PPI Enterprises, LLC v. Town of Windham

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case Nos. 2020-0249 and 2020-0250, PPI Enterprises,
LLC v. Town of Windham, the court on June 23, 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. In these
consolidated appeals, the plaintiff, PPI Enterprises, LLC (PPI), appeals orders of
the Superior Court (St. Hilaire, J.) remanding PPI’s application for site plan
approval to the planning board for the defendant, the Town of Windham
(Town), and staying PPI’s appeal of a decision of the Town’s zoning board of
adjustment (ZBA). We affirm in part, vacate in part, and remand.

I. Facts

The following facts either were recited by the trial court or reflect the
content of documents in the appellate record. In 2018, PPI applied for site plan
approval to construct a three-story, 93,000 square foot, self-storage facility on
its 45.57-acre Windham property. After seven public hearings over the course
of thirteen months, during which time the primary issue discussed was PPI’s
proposed use of blasting to develop the site, the planning board denied the
application. The planning board’s sole basis for doing so was that the site plan
was inconsistent with section 100 of the Windham Zoning Ordinance, which
sets forth the purposes of the ordinance. PPI simultaneously appealed the
planning board’s decision to the superior court and the ZBA. PPI asked the
superior court to stay the appeal until the ZBA acted. The superior court
granted that request.

In its appeal to the ZBA, PPI argued that the planning board had
improperly relied upon section 100 of the ordinance. The ZBA agreed with PPI,
reversed the planning board’s decision, and remanded the site plan application
to the planning board for further review. PPI unsuccessfully moved for
reconsideration, and then appealed the ZBA’s decision to the superior court,
arguing that the site plan application met or exceeded the site plan regulations
and should be approved without further proceedings, and asserting that the
ZBA had no authority to remand the application to the planning board.

Meanwhile, after the ZBA reversed the planning board decision, the Town
asked the superior court to remand the site plan application to the planning
board for further proceedings. The trial court granted the Town’s motion in a
margin order. PPI moved the court to reconsider its decision, maintaining that
because the planning board denied PPI’s application solely because it violated
the zoning ordinance, the planning board must have determined that the
application otherwise satisfied the criteria for site plan review. PPI asserted
that in light of the ZBA’s determination that the planning board had relied
improperly upon section 100 of the ordinance to deny the site plan application,
the trial court should not have remanded to the planning board, but instead
should have reversed the planning board’s denial of site plan approval. The
Town moved to stay PPI’s appeal of the ZBA decision pending resolution of PPI’s
appeal of the planning board’s decision. The Town argued that if the trial court
remanded the site plan application to the planning board, PPI’s appeal of the
ZBA decision would be moot and, therefore, should be stayed “indefinitely.”

In an April 6, 2020 order, the trial court denied PPI’s motion to
reconsider and granted the Town’s motion to stay PPI’s appeal of the ZBA
decision. In considering whether to remand PPI’s site plan application for
further review by the planning board, the trial court observed that “the clear
statutory preference is for decisions about land use to be made at the local
level by local boards, particularly when it comes to factual findings that are
often aided by the board’s expertise.” The court observed that the planning
board did not appear to make any factual findings on the necessary site plan
approval criteria or, “[a]t the very least, any findings the Planning Board did
make are not clear on the face of its decision.”

In addition, although the court acknowledged that in a case with a
sufficiently-developed record where the merits of a particular proposal are
clear, it could find, as a matter of law, that the proposal was entitled to site
plan approval, the court concluded that the fact-finding record in the instant
matter was insufficiently developed by the planning board. The trial court
found that the only topic discussed by the planning board before rendering its
decision was the issue of blasting, and the only ground for denying the
application was the application’s purported conflict with section 100 of the
ordinance. Accordingly, the court concluded that “remanding the Application
to the Planning Board to develop a record and make factual findings—or clarify
any factual findings it did make—will allow the Planning Board to perform its
statutory role.”

With regard to the Town’s motion to stay PPI’s appeal of the ZBA’s
decision, the trial court observed that “the procedural posture of [PPI’s appeals]
is unique.” The court stated that “the only decision that the Planning Board
made at this point has already been reversed and there is thus no other
[planning board] decision for the Court to review.” The court noted that “no
party [had] challenged the ZBA’s central ruling that it was improper for the
Planning Board to rely on . . . Section 100 [of the zoning ordinance] in denying
the Application.” The court also explained that although PPI appealed the
ZBA’s decision on the ground that the ZBA had no authority to remand the site

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plan application to the planning board for further review, “this issue is now
moot because the Court itself remanded the Application.” Therefore, the court
reasoned that because the court was remanding the site plan application to the
planning board for further review, “the ZBA Appeal is superfluous because it
presents no issues that have not already been raised in [PPI’s appeal of the
planning board’s decision].”

The trial court noted that the ZBA appeal and the planning board appeal
could have been heard together in a single action before the superior court —
indeed, PPI had requested that the trial court consolidate the two appeals. The
court explained that “[g]iven that the ZBA Appeal and the [planning board]
Appeal both ultimately hinge on a question that can be resolved in the
[planning board] Appeal, there is no practical difference between the Court
consolidating both appeals and then remanding to the Planning Board or
remanding the [planning board] Appeal and staying the ZBA Appeal,” as it did
in its order.

PPI moved for reconsideration of the April 2020 order, which the trial
court denied. The court allowed the planning board, on remand, to “accept
additional evidence prior to its final determination on the Application.”
However, the court observed that “this matter has been before the Planning
Board for a long period of time, and the Planning Board has had significant
time to gather evidence related to the Application.” Accordingly, the court
stated that it “appreciate[d] the Town’s representation” that, on remand to the
planning board, “the review process will . . . not start anew and the next
meeting will likely be the last before the Planning Board votes on the
Application.” The court urged PPI and the planning board to “engage in good
faith efforts to achieve a final resolution concerning the Application.” We
observe that at oral argument, the Town reiterated that the public hearing on
PPI’s application had already closed and that, on remand, the planning board
would resume its deliberations and issue a final decision.

II. Analysis

In this appeal, PPI challenges both the trial court’s decision to remand
PPI’s site plan application to the planning board and its decision to grant the
Town’s motion to stay PPI’s appeal of the ZBA decision. Our review of the
superior court’s decision on appeals arising from a decision of a planning or
zoning board is limited. See Girard v. Town of Plymouth, 172 N.H. 576, 581
(2019) (planning board); Dietz v. Town of Tuftonboro, 171 N.H. 614, 618 (2019)
(zoning board). We will reverse the trial court’s decision only if it is not
supported by the evidence or is legally erroneous. Mt. Valley Mall Assocs. v.
Municipality of Conway, 144 N.H. 642, 647 (2000). We review the trial court’s
decision to determine whether a reasonable person could have reached the
same decision as the trial court based on the evidence before it. Girard, 172
N.H. at 582.

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 Resolving the issues in this appeal requires that we engage in statutory
interpretation. “In matters of statutory interpretation, we are the final arbiter
of the intent of the legislature as expressed in the words of a statute considered
as a whole.” Dietz, 171 N.H. at 619 (quotation omitted). “We first look to the
language of the statute itself, and, if possible, construe that language according
to its plain and ordinary meaning.” Id. (quotation omitted). “We interpret
legislative intent from the statute as written and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include.” Id. (quotation omitted).

As noted above, PPI filed two appeals of the planning board decision: one
to the superior court and one to the ZBA. Because this case involves a
planning board decision with a matter appealable to the ZBA, RSA 677:15,
I-a(a) governs. See RSA 677:15, I-a(a) (2016). That statute provides that
following “final resolution” of proceedings before the ZBA, appeals may be
heard by the superior court on “any or all matters concerning the subdivision
or site plan decided by the planning board or the [ZBA].” Id.

Many of PPI’s appellate arguments stem from its incorrect assertion that
when the planning board denied its application because the application
purportedly violated section 100 of the ordinance, the planning board
necessarily found that the application otherwise satisfied the criteria for site
plan review. PPI contends that “the letter and spirit of RSA 676:3, I
contemplate that the Planning Board would disclose any and all reasons for its
denial of PPI’s site plan application.” PPI reasons that, having identified only
one ground for denial, the planning board must have otherwise approved its
site plan application. Because PPI contends that the planning board already
approved its site plan application, PPI argues that it was error for either the
trial court or the ZBA to remand review of PPI’s site plan application back to
the planning board for a new final decision.

PPI’s interpretation of RSA 676:3, I, is mistaken. See RSA 676:3, I
(2016). That statute requires local land use boards, including a planning
board, to provide an applicant “with written reasons for the disapproval.” Id.
There is nothing in RSA 676:3, I, requiring a local land use board to “disclose
any and all reasons” for denying an application. Nor is there such a
requirement in RSA 676:4, which specifically governs planning boards. See
RSA 676:4, I(h) (2016) (“In case of disapproval of any application submitted to
the planning board, the ground for such disapproval shall be adequately stated
upon the records of the planning board.”). To the extent that PPI argues that
our interpretation of RSA 676:3, I, “encourages dilatory tactics” by the planning
board, its argument, in this case, is misplaced. As PPI correctly notes, a
municipality’s duty to assist arising under Part I, Article 1 of our State
Constitution, precludes a board from engaging in “dilatory tactics in order to
delay a project.” Richmond Co. v. City of Concord, 149 N.H. 312, 315 (2003).

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 Accordingly, contrary to PPI’s argument, the planning board did not
approve PPI’s site plan application subject only to section 100 of the zoning
ordinance. Once the ZBA determined that the planning board erroneously
denied site plan approval based upon section 100 of the ordinance, the sole
basis for the planning board’s decision was addressed, and that aspect of the
ZBA’s decision was not appealed to the superior court. Under these
circumstances, the superior court’s remand to the planning board was
appropriate, and we affirm its decision.

The planning board is the only administrative body with the authority to
approve or disapprove a site plan. See RSA 674:43 (2016). It is now
incumbent upon the planning board, consistent with the Town’s assertions in
the trial court and at oral argument that the public hearing on PPI’s application
has already closed, to resume its deliberations and issue a final decision on
PPI’s site plan application. Should the planning board again deny PPI’s site
plan application, PPI may then appeal the decision in accordance with the
statutory scheme.

We agree with the trial court that PPI’s appeal of the ZBA’s decision to
remand to the planning board is now moot. Regardless of whether the ZBA
had the authority to remand to the planning board, given our affirmance of the
trial court’s remand order, PPI’s site plan application will now be before the
planning board. As the trial court explained, “the only pertinent issue
remaining in the ZBA Appeal [was] the same issue raised in the [planning
board] Appeal—namely, whether remanding the Application to the Planning
Board is appropriate.” Having already concluded that remand to the planning
board was appropriate, the court reasoned that “resolving whether the ZBA
erred in remanding in the first instance will provide no relief to PPI.” We agree
with that analysis. Therefore, we vacate the trial court’s decision to stay PPI’s
appeal of the ZBA’s decision and, in the exercise of our supervisory authority,
instruct the court to dismiss that appeal as moot.

Affirmed in part; vacated in
part; and remanded.

MACDONALD, C.J., and HICKS, BASSETT, and HANTZ MARCONI, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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