Seabrook Onestop, Inc. & a. v. Town of Seabrook & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0251, Seabrook Onestop, Inc. & a. v.
Town of Seabrook & a., the court on September 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, Seabrook Onestop, Inc. (Seabrook Onestop) and other Seabrook
property owners, including other gas station owners or operators, appeal an
order of the Superior Court (Schulman, J.) upholding decisions of the zoning
board of adjustment (ZBA) and planning board for defendant Town of Seabrook
(Town) regarding the request by defendant Waterstone Properties, Inc.
(Waterstone) to amend its site plan to build a gas station on its property. We
affirm.

I. Facts

The relevant facts follow. Waterstone is a developer, acting on behalf of
ASKJA Real Estate Holdings, LLC (ASKJA). In 2013, ASKJA purchased a 19-
acre lot in Seabrook located in the heart of Seabrook’s commercial strip. The
lot has frontage on U.S. Route 1 and on Provident Way, a class V or better
highway. That section of Route 1 contains box stores, fast food restaurants,
shopping centers, gas stations, and other commercial enterprises. ASKJA’s lot
benefited from a 2004 variance, which made the entire lot part of the
commercial zoning district. Gas stations are permitted uses in the commercial
zoning district.

In 2013, ASKJA received site plan approval from the planning board to
develop a large shopping center on the lot. Four years later, in 2017,
Waterstone, acting on ASKJA’s behalf, obtained approval to subdivide the lot
by carving out a one-acre lot suitable for a commercial use and associated
parking. For ease of reference, we refer to the one-acre lot as the “New Lot”
and the remaining 18 acres as the “Main Lot.”

Before it could obtain subdivision approval, Waterstone needed variances
to render the New Lot buildable. Specifically, Waterstone sought variances
from the requirements that the New Lot have frontage on a public way, that an
existing building on the Main Lot be set back from the New Lot’s boundary, and
that a proposed building on the New Lot be set back from the Main Lot’s
boundary. The ZBA granted these variances in October 2017, and its decision
was not appealed. Thereafter, the planning board approved Waterstone’s
subdivision. As a result, the New Lot was created as a saleable, buildable,
commercial lot with a deeded easement to use the driving lanes of the Main Lot
to access Provident Way. The planning board’s subdivision approval also was
not appealed.

In 2018, Waterstone sought planning board approval to amend the 2013
site plan. Although the 2013 plan indicated that a “retail building” would be
constructed in the area of the New Lot, the amended plan proposed that a gas
station be constructed instead. The gas station would have six gas pumps
under a canopy, underground storage tanks, a 400-square-foot kiosk and
associated generator, a self-service air pump, and nearby parking. BJ’s
Wholesale Club (BJ’s) would operate the gas station. The gas station was
designed to serve only BJ’s members.

The planning board held public hearings on the amended plan. The
plaintiffs objected to it. The planning board rejected the plaintiffs’ arguments
and approved the amended site plan with conditions. Two of the conditions
required that the plan depict all wells that are within 250 feet, and that
Waterstone obtain all requisite approvals from the New Hampshire Department
of Environmental Services or “any other party.”

The plaintiffs simultaneously appealed the planning board’s conditional
approval to the ZBA and the superior court. The ZBA denied the plaintiffs’
appeal and subsequent motion for rehearing. The plaintiffs then appealed the
ZBA’s decision to the superior court. The trial court consolidated the plaintiffs’
appeals. The court issued a 37-page, well-reasoned, detailed order upholding
the planning board and ZBA decisions. The plaintiffs unsuccessfully moved for
reconsideration, and this appeal followed.

II. Analysis

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) (ZBA). We will reverse the trial court’s
decision only if it is not supported by the evidence or is legally erroneous.
Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 504 (2018)
(planning board); Rochester City Council v. Rochester Zoning Bd. of
Adjustment, 171 N.H. 271, 275 (2018) (ZBA). 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.

The trial court’s review of ZBA and planning board decisions is also
limited. The trial court must uphold a ZBA or planning board decision unless
there is an error of law or the court is persuaded by the balance of probabilities

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that the decision was unreasonable. See RSA 677:6, :15, V (2016). The trial
court must treat factual findings of the planning board or ZBA as prima facie
lawful and reasonable. Id. The review by the trial court is not whether it
agrees with the findings of the ZBA or planning board, but whether there is
evidence upon which those findings could have been reasonably based.
Trustees of Dartmouth Coll., 171 N.H. at 504; Rochester City Council, 171 N.H.
at 275.

A. ZBA Decision

On appeal, the plaintiffs first argue that the trial court erred by
upholding the ZBA’s decision because it failed to satisfy RSA 676:3 by stating
only that the ZBA “support[ed] [the] Planning Board decision.” See RSA 676:3
(2016) (requiring a “local land use board” to provide an applicant “with written
reasons” when the board disapproves “an application for a local permit” and
requiring the board’s “written decision containing the reasons therefor” to be
available for public inspection). Here, however, the plaintiffs appealed only
issues of law to the ZBA, which the superior court reviewed de novo. Under
these circumstances, we discern no error in the trial court’s review despite the
ZBA’s failure to further explain its decision. See Kalil v. Town of Dummer
Zoning Bd. of Adjustment, 155 N.H. 307, 313 (2007).

B. Planning Board Decision

The plaintiffs next assert that the trial court erroneously upheld the
planning board’s conditional approval because: (1) the 2017 variances were
void; (2) using the New Lot for a gas station is outside the scope of those
variances; (3) the conditional approval violated RSA 674:41; and (4) the board
failed to sufficiently address the plaintiffs’ concerns about traffic and well
contamination. We consider each argument in turn.

1. Validity of 2017 Variances

The plaintiffs first argue that, because it required fact-finding, the trial
court erred when it decided, in the first instance, that the 2017 variances were
valid even though Seabrook Onestop failed to receive statutory notice. See RSA
676:7, I(a) (Supp. 2020) (requiring that notice of the ZBA’s hearing on a
variance request must be given to “[e]very abutter . . . by verified mail . . . not
less than 5 days before the date fixed for the hearing”); see Hussey v. Town of
Barrington, 135 N.H. 227, 232 (1992) (explaining that a variance granted when
statutory notice was not given to an abutter is “void from the very date on
which it was issued”). The validity of the 2017 variances presents a question of
law. Therefore, we conclude that the trial court did not err by addressing the
question of validity.

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 Alternatively, the plaintiffs assert that the superior court erred by
determining that Seabrook Onestop was not an “abutter” entitled to statutory
notice of Waterstone’s variance application and the hearing(s) thereon. See
RSA 676:7, I(a). We disagree.

RSA 672:3 defines an “abutter” for the purposes of statutory notice as
“any person whose property is located in New Hampshire and adjoins or is
directly across the street or stream from the land under consideration by the
local land use board.” RSA 672:3 (2016). The trial court determined that
Seabrook Onestop “was not an abutter for notice purposes” because its lot “sits
catty-corner, or indirectly, across Route 1 from the Main Lot.” (Emphasis
omitted.)

The plaintiffs argue that, even though Seabrook Onestop’s lot is
“diagonally across the street” from the Main Lot, it was an “abutter” under RSA
672:3. However, as the trial court correctly explained, being “diagonally across
the street” is not the same as being “directly across the street.” We have
reviewed the plaintiffs’ remaining arguments on this issue and conclude that
they warrant no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322
(1993). We, therefore, uphold the trial court’s determination that the 2017
variances are valid despite the lack of statutory notice to Seabrook Onestop.

2. Scope of the Variances

The plaintiffs next assert that, because it required fact-finding, the trial
court erred by deciding, in the first instance, that using the New Lot for a gas
station falls within the scope of the 2017 variances. Although, generally,
determining the scope of a variance presents a question of fact, see 1808 Corp.
v. Town of New Ipswich, 161 N.H. 772, 775 (2011), here, it is a question of law.
See In the Matter of Patient & Patient, 170 N.H. 252, 254 (2017) (explaining
that the interpretation of written documents presents a question of law).
Accordingly, the trial court did not err by addressing the question of validity.

Alternatively, the plaintiffs contend that the trial court decided the issue
incorrectly. We disagree. Using the New Lot for a gas station was not outside
the scope of the 2017 variances as a matter of law.

The scope of the 2017 variances did not concern the use to which the
New Lot would be put. Rather, those variances only granted Waterstone
equitable relief from dimensional requirements. Indeed, no equitable relief to
use the lot for a gas station was necessary. Pursuant to the 2004 variance,
Waterstone’s entire lot is in the commercial zoning district where gas stations
are permitted uses. Under these circumstances, using the New Lot for a gas
station was not outside the scope of the 2017 variances. The plaintiffs’
remaining arguments on this issue do not warrant any further discussion. See
Vogel, 137 N.H. at 322.

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 3. RSA 674:41

The plaintiffs next contend that, because access to the New Lot fails to
satisfy RSA 674:41, the planning board acted unreasonably by approving the
amended site plan, and the trial court erred by upholding that decision. We
disagree.

RSA 674:41 governs the issuance of building permits. See RSA 674:41
(2016). It provides, in pertinent part, that “no building shall be erected on any
lot within any part of the municipality nor shall a building permit be issued for
the erection of a building unless the street giving access to the lot” meets
certain requirements. RSA 674:41, I. The “street giving access to the lot”
refers to “a street or way abutting the lot and upon which the lot has frontage.”
RSA 674:41, III. The phrase “street giving access to the lot” does not “include a
street from which the sole access to the lot is via a private easement or right-of-
way, unless such easement or right-of-way also meets the criteria set forth in
subparagraph I(a), (b), (c), (d), or (e).” Id. If the street giving access to the lot is
a private road, a building permit may be issued provided that, among other
requirements, “[t]he local governing body . . . has voted to authorize the
issuance of building permits for the erection of buildings on said private road
or portion thereof.” RSA 674:41, I(d)(1).

The plaintiffs argue that access to the New Lot does not satisfy RSA
674:41 because “the sole access to the lot is via a private easement.” Even if
this is the case, however, the planning board was not precluded from
conditionally approving Waterstone’s amended site plan.

Compliance with RSA 674:41 was a condition subsequent to the
planning board’s approval of Waterstone’s amended site plan. See Prop.
Portfolio Group v. Town of Derry, 154 N.H. 610, 615 (2006). The planning
board’s approval was expressly conditioned upon Waterstone obtaining “[a]ll
approvals that are required from . . . any . . . party.” Because compliance with
RSA 674:41 was a condition subsequent, it need not have been fulfilled before
the planning board could conditionally approve Waterstone’s amended site
plan. See id. at 615-16 (explaining that a condition subsequent does not delay
site plan approval). Accordingly, even if, as the plaintiffs argue, access to the
New Lot fails to satisfy RSA 674:41, the planning board did not act
unreasonably by conditionally approving Waterstone’s amended site plan, and
the trial court did not err by upholding that approval.

4. Traffic and Setbacks from Wells

The plaintiffs next argue that the trial court “act[ed] unlawfully and
unreasonably” by upholding the planning board’s decision because the board
failed to sufficiently address their concerns about traffic and well
contamination. They assert that to have adequately addressed the plaintiffs’

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traffic concerns, the planning board should have discussed “measures to direct
gas station traffic to Provident Way” and “traffic control measures . . . relative
to the main parking area.” Although the planning board imposed a condition
that all wells located within 250 feet be added to the site plan, the plaintiffs
argue that the board should have “establish[ed] [a] consequence should any
private well be located within 250 feet of a tank.” The trial court’s role in this
case was not to sit as a super planning board. Its review was limited by
statute. See RSA 677:15, V. Based upon our review of the record submitted
on appeal, we conclude that 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.

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

Affirmed.

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

Timothy A. Gudas,
Clerk

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