Fred Ward v. Town of Stoddard

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0519, Fred Ward v. Town of Stoddard, the
court on April 20, 2017, issued the following order:

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 petitioner, Fred Ward, appeals an order of the Superior Court
(Kissinger, J.) dismissing his appeals of decisions of the planning board and the
zoning board of adjustment (ZBA) for the defendant, the Town of Stoddard (town),
to grant applications of the intervenor, Global Montello Group Corp., for site plan
approval and a special exception. The intervenor, whose property lies more than
4,000 feet from the petitioner’s property and does not abut it, seeks to expand its
fuel station and convenience store. The trial court concluded that the petitioner
lacked standing. We note that, although several of the petitioner’s arguments
concern a proposed sign, the town and the intervenor represent, and the
petitioner does not contest, that the intervenor has not sought a variance
required for the sign.

When the issue of standing is raised, the party challenging the
administrative action cannot rest on unsubstantiated allegations, but must
establish his right to claim relief by demonstrating some direct, definite interest
in the outcome of the action or proceeding. Hannaford Bros. Co. v. Town of
Bedford, 164 N.H. 764, 766-67 (2013). Standing will not be extended to all
persons in the community who might feel that they are hurt by a local
administrator’s decision. Id. at 768.

Whether a person’s interest in the challenged administrative action is
sufficient to confer standing is a factual determination to be undertaken on a
case by case basis. Id. at 767. When evaluating whether an appealing party has
standing in this context, we consider: (1) the proximity of the challenging party’s
property to the subject site; (2) the type of change proposed; (3) the immediacy of
the injury claimed; (4) the challenging party’s participation in the administrative
hearings; and (5) any other relevant factor bearing on whether the appealing
party has a direct, definite interest in the outcome of the proceeding. Id. We
generally review the trial court’s factual findings deferentially. Id. We will uphold
the trial court’s decision regarding standing unless it is unsupported by the
evidence or legally erroneous. Golf Course Investors of NH v. Town of Jaffrey,
161 N.H. 675, 680 (2011).
 We construe the petitioner’s brief to contend that the trial court erred by:
(1) not applying the summary judgment standard to the motion to dismiss; (2)
not viewing the facts in the light most favorable to him; (3) “finding [he] lacked
standing on the basis of his proximity, the lack of significant change proposed,
and a lack of injury-in-fact from the project”; (4) basing “its decision, in part, on a
portion of the merits of the appeal, namely that the [ZBA] and Planning Board
failed to solicit information from the [intervenor] viz. lighting, traffic impact,
noise, smoke, and other impacts”; (5) limiting its consideration of injury to
economic loss; (6) applying our test for standing “in a manner contradicting the
[federal] standard governing injury-in-fact in the case of environmental litigation”;
(7) not finding that “[w]here there is ‘injury-in-fact[,]’ . . . there is ‘proximity’”; and
(8) not considering “the environmental sensitivity of existing uses surrounding
the proposed use in determining proximity.”

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

Affirmed.

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

Eileen Fox,
Clerk

2