Alfred E. Gagnon v. Town of Pelham

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0031, Alfred E. Gagnon v. Town of
Pelham, the court on April 21, 2022, 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
plaintiff, Alfred E. Gagnon, appeals an order of the Superior Court (Temple, J.)
affirming the decision of the Town of Pelham Planning Board (“the Planning
Board”) to grant subdivision approval to the owners of an abutting property.
The plaintiff argues that the Planning Board lacked jurisdiction to grant the
approval because the lots in the proposed subdivision failed to satisfy the street
access requirement of RSA 674:41 (2016). We affirm.

The following facts are drawn from the trial court’s order or are otherwise
supported by the record. The plaintiff owns a parcel of property on the south
side of Greeley Road in Pelham. In 1971, the plaintiff acquired an adjacent
property, also located on the south side of Greeley Road (“the lot”). Sometime
between 1971 and 1987, the Town of Pelham (“the Town”) moved the paved
surface of Greeley Road on the northern boundary of the lot approximately
seventy-five feet northward. The plaintiff subsequently sold the lot.

In 2018, the owners of the lot sought approval for a two-lot subdivision.
Because at least one of the new lots would have less frontage on Greeley Road
than required by the Town of Pelham zoning ordinance, the owners applied to
the Zoning Board of Adjustment for a variance from the road frontage
requirement in the ordinance. The Zoning Board approved the variance, a
decision that the plaintiff appealed to the superior court. On December 6,
2019, the superior court upheld the issuance of the variance.

In April and June of 2020, the Planning Board held two public meetings
related to the proposed subdivision. The plaintiff opposed the proposal,
arguing that, because the paved surface of Greeley Road had been moved
seventy-five feet northward, the lot no longer had frontage on Greeley Road
and, as a consequence, the Planning Board did not have jurisdiction to hear
the subdivision proposal. The Planning Board approved the subdivision, and
the plaintiff appealed to the superior court.

The superior court upheld the grant of subdivision approval, reasoning
that even though the paved surface of Greeley Road had been moved
northward, the lot continued to have frontage on Greeley Road meeting the
street access requirement of RSA 674:41 and, therefore, that the Planning
Board had jurisdiction. The plaintiff filed a motion to reconsider. The trial
court denied the motion, and this appeal followed.

On appeal, the plaintiff argues that the trial court erred when it ruled
that the Planning Board had jurisdiction to consider the owners’ subdivision
proposal. The plaintiff asserts that, because the paved surface of Greeley Road
was moved seventy-five feet northward, the lot no longer has street access as
required by RSA 674:41, I, and, therefore, the Planning Board did not have
jurisdiction over the subdivision application. The Town counters that, because
RSA 674:41 does not in any way limit the Planning Board’s jurisdiction, the
trial court did not err when it ruled that the Planning Board had jurisdiction.
The Town also argues that the lot satisfies the street access requirement of RSA
674:41. During oral argument, the plaintiff acknowledged that the only issue
before us is whether the Planning Board had jurisdiction to hear the owners’
subdivision proposal. We agree with the Town that, regardless of whether the
lot satisfies the street access requirement set forth in RSA 674:41, the Planning
Board had jurisdiction to consider the subdivision application.

The trial court’s review of a planning board decision is limited. Girard v.
Town of Plymouth, 172 N.H. 576, 581 (2019); RSA 677:15, V (2016). The trial
court must treat the factual findings of the planning board as prima facie
lawful and reasonable and cannot set aside its decision absent
unreasonableness or an identified error of law. Girard, 172 N.H. at 581. Our
review is similarly limited, and we must affirm the trial court’s decision unless
that decision is not supported by the evidence or is legally erroneous. Id.

In concluding that the Planning Board had jurisdiction to hear the
subdivision proposal, the trial court analyzed whether the lot meets the street
access requirement of RSA 674:41. We do not think such an analysis is
necessary, because the question of whether the lot had road frontage is
immaterial to a determination of whether the Planning Board had jurisdiction
to consider the subdivision proposal. Because we conclude that whether a lot
meets the street access requirement of RSA 674:41 has no impact on the
Planning Board’s jurisdiction, we affirm.

Whether a proposed subdivision’s failure to meet the street access
requirement of RSA 674:41 deprives the Planning Board of jurisdiction is an
issue of statutory interpretation, which presents a question of law subject to
our de novo review. See Rogers v. Rogers, 171 N.H. 738, 743 (2019). We first
look to the language of the statute itself, and, if possible, construe that
language according to its plain and ordinary meaning. Id. 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.

2
 RSA 674:41 provides that “[f]rom and after the time when a planning
board shall expressly have been granted the authority to approve or disapprove
plats by a municipality, as described in RSA 674:35,” no building shall be
erected on nor building permit issued for any lot unless a street meeting
certain criteria gives access to the lot. RSA 674:41, I. Although, by its plain
language, the statute addresses only the issuance of building permits, “[t]his
court has held that the statute applies with equal force to building permits and
subdivision permits.” Turco v. Town of Barnstead, 136 N.H. 256, 265 (1992).
Significantly, nothing in RSA 674:41 prevents a planning board from
considering a subdivision proposal with lots that do not satisfy the street
access requirement of the statute. Simply put, although the failure to satisfy
the street access requirement of RSA 674:41 may result in the disapproval of a
subdivision application, it does not divest the planning board of jurisdiction.

Moreover, the statutory scheme specifically grants planning boards the
authority to define when its jurisdiction is invoked:

The planning board shall specify by regulation what constitutes a
completed application sufficient to invoke jurisdiction to obtain approval.
A completed application means that sufficient information is included or
submitted to allow the board to proceed with consideration and to make
an informed decision. A completed application sufficient to invoke
jurisdiction of the board shall be submitted to and accepted by the board
only at a public meeting of the board.
RSA 676:4, I(b) (Supp. 2021). Here, there is no evidence in the record that the
owners’ subdivision proposal was incomplete or failed to satisfy any regulation
related to the jurisdiction of the Planning Board.

Accordingly, we conclude that the trial court did not err when it ruled
that the Planning Board properly exercised jurisdiction over the owners’
subdivision proposal. In view of the foregoing, we need not address the
plaintiff’s remaining arguments on appeal.

Affirmed.

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

Timothy A. Gudas,
Clerk

3