety
issues as part of its site plan review, and that, in a separate proceeding, the
superior court upheld the site plan. The trial court ruled that the ZBA did not
err in refusing to consider traffic, parking, and safety issues because the

1 Plaintiff Martha Fuller Clark is not participating in this appeal.
commission’s review criteria focus on the aesthetic and architectural
characteristics of the proposed project and do not require the commission to
consider traffic, parking, or safety issues.

The plaintiffs also argue that the commission, planning board, and ZBA
failed to consider whether the project complies with the city’s master plan.
RSA 674:21, II (2016) provides that when a zoning ordinance such as the city’s
vests administration of innovative land use controls, such as a conditional use
permit, in a board other than the planning board, the planning board shall
review the proposal and set forth its comments in writing. The superior court,
noting that the statute does not require the planning board to explicitly
reference the master plan in its comments, ruled that the planning board’s
“two, minor comments” can reasonably be understood to mean that it agreed
with the commission that the project satisfied the applicable criteria. See
Thomas v. Town of Hooksett, 153 N.H. 717, 724 (2006) (ZBA’s decision to grant
variance “amounted to an implicit finding by the board” that applicable factors
were met).

Finally, the plaintiffs argue that the superior court erred in ruling that
they lacked standing to enforce certain representations that a principal of the
intervenors allegedly made to the city council in order to obtain an exception to
the amendment to the zoning ordinance eliminating the provision allowing
buildings to exceed 45 feet in height by conditional use permit. The plaintiffs
alleged that the principal told the council that most of the proposed building
would be no higher than 45 feet, but that, in fact, most of the building, as
approved, is 60 feet in height. The intervenors counter that, among other
things, this issue is beyond the scope of this appeal because the ZBA lacks
jurisdiction to overturn a council decision. See Dembiec v. Town of
Holderness, 167 N.H. 130, 135 (2014) (zoning boards lack general equitable
jurisdiction). The trial court ruled that the plaintiffs lack standing to raise this
claim. See Duncan v. State, 166 N.H. 630, 640-48 (2014) (discussing standing
requirements).

As the appealing parties, the plaintiffs have the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the superior court’s well-reasoned order, the plaintiffs’ challenges to
it, the relevant law, and the record submitted on appeal, we conclude that the
plaintiffs have not demonstrated reversible error. See id.

Affirmed.

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

Eileen Fox,
Clerk

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