Chase Cutts Brigham Neighborhood Association, Inc. & a. v. City of Portsmouth

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0196, Chase Cutts Brigham Neighborhood
Association, Inc. & a. v. City of Portsmouth, the court on April
25, 2022, issued the following order:

The requests of the intervenor, Bethel Assembly of God, Inc., to strike the
brief of the plaintiffs, Chase Cutts Brigham Neighborhood Association, Inc., Hal
Clark, Marilee Clark, Carolyn Collymore, Eldon Collymore, Mary Anne
Gauthier, Jason Karlin, Natasha Karlin, Bernice Kowakski-Richards, and
Edward Richards, are denied. Having considered the briefs and record
submitted on appeal, we conclude that oral argument is unnecessary in this
case. See Sup. Ct. R. 18(1).

The plaintiffs appeal the order of the Superior Court (Ignatius, J.)
upholding decisions of the City of Portsmouth Planning Board to grant
conditional use permits and preliminary and final subdivision approval to the
intervenor for a project on its property. See RSA 677:15, I (2016). The
plaintiffs argue that the superior court erred in ruling that: (1) the conditional
use permits constituted final approvals; (2) the board made sufficient findings
of fact; (3) the proposal constitutes a “mixed use development” under the city’s
zoning ordinance; and (4) frontage on a particular way was proper.

The superior court ruled that the conditional use permits constituted
final approvals because the conditions are ministerial and require no further
discretionary action by the board. See Saunders v. Town of Kingston, 160 N.H.
560, 563-565 (2010) (noting that a conditional approval imposing only
conditions subsequent constitutes a final decision appealable under RSA
677:15, I). The court determined that there was no basis to find that the board
acted unreasonably or illegally in concluding that the proposed development—a
mix of residential, religious, and public park spaces—constituted mixed use.
See Girard v. Town of Plymouth, 172 N.H. 576, 581 (2019) (noting that
superior court cannot set aside planning board’s decision absent
unreasonableness or identified error of law). The court noted that the plaintiffs
cited no specific regulatory provisions that the applications had violated, and
that the board’s factual findings were sufficient. See Prop. Portfolio Group v.
Town of Derry, 163 N.H. 754, 758,-59 (2012) (declining to find in RSA 674:44,
III(e) a requirement that planning board make express findings of fact); cf. Ltd.
Editions Properties v. Town of Hebron, 162 N.H. 488, 492-93 (2011) (superior
court did not err in concluding that record was sufficient to explain board’s
reasoning).
 The record fails to show that the plaintiffs raised in the superior court an
issue regarding frontage. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248, 250
(2004) (noting that appellants bear the burden to demonstrate that they raised
their issues in the trial court).

As the appealing parties, the plaintiffs have the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the superior court’s well-reasoned order, the plaintiffs’ challenges to
it, the relevant law, and the record submitted on appeal, we conclude that the
plaintiffs have not demonstrated reversible error. See id.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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