David Pelletier & a. v. Town of Rye

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0441, David Pelletier & a. v. Town of
Rye, the court on April 27, 2023, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
appellants, David and Karen Pelletier, appeal an order of the Superior Court
(Honigberg, J.) upholding a decision of the Town of Rye Planning Board that
approved the site plan and special permit application of the Samonas Realty
Trust (the Developer). We affirm.

The trial court’s order recites, or the record establishes, the following
facts. In May 2018, the Developer began discussing a project proposal with the
planning board. The property is next to a tidal marsh and currently contains
ten rental cottages, a house, and a commercial building. The Developer
proposed razing the existing structures and constructing four new buildings,
each containing two townhouse units.

The Developer filed applications with the Town of Rye Zoning Board of
Adjustment (ZBA) for height and set-back variances. The ZBA granted the
variances and the appellants filed a motion for rehearing, which the ZBA
denied. The appellants then appealed the ZBA’s decision to the superior court.
The Developer moved to dismiss the appeal, arguing that the appellants lacked
standing. The Superior Court (Wageling, J.) denied the Developer’s motion,
concluding, among other things, that the visual impact of the project was a
cognizable injury sufficient to establish standing. After considering the merits
of the appeal, the superior court affirmed the ZBA decision.1

In January 2019, the Developer applied for a special use permit from the
Planning Board pursuant to section 304.6 of the Town of Rye Zoning
Ordinance. See Rye, N.H., Zoning Ordinance § 304.6(B) (2019). Section 304.6
is titled “Tourist Accommodation Uses” and its stated purpose is “to allow land
housing tourist accommodation uses which may have become economically or
functionally obsolete to be redeveloped in residential use at densities
compatible with the density of the surrounding area.” Id. § 304.6(A). Over the
1 Although the parties have not provided a copy of the court’s decision, the Developer represented
in its brief and at oral argument that, following a hearing on the merits, the court affirmed the
ZBA decision, a point which the appellants do not dispute.
next two years, the planning board held six public hearings to receive input on
the project. The trial court found that the planning board received multiple
written reports regarding “surface water, flooding, traffic management,
impervious surfaces, use and density, the existing natural wetlands, and every
other relevant aspect of the proposed development.” The appellants or their
counsel often appeared at the hearings and site-walk and submitted comments
in opposition to the project. At the request of the planning board, the
Developer ultimately reduced the number of buildings from four to three, and
the total number of units from eight to six.

At the January 2020 hearing, the planning board voted that the proposal
satisfied Town of Rye Zoning Ordinance § 304.6(H). That section directed the
board to “determine, by a vote on the record,” that the proposed redevelopment
satisfied six standards, including that “[t]he granting of the Special Use Permit
will not be detrimental to adjacent property or the neighborhood,” and that
“[t]he architecture of the proposed dwellings is compatible with the architecture
of dwellings located within 300 feet of the site.” Id. § 304.6(H)(2), (5). After
voting that the standards were met, the planning board voted to grant
conditional approval for the Developer’s special use permit, including thirty-
four conditions to be satisfied.

In February 2020, the appellants submitted a petition to the superior
court appealing the conditional approval pursuant to RSA 677:15. See RSA
677:15 (2016). The Developer intervened in the action. In their petition, the
appellants argued that conditional approval was unreasonable and unlawful
because it precluded public input and consideration of unresolved issues. The
appellants also contended that the decision was unlawful because the project
was modified such that the variances were no longer valid. And lastly, the
appellants asserted that “the Record will demonstrate that there was no
evidence” to support the planning board’s conclusion that Town of Rye Zoning
Ordinance § 304.6(H)(2) and (5) were satisfied. In September 2020, the
appellants filed a memorandum of law which reiterated these arguments.

The superior court determined that it lacked jurisdiction, stayed the
case, and remanded it to the planning board to determine whether the
conditions were satisfied. Following a compliance hearing in February 2021,
the planning board found that the conditions were met and rendered final
approval. The superior court lifted the stay and held a hearing in April 2021.
And in August 2021, the superior court affirmed the planning board’s decision
to grant final approval of the project. The appellants filed a motion for
reconsideration, which the court denied. This appeal followed.

As a preliminary matter, the Developer and the Town of Rye filed a
motion to strike portions of the appellants’ appendix that they assert contain

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material not submitted to the planning board or superior court.2 Because the
disputed materials do not affect our analysis, however, we need not address
whether they are properly part of the record.

The trial court’s review of a planning board’s decision is limited.
Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 503-04 (2018).
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. Id. at 504. 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
determines, not whether it agrees with a planning board’s findings, but rather
whether there is evidence upon which its findings could have been reasonably
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 on the evidence
before it. Id. (quotation omitted).

On appeal, the appellants first argue that the trial court’s order is
“unreasonable and illegal” because its findings “violate collateral estoppel.”
The appellants rely on the earlier decision by the Superior Court (Wageling, J.)
in the separate ZBA appeal, which found that the visual impact of the project
was a cognizable injury and that the appellants therefore had standing to
challenge the ZBA decision. They assert that this decision on standing
conclusively established that there was a “detrimental impact” in violation of
Town of Rye Zoning Ordinance § 304.6(H)(2). We disagree.

Collateral estoppel applies when, among other requirements, “the first
action resolved the issue finally on the merits.” Tyler v. Hannaford Bros., 161
N.H. 242, 246 (2010). A finding that a party has standing to appeal from a
ZBA decision, however, is not a final resolution on the merits. See City of Hope
Nat. Medical Ctr. v. Healthplus Inc., 156 F.3d 223, 228 (1st Cir. 1998) (“The
standing inquiry does not focus on the merits of the dispute. It focuses only on
‘whether the litigant is entitled to have the court decide the merits of the
dispute.’” (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975))); see also Town of
Londonderry v. Mesiti Dev., 168 N.H. 377, 381 (2015) (noting that “standing is
a question of subject matter jurisdiction”). Rather, “[s]tanding is the
determination of whether a specific person is the proper party to bring a

2 We denied the motion without prejudice to the Developer and Town making the same argument
in their brief, but the Developer and Town submitted their brief before the issuance of our order.
We note that on appeal, we consider only the “papers and exhibits filed and considered in the
proceedings in the trial court.” Sup. Ct. R. 13; Lake v. Sullivan, 145 N.H. 713, 717 (2001).

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particular matter to the Court for adjudication.” Benjamin v. Aroostook
Medical Center, Inc., 57 F.3d 101, 104 (1st Cir. 1995) (quotation omitted); see
also Hannaford Bros. Co. v. Town of Bedford, 164 N.H. 764, 770 (2013)
(“[W]hether an appealing party is a ‘proper party’ is a question ‘separate from
the merits of the appeal.’” (quoting Weeks Restaurant Corp. v. City of Dover,
119 N.H. 541, 545 (1979))). The appellants’ emphasis on the trial court’s
finding of a “cognizable injury” in its standing decision is misplaced. A
cognizable injury is not necessarily an actual, existing injury. It is the court’s
determination that the alleged injury is “[c]apable of being known or
recognized” or “capable of being judicially tried or examined before a designated
tribunal.” Black’s Law Dictionary 327 (11th ed. 2019) (defining “cognizable”).
Thus, the trial court’s finding that the “visual impact” of the project is a
cognizable injury to Karen Pelletier’s “ability to use and enjoy her property” is
merely a finding that the appellants adequately alleged an injury sufficient to
confer standing. It is not a final decision on the merits, and, therefore,
collateral estoppel does not apply.

The appellants next argue that the superior court erred in upholding the
planning board’s decision because the granting of the special use permit was
detrimental to their property, and thus violated Town of Rye Zoning Ordinance
§ 304.6(H)(2). The appellants first assert that the proposed development will
produce detrimental storm water runoff, but fail to cite anything in the record
that demonstrates such an impact. To the contrary, the record reflects that the
planning board received evidence that the project will reduce runoff compared
to current conditions on the site. The planning board received expert reports
from Altus Engineering and Sebago Technics concluding that the project will
produce less runoff than under existing conditions. Furthermore, the board
received the Developer’s application for an Alteration of Terrain permit from the
New Hampshire Department of Environmental Services (DES), which included
the Developer’s drainage calculations. DES granted that permit application.

The appellants assert that the Developer’s drainage calculations are
flawed. They allege that the existing cottages stand on stilts over gravel
foundations which permit water drainage, and, because the calculations
assume the cottages are impermeable surfaces, the calculations “thereby
significantly overstate the amount of stormwater runoff under existing
conditions.” The appellants do not, however, identify evidence in the record
which contradicts the Developer’s calculations. The only evidence that the
appellants cite is photographs of the exterior of the cottages, included as part
of the Developer’s Alteration of Terrain permit application. Absent supporting
evidence, neither the planning board nor the trial court was required to accept
this theory. The expert reports concluding runoff would be reduced support
the planning board’s determination, and given this record support, the trial
court did not err by upholding that determination.

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 The appellants further assert that the visual impact of the project will be
detrimental to their ocean views. The planning board, however, received
evidence that the project would not negatively impact the appellants’ views of
the ocean. The Developer submitted a report from Altus Engineering which
concluded that the appellants’ views would not be adversely impacted. That
report included photographs of the appellants’ sightline, which show the
negligible impact of the development relative to existing obstructions like
foliage and other buildings. The appellants provided no evidence that
demonstrates a material visual impact detriment. Accordingly, there was
sufficient evidence in the record for the trial court to uphold the planning
board’s finding that runoff and visual impact would not be detrimental to
neighboring properties.

The appellants next argue that the granting of the special use permit
violated Town of Rye Zoning Ordinance § 304.6(H)(5) because the project’s
architecture is not compatible with the architecture of nearby properties. They
assert there is “no basis for the Planning Board’s conclusion that the project
was architecturally consistent.” The record contradicts this assertion. At the
April 2019 hearing, the project architect presented a slideshow with photos of
surrounding buildings along with images of the proposed design, and told the
planning board that “the project was developed with a strong focus on
. . . the character of the community.” The appellants argue that the
development is “simply too big” and “not compatible with the scope of similar
properties,” but cite nothing in the record that shows relative incompatibility.
Because the planning board considered the architecture of the development
and received evidence that the project was designed to match the character of
the community, the trial court had sufficient evidence to uphold the planning
board’s decision.

Next, the appellants argue that the “Planning Board unreasonably
approved the Intervenor’s site plan based on the provisions of Rye Zoning
Ordinance § 304.6[D].” That section of the ordinance states that the “planning
board may require lower densities if necessary to make a proposed
redevelopment compatible with its environs based on consideration of such
factors such as wetlands . . . septic capability . . . or other characteristics of the
site which affect sound land planning.” Rye, N.H., Zoning Ordinance §
304.6(D) (emphasis added). The appellants assert that “there is no justification
for the Planning Board simply approving a project at maximal septic density
that creates substantial developmental impacts on the delicate ecology of the
wetland.” This challenge is belied by the record and, particularly in light of the
reduction from the original eight units to six units, we conclude that the trial
court properly determined that the board did not act unreasonably or
unlawfully.

Finally, the appellants argue that the planning board’s site plan approval
was unlawful because the Developer’s variances were invalid. The variances at

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issue were conditioned on “Planning Board approval of the proposed project
without plan modifications affecting these variances.” The final plan approved
by the planning board differed from the plan approved by the ZBA, and the
appellants assert that the changes “clearly invalidated the prior zoning relief.”
However, the appellants failed to explain to the superior court how the changes
affect the variances, and they have failed to do so on appeal. After reviewing
the final plan, the Rye Building Inspector concluded that the revised plan still
complied with the existing variances. Moreover, a member of the planning
board expressly asked the appellants’ counsel if the variances had been
violated with the changes, and counsel answered “no.”

Based upon our review of the record, we conclude that the superior
court’s decision is neither unsupported by the record nor legally erroneous,
and that the court did not err when it determined that the appellants failed to
carry their burden to demonstrate that the planning board’s decision to grant
final approval to the Developer was unreasonable. See Trustees of Dartmouth
Coll., 171 N.H. at 504.

Affirmed.

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

Timothy A. Gudas,
Clerk

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