Harvey v. Town of Barrington

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
Case No. 2021-0601
Citation: Harvey v. Town of Barrington, 2024 N.H. 10

CANDICE K. HARVEY

v.

TOWN OF BARRINGTON

Argued: January 25, 2023
Opinion Issued: February 27, 2024

Casassa Law Office, of Hampton (Daniel R. Hartley on the brief and orally),
for the plaintiff.

Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan), for the
defendant, filed no brief.

Wyskiel, Boc, Tillinghast & Bolduc, PA, of Dover (Christopher A. Wyskiel and
Laurie S. Young on the brief), for the intervenor.1

1 After the intervenor filed its brief in this court, we granted a motion to substitute David and Glenda

Henderson for Garvey & Company, Ltd. In addition, Wyskiel and Young, counsel for Garvey &
Company Ltd., were withdrawn as attorneys in this appeal. See Order dated December 27, 2022.
 David R. Henderson and Glenda J. Henderson, self-represented substitute
intervenors, filed no brief.

HANTZ MARCONI, J.

¶1 The plaintiff, Candice K. Harvey, challenges the order of the Superior
Court (Howard, J.) affirming the Town of Barrington Planning Board’s (Board)
approval of a subdivision on a lot abutting her property. We reverse and remand.

I

¶2 We draw the following facts from the trial court’s order or the record on
appeal. In 2006, the Board approved a subdivision plan (the 2006 plan) for a lot in
Barrington owned by David and Glenda Henderson. The subdivision created lot 1-0
(the front lot), which the plaintiff acquired, and lot 1-1 (the back lot), which the
Hendersons retained. Before the Board approved the subdivision, the Barrington
Zoning Board of Adjustment (ZBA) granted a special exception “allowing access to
Lot 1-1 [the back lot] via an access and utility easement across Lot 1-0 [the front
lot].” Although the back lot has its own road frontage, it relies on the easement for
access because the frontage is wetlands. The 2006 plan shows the back lot’s
frontage to the west of the front lot along a narrow neck, and shows a utility and
access easement across the east side of the front lot. The plaintiff’s deed to the
front lot states that it is “[s]ubject to a forty foot (40′) wide access and utility
easement to benefit Lot 1-1 as shown on the” 2006 plan. Note 12 to the 2006 plan
states:

The 40′ Wide Access & Utility Easement across Lot 1-0 to
benefit Lot 1-1 is to be used for a single lot and one
buildable location on Lot 1-1 only. When and if a road on
the frontage of Lot 1-1 is ever constructed the access
easement across Lot 1-0 will be eliminated and access to
Lot 1-1 would be via the new road.

The easement was created to access the back lot while avoiding the wetlands.

¶3 In 2021, the Hendersons sought a variance from the ZBA that would
allow the back lot to be used for two additional lots. The ZBA approved a variance
that allowed one additional lot. The plaintiff did not appeal the decision of the ZBA.

¶4 Following ZBA approval, the intervenor, Garvey & Company, Ltd., on
behalf of the Hendersons, applied to the Board for approval to subdivide the back
lot into two residential lots. The proposed access to the two lots was via the
easement over the front lot. At a public hearing before the Board, the plaintiff
protested that the easement would be used for accessing two lots instead of one.

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By a 5-2 vote, the Board conditionally approved the intervenor’s application.

¶5 The plaintiff appealed to the superior court requesting a reversal of the
Board’s approval of the subdivision. Following a hearing, the trial court affirmed
the Board’s decision, citing the ZBA’s and the Board’s respective authority to
approve variances and amend subdivision plans under New Hampshire law. In
affirming, the trial court also concluded that “the ZBA considered all evidence
presented at the public hearing and did not find that the increased use of the
access and utility easement constituted overburdening.”

¶6 This appeal followed.

II

¶7 The trial court’s review of planning board decisions is limited as the trial
court must uphold a planning board’s decision unless “there is an error of law or
when the court is persuaded by the balance of probabilities, on the evidence before
it, that said decision is unreasonable.” RSA 677:15, V (2016). The trial court must
treat 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. Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 504 (2018).
The trial court determines, not whether it agrees with the findings of the planning
board, but whether there is evidence upon which those findings could have been
reasonably based. Id.

¶8 Our review of the trial court’s decision arising from a decision of a
planning board is similarly limited. Girard v. Town of Plymouth, 172 N.H. 576, 581
(2019). We will reverse the trial court’s decision only if it is not supported by the
evidence or is legally erroneous. Id. Our inquiry is whether a reasonable person
could have reached the same decision as the trial court based on the evidence
before it. Id. at 582.

¶9 The plaintiff argues that the trial court erred by upholding the Board’s
decision to approve a second lot in reliance on the deeded easement, which, she
argues, restricts access to only one lot. She also argues that the ZBA lacked the
authority to modify the easement by modifying the restrictions in the 2006 plan,
which were incorporated into her deed. We agree with the plaintiff and conclude
that the trial court erred because the easement provides access to only one lot.

¶10 Under RSA 674:41, a local planning board may not approve a
subdivision application unless the subdivision meets certain access requirements.
See RSA 674:41 (2016). RSA 674:41 states 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 one of
several conditions. RSA 674:41, I; see also Turco v. Town of Barnstead, 136 N.H.
256, 265 (1992) (“This court has held that the statute applies with equal force to

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building permits and subdivision permits.”). The statute lists several types of
streets that can satisfy the access requirement, including “private road[s].” RSA
674:41, I(a)-(e). Here, the access is proposed via the private easement over the front
lot. See RSA 674:41, I(d).

¶11 We begin by interpreting the easement language in the plaintiff’s deed.
The proper interpretation of a deed is a question of law. Lynn v. Wentworth By The
Sea Master Ass’n, 169 N.H. 77, 84 (2016). We therefore review the trial court’s
interpretation of a deed de novo. Id. When interpreting a deed, we give it the
meaning intended by the parties at the time they wrote it, taking into account the
surrounding circumstances at that time. Id. If the language of the deed is clear
and unambiguous, we will interpret the intended meaning from the deed itself
without resort to extrinsic evidence. Id. If, however, the language of the deed is
ambiguous, extrinsic evidence of the parties’ intentions and the circumstances
surrounding the conveyance may be used to clarify its terms. Id.

¶12 An easement may be created by “a written conveyance and a plan
together.” Soukup v. Brooks, 159 N.H. 9, 14 (2009). A deed constitutes a written
conveyance when it “expressly conveys an easement.” Id. at 14, 17. Here, the
recorded deed from the Hendersons to the plaintiff expressly retained “a forty foot
(40′) wide access and utility easement to benefit Lot 1-1 as shown on the [2006
plan].” Through this reference, the 2006 plan became part of the recorded deed.
See 14 Michael Allan Wolf, Powell on Real Property § 81A.05(3)(g), at 81A-103
(2023) (“When a deed clearly indicates that the description in a plat is to be
incorporated by reference, the plat itself, as well as all of its words, marks, and
drawings, become as much a part of the deed as if they had been written out at
length therein.” (emphasis added)); see also Duchesnaye v. Silva, 118 N.H. 728, 732
(1978). Accordingly, the 2006 plan and the recorded deed, together, created the
easement here.

¶13 Note 12 of the 2006 plan states that the easement “is to be used for a
single lot and one buildable location on Lot 1-1 only.” While we agree with the trial
court that conditions imposed on a subdivision plan may be later modified, we
interpret the language of the deed as it existed at the time the easement was
created. See Lynn, 169 N.H. at 84; Dumont v. Town of Wolfeboro, 137 N.H. 1, 5
(1993) (“Defining the rights of the parties to an expressly deeded easement requires
determining the parties’ intent in light of circumstances at the time the easement
was granted.” (emphasis added)). Note 12 of the 2006 plan clarifies that when the
easement was created, the parties intended that the easement “be used for a single
lot.” Once an easement is created, neither the Board nor the ZBA can change its
terms as they might change a subdivision plan. Cf. Arcidi v. Town of Rye, 150 N.H.
694, 703-04 (2004) (determining that the language of an easement deed prohibited
the town from using the easement beyond its original intent). Accordingly, the trial
court erred when it concluded that note 12 of the 2006 plan no longer restricted the
use of the easement to one lot.

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 [¶14] Given this limitation on the access easement, the Board’s decision to
conditionally approve the subdivision contradicts the requirements of RSA 674:41.
The statute requires that the lot have access to a street. RSA 674:41, I. Currently,
there is no access for two lots over this easement as it is limited to “a single lot and
one buildable location.” Thus, the Board was precluded from approving the new
plan absent legal access to the back lot consistent with RSA 674:41. See Turco,
136 N.H. at 265.

¶15 The intervenor argues that under Feins v. Town of Wilmot, “the intent of
an original subdivision has no bearing on a future decision to re-subdivide.” In
Feins, we determined that a purported inconsistency with the original intent is not
a proper basis for a Board to deny an application for re-subdivision. Feins v. Town
of Wilmot, 154 N.H. 715, 719 (2007). The issue in Feins, however, differs from the
issue here. Here, the issue concerns the effect of an easement restriction on an
application to subdivide. Whereas, in Feins, the issue was simply the modification
of a prior subdivision. See id. at 717-18. Because the issues differ, Feins offers
little guidance.

¶16 Finally, we address the intervenor’s argument that the trial court’s
interpretation comports with the rule of reason as stated in Sakansky v. Wein. See
Sakansky v. Wein, 86 N.H. 337, 339-40 (1933). The rule of reason requires the
court to “give a meaning to words which the parties or their predecessors in title
have actually used . . . or else to give a detailed definition to rights created by
general words either actually used or, whose existence is implied by law.” Id. at
339. However, when the words of a deed are clear and their meaning
unambiguous, we need not rely on the rule of reason. Heartz v. City of Concord,
148 N.H. 325, 331 (2002). The intervenor argues that the rule of reason applies
because the words “[s]ubject to” in the plaintiff’s deed are “general in nature,” and
can be interpreted consistently with the ZBA’s and Board’s “reasonable approvals.”
We disagree. The language “[s]ubject to a forty foot (40′) wide access and utility
easement to benefit Lot 1-1 as shown on the above-referenced plan” is specific.
This language states that the deed is subject to an access easement, and that the
details of the easement are provided on the 2006 plan. That plan limits the use of
the easement to “a single lot.” Thus, the rule of reason is inapplicable. See id.

¶17 We reverse the decision of the trial court and remand with instructions
to vacate the Board’s approval of the subdivision application.

Reversed and remanded.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred; HICKS,
J., sat for oral argument but did not participate in the final vote, see N.H. CONST.
pt. II, art. 78.

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