Richard Anthony & a. v. Town of Plaistow

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2021-0410

RICHARD ANTHONY & a.

v.

TOWN OF PLAISTOW

Argued: February 23, 2023
Opinion Issued: May 16, 2023

Law Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd on the brief
and orally), for the plaintiffs.

Wadleigh, Starr & Peters, PLLC, of Manchester (Charles F. Cleary and
William P. Reddington on the brief, and Charles F. Cleary orally), for the
defendant.

Sulloway & Hollis, P.L.L.C., of Concord (Derek D. Lick on the brief and
orally), for the intervenor.

DONOVAN, J. The plaintiffs, Richard and Sanaz Anthony, appeal from
an order of the Superior Court (Wageling, J.) affirming a decision of the Town of
Plaistow’s (Town) Planning Board granting site plan approval for the
development and consolidation of two lots by the intervenor, Milton Real
Properties of Massachusetts, LLC. On appeal, the plaintiffs argue that the
superior court erred by: (1) ruling that it lacked subject matter jurisdiction to
address the plaintiffs’ argument that the proposed use was not permitted in the
zoning district; (2) finding that the planning board made a sufficient regional
impact determination pursuant to RSA 36:56 (2019); and (3) ruling that the
planning board’s decision granting site plan approval was otherwise lawful and
reasonable. We conclude that the superior court did not err in dismissing the
plaintiffs’ zoning argument, in concluding that the planning board acted
reasonably when it implicitly found that the project would not have a regional
impact, and in finding that the planning board’s decision was otherwise lawful
and reasonable. Accordingly, we affirm.

I. Facts

We begin by noting that this appeal is part of a long-litigated dispute
between the plaintiffs and the Town regarding the intervenor’s proposed
development of property abutting the plaintiffs’ home. The plaintiffs have
previously appealed the planning board’s decisions related to this project to the
superior court on three separate occasions. The plaintiffs, however, appealed
only one of those superior court rulings to this court, which is the subject of
this appeal.

A. The Planning Board’s Review of the Intervenor’s Application

The following facts are recited in the trial court’s order or are derived
from the contents of documents in the record. In January 2019, the intervenor
applied to the planning board for permission to consolidate two adjacent lots in
the Town’s commercial zoning district and build a construction equipment
rental and maintenance facility, a wash building, and an equipment display
and storage area. The plaintiffs reside on property abutting the intervenor’s
property. On February 6, 2019, a Town code enforcement officer issued a
written decision (hereinafter, “zoning determination”) that the proposed use
involved equipment rental and constituted a permissible retail use in the
commercial zoning district. Although abutters, including the plaintiffs,
expressed their disagreement with this zoning determination to the planning
board, the plaintiffs never directly appealed the code enforcement officer’s
determination.

The planning board’s review of the application continued through June
2019. The planning board retained an engineering firm, Keach-Nordstrom
Associates (KNA), to review the proposal and offer recommendations. Between
March and June, KNA provided the planning board with four separate peer
reviews of the intervenor’s proposed site plan. The intervenor responded to the
peer reviews and adjusted its site plan accordingly. Additionally, the planning

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board held four public hearings and conducted a site walk. At each hearing,
members of the public had the opportunity to express their concerns with the
proposal, and the intervenor responded to concerns from the planning board,
KNA, and abutters. The Town Conservation Commission also held three
meetings on the site plan, reviewed the application, and reported its concerns
to the planning board.

B. Plaintiffs’ First Appeal to Superior Court from the Planning Board’s
Conditional Decision

At the public hearing in June 2019, the planning board conditionally
approved the intervenor’s site plan application. None of the conditions upon
which this approval was premised implicated the code enforcement officer’s
zoning determination that the proposed use is permitted under the zoning
ordinance. Thus, by conditionally approving the project, the planning board
adopted the code enforcement officer’s zoning determination.

The plaintiffs appealed the planning board’s decision directly to the
superior court, arguing, in part, that the decision violated the Town’s zoning
ordinance. In May 2020, the Superior Court (Schulman, J.) concluded that the
planning board’s decision on the site plan was conditional, and, therefore, the
court lacked jurisdiction over the appeal. The court then remanded the matter
to the planning board without addressing the merits of the appeal. The court
later clarified its order and explained that it lacked jurisdiction to adjudicate
the zoning issue until the Town’s Zoning Board of Adjustment (ZBA) rendered a
decision. There is no indication in the record that the plaintiffs appealed this
decision.

C. Plaintiffs’ Appeal to Superior Court from the ZBA

In June 2020, the planning board issued a final decision approving the
intervenor’s site plan application. The following month, the plaintiffs brought
two separate appeals challenging this decision: one to the ZBA and one to the
superior court. First, the plaintiffs appealed to the ZBA challenging the merits
of the planning board’s determination that the project was a permitted use in
the zoning district. The ZBA dismissed the appeal for lack of jurisdiction
because it was untimely. After the plaintiffs’ motion for rehearing was denied,
they appealed the ZBA’s decision to the superior court, and the Town moved to
dismiss. In March 2021, the Superior Court (Wageling, J.) granted the motion
and dismissed the appeal. The court concluded that the plaintiffs’ appeal to
the ZBA was untimely, and, therefore, both the ZBA and the court lacked
subject matter jurisdiction. The plaintiffs moved for reconsideration, which the
court denied on April 12, 2021. The town and the intervenor contend, and the
plaintiffs do not dispute, that the plaintiffs did not appeal the court’s decision,
which became a final judgment in May 2021. See Super. Ct. R. 46(d).

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 D. Plaintiffs’ Appeal to Superior Court from the Planning Board’s
Final Decision

As noted above, concurrent with the ZBA appeal, the plaintiffs appealed
the planning board’s final approval of the site plan to the superior court. The
plaintiffs argued, inter alia, that the planning board’s decision violated the
zoning ordinance, failed to make a regional impact determination pursuant to
RSA 36:56, and was otherwise unreasonable with respect to protections for
abutting residential properties. In July 2021, the Superior Court (Wageling, J.)
affirmed the planning board’s decision. As to the plaintiffs’ renewed claim that
the site plan approval violated the zoning ordinance, the court found that it
lacked subject matter jurisdiction to review the issue. The court relied upon its
March 2021 ruling that the plaintiffs’ appeal to the ZBA was untimely and thus
the plaintiffs did not “exhaust their administrative remedies with the ZBA” to
vest the superior court with subject matter jurisdiction. Further, the court
concluded that the planning board “implicitly found that there was no potential
for regional impact” and, in doing so, complied with RSA 36:56. Finally, the
court found that the planning board reasonably “considered [the] abutters’
concerns and interests, and that those concerns were incorporated into the
final site plan.” The plaintiffs moved for reconsideration, which the court
denied. This appeal followed.

II. Analysis

A. Jurisdictional Challenges

We begin by addressing the plaintiffs’ argument that the superior court
erred in not addressing the zoning issue based on a lack of jurisdiction and
their assertion that the issue was properly before the court pursuant to RSA
677:15, I-a (2016). Resolving this issue requires the consideration of two
related statutory provisions: RSA 677:15 governing appeals from a planning
board to the superior court, and RSA 676:5 (2016) governing appeals to a
zoning board of adjustment. RSA 677:15, I, provides, in pertinent part:

Any persons aggrieved by any decision of the planning board concerning
a plat or subdivision may present to the superior court a petition, duly
verified, setting forth that such decision is illegal or unreasonable in
whole or in part and specifying the grounds upon which the same is
claimed to be illegal or unreasonable. Such petition shall be presented to
the court within 30 days after the date upon which the board voted to
approve or disapprove the application . . . . This paragraph shall not
apply to planning board decisions appealable to the board of adjustment
pursuant to RSA 676:5, III.
In turn, RSA 676:5, III sets forth procedures for appeals to a board of
adjustment. It provides, in pertinent part:

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 If, in the exercise of subdivision or site plan review, the planning board
makes any decision or determination which is based upon the terms of
the zoning ordinance, or upon any construction, interpretation, or
application of the zoning ordinance, which would be appealable to the
board of adjustment if it had been made by the administrative officer,
then such decision may be appealed to the board of adjustment under
this section . . . .

“Read together, RSA 677:15, I, and RSA 676:5, III establish two separate
avenues of appeal from a decision of the planning board, depending upon the
nature of the claim.” Atwater v. Town of Plainfield, 160 N.H. 503, 508 (2010).
A party may appeal planning board decisions “concerning a plat or subdivision”
directly to the superior court pursuant to RSA 677:15, I. RSA 677:15, I; see
also Atwater, 160 N.H. at 509. When the planning board makes a decision,
however, “based upon the terms of the zoning ordinance, or upon any
construction, interpretation, or application of the zoning ordinance,” a party
must first appeal that decision to the zoning board of adjustment pursuant to
RSA 676:5. RSA 676:5, III; see also RSA 677:15, I-a(a); Atwater, 160 N.H. at
509. “Only after the board of adjustment has rendered a decision may the
issue be appealed to the superior court pursuant to RSA 677:4.” Atwater, 160
N.H. at 509. The effect is that “[w]hen a party is aggrieved by a planning board
decision that interprets both planning regulations and zoning ordinances and
wishes to appeal issues involving both, the party is obligated to file separate
appeals with the superior court and the zoning board of adjustment.” Route 12
Books & Video v. Town of Troy, 149 N.H. 569, 576 (2003); see Hoffman v. Town
of Gilford, 147 N.H. 85, 88-89 (2001).

Here, the plaintiffs adhered to this bifurcated approach following the
planning board’s final decision in June 2020 approving the intervenor’s site
plan application. First, they appealed to the ZBA, challenging the site’s zoning
status as a permissible retail use in the commercial zoning district. See RSA
676:5, I, III. The ZBA, however, did not reach the merits of the zoning issue
and dismissed the appeal for lack of jurisdiction because it was untimely. The
plaintiffs then appealed from the ZBA to the superior court. See RSA 677:4;
see also RSA 677:15, I-a(a). In a March 2021 order, the court affirmed the
ZBA’s decision and concluded that the court also lacked jurisdiction to hear
the appeal because the plaintiffs did not exhaust their administrative remedies
by timely filing their appeal to the ZBA. See RSA 676:5, I, III; Atwater, 160
N.H. at 508-10 (explaining that the timing requirement under RSA 676:5 to
appeal a planning board’s decision to the ZBA begins when the decision is final
as it pertains to the zoning issue). Although the plaintiffs could have
challenged the jurisdictional determinations of the ZBA and the superior court
in an appeal to this court, they elected not to do so. The superior court’s order,
therefore, became final in May 2021. See Sup. Ct. R. 7(1)(A), (C); Super. Ct. R.
46(d). Concurrent with the appeal to the ZBA, the plaintiffs also appealed the

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planning board’s final decision directly to the superior court, which the
superior court upheld in its July 2021 order. See RSA 677:15, I.

The appeal now before this court challenges the superior court’s July
2021 order upholding the planning board’s final decision to approve the
intervenor’s site plan application. See RSA 677:15, I. The superior court’s
March 2021 order, which is not on appeal to this court, pertains to the
planning board’s decision that the intervenor’s proposed use complies with the
zoning ordinance. See RSA 676:5, III. Although both orders concern the
planning board’s final decision in June 2020, they pertain to different
components of the decision and are separate and distinct from each other.

Accordingly, to the extent that the plaintiffs now ask us to review the
trial court’s March 2021 affirmance of the ZBA’s decision that it lacked
jurisdiction to consider the zoning issue on the merits and the court’s
conclusion that it lacked jurisdiction to hear the appeal, the issue is not
properly before us. An order becomes a final judgment and all appeals are
waived when “a timely filed motion has been filed after verdict or decree, on the
31st day from the date on the court’s written notice that the court has taken
action on the motion.” Super. Ct. R. 46(d)(2); see also Sup. Ct. R. 7(1)(A), (C).
Because the plaintiffs did not appeal that order to this court, it became final in
May 2021 and all appeals are deemed waived.1 See Sup. Ct. R. 7(1)(A), (C);
Super. Ct. R. 46(d).

The plaintiffs nonetheless argue that RSA 677:15, I-a(b) grants them the
right to raise their zoning arguments for superior court review in their direct
appeal from the planning board’s June 2020 final decision. RSA 677:15, I-a(b)
provides that if, on appeal to the superior court from a planning board
decision, either the court or the parties recognize that “any matters contained
in the appeal should have been appealed to the board of adjustment under RSA
676:5, III, the court shall issue an order to that effect, and shall stay
proceedings on any remaining matters until final resolution of all matters
before the board of adjustment.” The aggrieved party has thirty days to present
the issue to the board of adjustment under RSA 676:5, III. RSA 677:15, I-a(b).
RSA 677:15, I-a(b) further provides that “[e]xcept as provided in this
paragraph, no matter contained in the appeal shall be dismissed on the basis
that it should have been appealed to the board of adjustment under RSA
676:5, III.” Relying on this language, the plaintiffs argue that if the Town and
the intervenor “felt that appeal to the [ZBA] was necessary, they legally had
every right to request it [in prior proceedings],but elected not to exercise that

1 The plaintiffs raise several other arguments as to why the superior court erred in not reaching

the merits of the zoning issue. Although those arguments could have been raised in an appeal to
this court from the superior court’s March 2021 order, the plaintiffs did not appeal that decision.
Accordingly, because the issue is not properly before us, we are not in a position to consider the
ZBA’s actions.

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right. On the other hand, if neither the court nor the parties raise the issue in
a timely manner, RSA 677:15, I-a(b) compels the superior court to act on
appeal.” Therefore, argue the plaintiffs, the superior court “erred in violation of
RSA 677:15, I-a(b) by not addressing the zoning argument” that they properly
raised. We disagree.

RSA 677:15, I-a(b) provides parties with the opportunity to exhaust their
administrative remedies on a zoning issue if the parties have not already
sought ZBA review. Here, the plaintiffs attempted to exhaust their
administrative remedies when they appealed the planning board’s June 2020
decision to the ZBA pursuant to RSA 676:5, III, but the ZBA dismissed the
appeal for lack of jurisdiction. Therefore, RSA 677:15, I-a(b) does not apply to
the circumstances at issue in this appeal because the plaintiffs already sought
ZBA review of the planning board’s June 2020 decision. Moreover, if the
superior court had considered the zoning issue on the merits, it would have
improperly permitted the plaintiffs a second appeal of the ZBA’s determination.

B. Regional Impact Determination Claims

The plaintiffs’ second argument challenges the superior court’s
conclusions that the planning board made a regional impact determination
pursuant to RSA 36:56. RSA 677:15 (2016) governs a trial court’s review of a
planning board’s decision. The trial court “may reverse or affirm, wholly or
partly, or may modify the decision brought up for review when there is an error
of law or when the court is persuaded by the balance of probabilities, on the
evidence before it, that [the board’s] decision is unreasonable.” RSA 677:15, V.
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 v. Town of Plymouth,
172 N.H. 576, 581 (2019). The appealing party bears the burden of persuading
the trial court that, by the balance of probabilities, the board’s decision was
unreasonable. Id. The trial court’s review is limited; it does not determine
whether it agrees with the planning board’s findings, but whether there is
evidence upon which its findings could have reasonably been based. Id.

Our review is similarly limited. We will reverse a trial court’s decision on
appeal only if it is not supported by the evidence or is legally erroneous. Id.
We review the trial court’s decision to determine whether a reasonable person
could have reached the same decision as the trial court based upon the
evidence before it. Id. at 582.

The plaintiffs argue that the planning board’s decision is void “ab initio”
because the board did not comply with statutory notice provisions when it
“failed to make a determination of regional impact regarding the application
required under RSA 36:56.” We disagree. As a threshold matter, the Town and
the intervenor contend that the plaintiffs failed to adequately preserve this

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argument. For the purposes of this appeal, we will assume that the plaintiffs
have preserved this argument for our review. On the merits, we conclude that
the planning board adequately considered the potential for regional impact.

A “development of regional impact” is defined as “any proposal before a
local land use board which in the determination of such local land use board
could reasonably be expected to impact on a neighboring municipality” due to
numerous enumerated factors. RSA 36:55 (2019). A local land use board
must promptly review applications for development and “determine whether or
not the development, if approved, reasonably could be construed as having the
potential for regional impact.” RSA 36:56, I.

Here, the superior court concluded that the planning board considered
and implicitly found that the project did not have a potential for regional
impact. The court noted that at the June 2019 public hearing, the Town’s
Planning Director discussed regional impact issues and testified that in his
sixteen years of experience, he had never worked on a commercial development
that had caused any regional impact and that the traffic impact from the
intervenor’s proposal was “nominal.” Further, the superior court explained
that the planning board was aware that the project would not impact ground or
surface water, that the site was located in the center of the town, and that the
project would minimally affect traffic in the area. Based upon this evidence in
the record, we agree with the superior court’s conclusion that “[w]hen it
approved [the intervenor’s] proposal, the Planning Board implicitly found that
there was no potential for regional impact,” see RSA 36:56, I, and that this
decision was neither unreasonable nor legally erroneous. Cf. Prop. Portfolio
Group v. Town of Derry, 163 N.H. 754, 758-59 (2012) (holding that the
planning board was not required to make specific findings of fact prior to
granting a waiver from the town’s site plan regulations). Because we conclude
that the planning board reasonably determined that the site plan had no
potential for regional impact, the planning board did not, contrary to the
plaintiffs’ argument, fail to comply with statutory notice requirements. See
RSA 36:57 (requiring a local land use board, “[u]pon determination that a
proposed development has a potential regional impact,” to provide notice to
affected municipalities and the regional planning commission).

C. Claims that the Decision was Unlawful and Unreasonable

Finally, the plaintiffs argue that the superior court erred in affirming the
planning board’s decision because it was otherwise unlawful or unreasonable.
Specifically, the plaintiffs claim that: (1) the location of an industrial use next
to a residential neighborhood is per se unreasonable; (2) there are insufficient
visual buffers between the equipment and the residents; (3) the industrial
washing facility will impact the aquifer, wetlands, and ground and surface
water; (4) the groundwater monitoring system does not address or resolve

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potential contamination issues; and (5) the project threatens the abutters’ quiet
enjoyment of their properties. We disagree.

The superior court thoroughly considered the entire record submitted on
appeal. In reaching its decision, the court recognized that the planning board
subjected the intervenor’s application to “a rigorous site plan review process,”
including numerous public hearings and a site visit, multiple technical reviews
by KNA, the Town’s outside consultant, and consultation with the Town’s
Conservation Commission. Moreover, the court observed that “[a]t each stage
of the process, [the] abutters’ concerns about water quality, wetlands
preservation, pollution, noise, and buffering were addressed by [the intervenor]
and/or the Planning Board.” Consequently, the superior court concluded that
“the record reflects that the Planning Board adequately considered [the]
abutters’ concerns and interests.” Based on our review of the superior court’s
order and the record, we conclude that the superior court did not err in finding
that the planning board acted reasonably and lawfully in approving the
intervenor’s site plan application.

III. Conclusion

For the foregoing reasons, we conclude that the superior court did not
err in declining to consider the merits of the zoning issue and in affirming the
planning board’s decision to approve the intervenor’s site plan application.
Accordingly, we affirm.

Affirmed.

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

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