Kulick's, Inc. v. Town of Winchester

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0373, Kulick’s, Inc. v. Town of
Winchester, the court on January 31, 2020, issued the following
order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The plaintiff, Kulick’s, Inc., appeals an order of the Superior Court
(Ruoff, J.) upholding a decision of the planning board for the Town of
Winchester to approve an application for site plan review. As approved, the site
plan allows for the construction of a gas station and convenience store with a
“drive-through” window at the intersection of Routes 10 and 78 in the town.
The site will have driveway access on both Route 10 and Route 78.

The application sought to modify a site plan that the board had
previously approved, see Kulick’s, Inc. v. Town of Winchester, No. 2016-0054,
2016 WL 6472134 (N.H. Sept. 16, 2016), by, among other things, relocating the
Route 10 driveway entrance an additional 80 feet away from the intersection,
and eliminating a condition in the prior site plan that had prohibited left-hand
turns from the property onto Route 10. On appeal, the plaintiff, an abutter to
the project, argues that the trial court erred by upholding the board’s decision
not to require measures that would prevent left-hand turns either from the
property onto Route 10, or from Route 10 onto the property.

The trial court’s review of a planning board decision is limited. Trustees
of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 504 (2019). The trial
court must treat the board’s findings of fact as prima facie lawful and
reasonable, and may not disturb the board’s decision absent unreasonableness
or identified error of law. Id.; see RSA 677:15, V (2016). The trial court’s task
is not to determine whether it agrees with the board’s findings, but whether
there is evidence upon which the board’s findings could reasonably have been
based. Trustees of Dartmouth Coll., 171 N.H. at 504. It is the appealing
party’s burden to demonstrate that, by the balance of probabilities, the board’s
decision was unreasonable. Id.

Our review of the trial court’s order is likewise limited. Id. We will
reverse the trial court only if its decision is unsupported by the evidence or
legally erroneous. Id. We review the trial court’s order to determine whether a
reasonable person could have reached the same decision as the trial court
based upon the same evidence that was before it. Id.

In this case, the record on appeal reflects that the necessity of
restrictions on left-hand turns either onto or from Route 10 was a disputed
issue before the board. Although the plaintiff’s expert recommended that the
applicant be required to install a “splitter island” in the Route 10 driveway
entrance so as to prevent cars from making left-hand turns into or out of the
property, the applicant submitted both a complete traffic study and a
supplemental report responding to the plaintiff’s concerns in which its traffic
engineer opined that a restriction on left-hand turns onto or from Route 10 was
unnecessary. Additionally, the applicant provided a permit for the driveway
issued by the New Hampshire Department of Transportation that contained no
restrictions on left-hand turns. Finally, members of the board specifically
noted that there were no problems with left-hand turns at that location. See
Continental Paving v. Town of Litchfield, 158 N.H. 570, 575 (2009) (observing
that members of a zoning board of adjustment may consider their own
knowledge concerning relevant factors, such as traffic conditions, resulting
from familiarity with an area in arriving at a decision). Upon this record, we
conclude that the trial court’s order was neither unsupported by the evidence
nor legally erroneous. Trustees of Dartmouth Coll., 171 N.H. at 504.

Affirmed.

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

Timothy A. Gudas,
Clerk

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