Mark Brighton & a. v. City of Portsmouth

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0344, Mark Brighton & a. v. City of
Portsmouth, the court on March 9, 2020, 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.

Plaintiffs Carolyn Bray and Patience Horton appeal an order of the
Superior Court (Schulman, J.) in favor of the defendant, the City of Portsmouth,
and the intervenors, the Portsmouth Housing Authority and PHA Housing
Development, Ltd. (collectively the defendants), dismissing their appeal from a
decision by the City of Portsmouth Planning Board (board). They contend that
the trial court erred by holding that: (1) they failed to challenge the eligibility of
two members of the board at the earliest possible time; (2) allowing two ex officio
board members who did not reside in the city to vote was a harmless error; (3)
the non-resident board members’ participation in the board’s decision did not
render all subsequent board votes on the defendants’ plan invalid and voidable;
(4) ex officio board members were not required to be residents of the city; and (5)
the non-resident members’ participation on the board could not be challenged
because they were “de facto” board members, in unobstructed possession of their
seats on the board and discharged those duties in full view of the public, see
State v. Doyle, 156 N.H. 306, 310 (2007).

Our review of a trial court’s decision in an appeal of a municipal planning
board’s decision is deferential; we will uphold the trial court’s decision on appeal
unless it is unsupported by the evidence or legally erroneous. Rochester City
Council v. Rochester Zoning Bd. of Adjustment, 171 N.H. 271, 275 (2018); see
Bayson Properties, Inc. v. City of Lebanon, 150 N.H. 167, 170 (2003) (stating
same standard of review applies to trial court orders concerning decisions by
planning boards and zoning boards of appeal). We do not inquire whether we
would find as the trial court found, but rather whether the evidence before the
court reasonably supports its findings. Vigeant v. Town of Hudson, 151 N.H.
747, 750 (2005). As the appealing parties, the plaintiffs have the burden of
demonstrating that the trial court committed reversible error. See Gallo v.
Traina, 166 N.H. 737, 740 (2014).

Under the particular facts of this case, we assume, without deciding, that
the trial court erred in finding that the plaintiffs failed to raise the non-residency
of two board members at the earliest possible time. However, we conclude that,
even if the non-resident members were ineligible to be ex officio board members,
see RSA 672:5 (2016); RSA 673:1, I (2016), their votes were harmless. They
voted on only the board’s acceptance of the plan and granting of a conditional
use permit reducing the number of parking spaces required; they did not vote on
the plan’s final approval. Furthermore, the plaintiffs acknowledged to the trial
court that, if the two non-resident members’ votes were stricken, a majority of the
board still voted in favor of accepting the plan and granting the conditional use
permit. The non-resident members’ votes were harmless because a sufficient
number of the remaining board members voted in favor.

The plaintiffs rely upon Winslow v. Holderness Planning Board, 125 N.H.
262 (1984), to argue that the non-residents’ participation “was sufficient to
invalidate the [board’s] decision because it was impossible to estimate the
influence one member might have on his associates.” Id. at 268. However, in
Winslow, the board member was disqualified due to bias. Id. at 267.

In the case at hand, the plaintiffs do not appeal the trial court’s finding
that the non-resident members were not biased. See Webster v. Town of Candia,
146 N.H. 430, 441-42 (2001) (stating that it is the plaintiff’s burden to rebut
presumption that planning board members are unbiased). Nor do the plaintiffs
contend that the disputed board members’ non-resident status somehow affected
other board members. Thus, the “State constitutional mandate for judicial
impartiality,” Winslow, 125 N.H. at 268, in the board’s quasi-judicial action was
not implicated by the non-resident members’ participation.

In light of this conclusion, we need not address the plaintiffs’ other
arguments.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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