Robert McDonald v. Town of Raymond Planning Board; Robert K. McDonald & a. v. Town of Raymond Zoning Board of Adjustment

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0001, Robert McDonald v. Town of
Raymond Planning Board; Robert K. McDonald & a. v. Town of
Raymond Zoning Board of Adjustment, the court on April 16,
2021, 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
plaintiffs, Robert and Kathleen McDonald, appeal an order of the Superior
Court (Delker, J.) upholding the decision of the defendant, the Town of
Raymond (Town) Planning Board (board), granting conditional site plan
approval to the intervenor, Mardan Investment Group (Mardan), for a
condominium development project in Raymond.1 We affirm.

We repeat the relevant facts recited by the trial court in its order. The
development at issue is situated on property currently owned by Mardan and
consists of 172 townhomes in 43 buildings connected by a cul-de-sac-style
network of roads. In 2016, Mardan’s predecessor-in-interest, Sterling Homes,
LLC (Sterling), engaged in a nonbinding discussion about the project with the
board. Sterling acknowledged that the project’s proposed road network did not
comply with Town regulations in certain respects, but explained that the roads
were designed to give the development a “slow-moving neighborhood type feel.”
Sterling also expressed its intent that the road network in the development
would never be made public.

In March 2017, Mardan submitted a site plan review application for the
project, which was accepted as complete for review in June. It was noted that
Mardan was seeking a waiver of all requirements that the project meet the
Town’s road standards.

In September, the board denied the request for waiver of the requirement
that the Town have a 50-foot-wide right of way along the private road network.
The board encouraged Mardan to submit a revised project design that would
not require that waiver.

1 To the extent the McDonalds also appeal the trial court’s decision upholding a related decision of

the Town of Raymond Zoning Board of Adjustment, they fail to brief any argument related to that
decision that they raised in their notice of appeal. Accordingly, we deem those arguments waived.
See Girard v. Town of Plymouth, 172 N.H. 576, 591 (2019).
 In October, Mardan submitted four different plans, each showing public
roads designed to Town standards and, therefore, requiring no waiver. At a
November board meeting, a Mardan representative indicated that the
redesigned roads would cost less to build, but would not provide the
neighborhood, community-based character Mardan had hoped to achieve. The
representative also noted that eliminating the neighborhood, community-based
character would lower sales prices. Several board members expressed a
preference for the prior design over the new plans, and it was suggested that
the original plan could be modified slightly to reduce the need for waivers. The
board requested that Mardan proceed with a minimally-revised original plan,
which would show a potential 50-foot-wide right of way and identify the waivers
that would be required at each point in the development’s road network.

Mardan sent a new waiver request package to the board in December,
indicating the points on the private roadway network where it was requesting
waivers. The only revision from the original plan was the relocation of one
building to accommodate the potential 50-foot-wide right of way now depicted
on the revised plan. In January 2018, the board granted several of Mardan’s
requested waivers, including waiver of the requirement that private roads meet
Town standards.

Following several objections by the McDonalds’ counsel to the depicted
50-foot-wide right of way, the board clarified that, although it believed the
revised plan complied with the right of way requirement, it nevertheless
reconsidered its September 2017 vote to deny waiver of that requirement, and,
instead, now granted that waiver. The board, thereafter, voted to waive
additional road standard requirements.

In May, the board granted the last remaining waiver request, which
related to driveway slopes, and, in October, conditionally approved Mardan’s
application. The McDonalds filed a petition for certiorari in superior court,
seeking review of the board’s conditional approval of the project. The trial
court affirmed the board’s decision, and the McDonalds now appeal,
challenging only the board’s finding, and the trial court’s affirmance, that
Mardan proved unnecessary hardship.

The superior court’s review of a planning board decision is limited. Prop.
Portfolio Group v. Town of Derry, 163 N.H. 754, 757 (2012). The superior court
“must treat the board’s factual findings as prima facie lawful and reasonable,
and cannot set the decision aside absent unreasonableness or identified error
of law.” Id. “The appealing party bears the burden of persuading the trial
court that, by the balance of probabilities, the board’s decision was
unreasonable.” Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 79
(2004). “The review by the superior court is not to determine whether it agrees
with the planning board’s findings, but to determine whether there is evidence
upon which they could have been reasonably based.” Id.

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 Our review of the superior court’s decision is similarly limited. Girard v.
Town of Plymouth, 172 N.H. 576, 581 (2019). We will uphold the decision on
appeal “unless it is unsupported by the record or legally erroneous, looking to
whether a reasonable person could have reached the same decision as did the
trial court based upon the same evidence.” Prop. Portfolio Group, 163 N.H. at
757-58 (citation omitted).

The McDonalds first argue that the board and the trial court erred in
failing to apply the same unnecessary hardship standard that applies to
variances. In the alternative, they argue that “‘hardship to the applicant’ must
include proof of financial hardship, for which no evidence was offered.” We
address each argument in turn.

The McDonalds note that, in the context of variances, unnecessary
hardship is statutorily defined in relation to “special conditions of the property
that distinguish it from other properties in the area.” RSA 674:33, I(b)(1)
(Supp. 2020). They also acknowledge that the statute relating to site plan
review regulations permits such regulations to include provision for their
waiver if “[s]trict conformity would pose an unnecessary hardship to the
applicant and waiver would not be contrary to the spirit and intent of the
regulations.” RSA 674:44, III(e)(1) (2016). They argue, “[h]owever, [that]
because [our] variance cases often use words indicating the object of the
hardship is the applicant, but the analysis remains focused on the property, it
appears that the variance standard applies equally to waivers.” They therefore
conclude that, “the focus of the analysis in waiver cases should be on the
land,” and that because “there was no showing of any unnecessary hardship
concerning the land,” the board applied an erroneous standard. We disagree.

The statutes are clear: the unnecessary hardship standard for a variance
references conditions of the property, see RSA 674:33, I(b)(1); the unnecessary
hardship prong of the waiver from site plan regulations does not, see RSA
674:44, III(e)(1). We will not read into RSA 674:44, III(e)(1) language that the
legislature did not see fit to include and, accordingly, we reject the McDonalds’
contention that the board applied an erroneous standard for determining
unnecessary hardship. See Girard, 172 N.H. at 582 (noting that, in
interpreting statutes, we will not consider what the legislature might have said
or add language to statute that the legislature did not see fit to include).

The McDonalds next argue that the phrase “unnecessary hardship to the
applicant” in RSA 674:44, III(e)(1) must “mean the impact on the developer’s
financial circumstances,” and that the board erred when it “did not consider
the financial impact on [Mardan].” Further, the McDonalds contend that no
evidence of financial hardship to Mardan was introduced. Rather, according to
the McDonalds, Mardan “conceded, and even advocated, that its design choices
were aesthetic, and not financial.” (Footnote omitted.) However, the
McDonalds cite no case or statute equating the unnecessary hardship standard

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of RSA 674:44, III(e)(1) to “impact on the developer’s financial circumstances.”
To the contrary, in Property Portfolio Group, for instance, we concluded that
there was “more than ample support” in the record to support the planning
board’s waiver of a setback requirement where the applicant “presented
evidence establishing that the setback caused unnecessary hardship because it
interfered with traffic and access to the building by emergency and delivery
vehicles, and could not otherwise be complied with safely.” Prop. Portfolio
Group, 163 N.H. at 759.

Citing Auger v. Town of Strafford, 156 N.H. 64 (2007), the McDonalds
argue that “waivers are not for the purpose of the Planning Board to choose the
most attractive design.” Auger, however, does not support the McDonalds’
position. In Auger, we held that the town’s planning board erred by waiving a
subdivision regulation’s ten-lot requirement because it “had no evidence before
it that [a] loop road configuration would cause any hardship to [the developer],
much less ‘undue hardship.’” Auger, 156 N.H. at 65, 67. Instead, the “record
reveal[ed] that the sole reason that the board decided to waive the ten-lot
requirement was because it preferred the cul-de-sac design, not because the
loop road design would cause ‘undue hardship or injustice’ to” the developer.
Id.

Here, by contrast, there was evidence before the board of undue
hardship to Mardan. The court found that interference with Mardan’s
“objective of creating a meandering network of walkable[] neighborhoods with
slow-moving traffic” constituted, in part, undue hardship with respect to all but
one of the waivers at issue. As the trial court explained:

During the Planning Board’s consideration of the project, it was
noted that the lowest speed limit set forth in the Town standards is
30 miles per hour. In constructing this project, however, Mardan
sought to utilize a speed limit of 15 miles per hour, and to
incorporate passive speed control measures to force drivers to
abide by that limit. This was particularly important because, as a
private roadway network, unit owners could not rely on police
officers to enforce the speed limit within the project.
While the site plan application was pending, Mardan presented
evidence to the Planning Board that although it could design a
project that contained the same density without obtaining the
waivers at issue, the resulting roads would encourage higher
speeds. Mardan also presented evidence that current market
demands favor the more walkable communities, and thus sales
prices would be higher under Mardan’s proposed design. In light
of this evidence, it was reasonable for the Planning Board to
conclude that Mardan would suffer unnecessary hardship — in the
form of, among other things, lower sales prices — if the Planning
Board did not grant the waivers at issue.

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 With respect to the last waiver — allowing use of plastic, rather than
concrete, pipe — the trial court noted the board chairman’s own statement that
the concrete pipe standard was “woefully outdated” and that equivalent plastic
pipe was generally considered better than concrete. (Quotation omitted.) The
court therefore found it “reasonable for the [board] to conclude that forcing
Mardan to use an inferior, higher-priced product would result in unnecessary
hardship to Mardan.”

The McDonalds nevertheless contend that “[t]o the extent Mardan or its
attorney asserted that its preferred design would be most marketable, it offered
opinion, but no data.” (Footnote omitted.) We disagree that this constituted a
lack of evidence. We rejected a similar claim in Harborside Associates v.
Parade Residence Hotel, 162 N.H. 508 (2011). There, the abutter argued that
there was no evidence before the zoning board that the marquee signs at issue
would not diminish surrounding property values. Harborside Assocs., 162
N.H. at 519. The abutter acknowledged that the applicant’s attorney had
“represented this to be the case,” but argued that “the attorney’s statement did
not constitute credible evidence.” Id. We disagreed, noting that it was for the
zoning board “to resolve conflicts in evidence and assess the credibility of the
offers of proof.” Id. Similarly, here, it was for the board to assess the
credibility of Mardan’s representations and proffered opinions on the relative
marketability of the alternative designs.

For all of the above reasons, we affirm the trial court’s order.

Affirmed.

HICKS, BASSETT, HANTZ MARCONI, and DONOVAN, JJ., concurred.

Timothy A. Gudas,
Clerk

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