Appeal of James A. Beal & a.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as
well as formal revision before publication in the New Hampshire Reports.
Readers are requested to notify the Reporter, Supreme Court of New
Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any
editorial errors in order that corrections may be made before the opinion goes
to press. Errors may be reported by email at the following address:
reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00
a.m. on the morning of their release. The direct address of the court’s home
page is: https://www.courts.nh.gov/our-courts/supreme-court

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Housing Appeals Board
No. 2022-0182

APPEAL OF JAMES A. BEAL & a.
(New Hampshire Housing Appeals Board)

Argued: March 21, 2023
Opinion Issued: October 12, 2023

Duncan J. MacCallum, of Portsmouth, on the brief and orally, for the
petitioners.

Sheehan Phinney Bass & Green, P.A., of Manchester (Michael D.
Ramsdell and Brian J. Bouchard on the brief, and Brian J. Bouchard orally),
for the respondent.

Trevor P. McCourt, of Portsmouth, for the City of Portsmouth, filed no
brief.

HICKS, J. The petitioners, James A. Beal, Mary Beth Brady, Mark
Brighton, Lenore Weiss Bronson, Nancy Brown, William R. Castle, Lawrence J.
Cataldo, Ramona Charland, Lucinda Clarke, Fintan Connell, Marjorie P. Crean,
Ilara Donarum, Joseph R. Famularo, Jr., Philippe Favet, Charlotte Gindele,
Julia Gindele, Linda Griebsch, Catherine L. Harris, Roy W. Helsel, John E.
Howard, Nancy B. Howard, Elizabeth Jefferson, Cate Jones, Robert McElwain,
Mary Lou McElwain, Edward Rice, April Weeks, Michael Wierbonics, and Lili
Wierbonics, appeal an order of the Housing Appeals Board (HAB) reversing a
decision of the Portsmouth Zoning Board of Adjustment (ZBA), which, in turn,
had reversed certain approvals granted by the Portsmouth Planning Board
(Planning Board) to the respondent, Iron Horse Properties, LLC (Iron Horse).
We affirm.

The following facts either were stated in the HAB’s order or relate the
contents of documents in the certified record before us. Iron Horse owns real
property located at 105 Bartlett Street in Portsmouth. In 2021, it requested
various approvals from the Planning Board in connection with its proposed
redevelopment of the site. Iron Horse proposed to construct three multi-family
apartment buildings with a total of 152 dwelling units. The application to the
Planning Board explained that the “site has [a] history of railroad and
industrial use” and that remaining “derelict railroad structures . . . pose a
safety hazard.” It further stated that nearly the entirety of the 100-foot tidal
wetland buffer had been previously disturbed and was “overgrown with
invasive species,” and that a portion of the site had “fallen into disrepair
. . . [and] has long been an attractive nuisance with a history of debris,
homeless encampments, and crime.”

Iron Horse proposed to provide stormwater treatment, which currently
does not exist at the site, and to remove invasive species from the 100-foot
wetland buffer and replant with a majority of native plants. Portions of the
proposed buildings would encroach on the wetland buffer, but the application
stated that the project would constitute an “overall improvement” to the
wetland buffer by moving buildings and parking further away from North Mill
Pond than is the case in the site’s current condition and by “reducing overall
impervious surface.” The application further observed that:

The proposed development area has unique site conditions that
include close proximity to the North Mill Pond; no build view
corridors required by zoning that extend from perpendicular City
streets located across the railroad; 15-foot side yard setback due to
the adjacent railroad where none is typically required in the CD-
4W district; and a 25-foot municipal sewer easement for a large
sewer pipe that conveys wastewater flow for the City’s west end to
the Deer Street pump station. These unique conditions put
constraints on the applicant’s ability to locate buildings within the
developable upland area.

Iron Horse sought a site review permit, lot line revision permit,
conditional use permit (CUP) for shared parking, and a wetland CUP. The
Planning Board granted the approvals on April 15, 2021, and the petitioners,
who describe themselves as “a group of abutters and other concerned citizens,”
then filed an appeal with the ZBA, raising nine claims of error. The ZBA
granted the appeal, effectively reversing the Planning Board’s site plan and

2
CUP approvals. Following denial of its motion for rehearing, Iron Horse then
appealed the ZBA’s decision to the HAB. The HAB reversed the ZBA’s findings
as to six of the petitioners’ claims and dismissed the remaining three claims.

The petitioners now appeal to this court, raising a number of issues that
can generally be consolidated under the following overarching questions: (1)
whether Iron Horse’s proposed project met the six criteria for a wetland CUP
set forth in section 10.1017.50 of the Portsmouth Zoning Ordinance; and (2)
whether Iron Horse’s permit requests were barred under the doctrine of Fisher
v. City of Dover, 120 N.H. 187 (1980).

“Our review of the HAB’s decision is governed by RSA chapter 541.”
Appeal of Town of Amherst, 175 N.H. 575, 577 (2023) (quotation omitted); see
RSA 679:15 (Supp. 2022). Accordingly, we will not set aside the HAB’s order
“except for errors of law, unless [we are] satisfied, by a clear preponderance of
the evidence before [us], that such order is unjust or unreasonable.” RSA
541:13 (2021).

For its part, the HAB, in its review, must treat the factual findings of the
“zoning board of adjustment or the local legislative body . . . [as] prima facie
lawful and reasonable.” RSA 677:6 (2016); see also RSA 679:9, I (Supp. 2022).
The HAB “shall not reverse or modify a decision except for errors of law or if the
board is persuaded by the balance of probabilities, on the evidence before it,
that said decision is unreasonable.” RSA 679:9, II (Supp. 2022).

We note that before the ZBA, the parties disputed whether the ZBA had
jurisdiction over the petitioners’ challenges to the issuance of the wetland and
shared parking CUPs. When the case reached the HAB, the parties continued
to disagree about that issue, but nevertheless agreed that the HAB should hear
the appeal of all claims, even those over which Iron Horse claimed the ZBA had
lacked jurisdiction. Accordingly, the HAB, which had jurisdiction over all
issues in any event, did so. See RSA 677:15, I-a (2016) (detailing procedures
for appealing planning board decisions where some issues are appealable to
the ZBA); RSA 679:9, I (“Appeals to the [HAB] shall be consistent with appeals
to the superior court pursuant to RSA 677:4 through RSA 677:16.”). In their
brief to this court, the petitioners now concede that “the ZBA had no
jurisdiction to entertain th[e] part of their appeal” challenging the CUPs. As the
HAB had jurisdiction over all issues before it, the only consequence to the HAB
appeal of this unusual procedural posture related to which party bore the
burden of proof with respect to the CUPs. Neither the petitioners nor Iron
Horse contends that this procedural posture has any significance to the issues
before us on appeal, and we agree that it does not.

The petitioners first contend that the HAB erred in upholding the
Planning Board’s issuance of the wetland CUP because, as a matter of law, Iron
Horse’s proposed project failed to meet the criteria for such a permit. Although

3
the petitioners assert “[t]here is some doubt as to whether [Iron Horse’s]
proposal fully met any of the[] six criteria” in section 10.1017.50, they contend
that it is unnecessary to consider four of the criteria because “it is beyond
reasonable dispute that the plan failed to comply with subsections (2) and (5) of
that section.” Because the petitioners have not briefed the other four criteria,
we deem any argument that those criteria are not met to be waived. See Girard
v. Town of Plymouth, 172 N.H. 576, 591 (2019) (noting arguments not briefed
are deemed waived).

Although the petitioners did not provide a copy of Portsmouth Zoning
Ordinance section 10.1017.50, the parties agree that the applicable
subsections of that section provide:

(2) There is no alternative location outside the wetland buffer
that is feasible and reasonable for the proposed use, activity or
alteration.
....
(5) The proposal is the alternative with the least adverse
impact to areas and environments under the jurisdiction of this
Section.

(Bolding omitted.)

With respect to criterion two, the petitioners assert that a diagram
created by a professional engineer “showed irrefutably that it was and is
feasible to erect three apartment buildings on the site at a location that is
outside the 100’ wetland buffer.” The diagram appears to show smaller,
truncated, and/or reconfigured versions of the three proposed apartment
buildings superimposed on one of Iron Horse’s plans. In that diagram, none of
the buildings encroaches on the 100-foot wetland buffer.

Iron Horse argues that “[i]t is immaterial whether a different, smaller
project could be developed on the property” and asserts that “[t]he operative
question is whether a feasible alternative method is available to implement the
project as proposed.” It points to language in Malachy Glen Associates v. Town
of Chichester, 155 N.H. 102 (2007), that it asserts supports its position. The
petitioners, on the other hand, point to different language in Malachy Glen that
they assert supports theirs.

We conclude, however, that Malachy Glen provides little guidance here,
as it addressed an “other method reasonably feasible” analysis in the context of
the now-superseded hardship standard for area variances that we adopted in
Boccia v. City of Portsmouth, 151 N.H. 85 (2004), superseded by statute as
stated in Harborside Associates v. Parade Residence Hotel, 162 N.H. 508, 513
(2011). Malachy Glen Assocs., 155 N.H. at 107; see RSA 674:33, I(b)(1) (Supp.
2022); Harborside Assocs., 162 N.H. at 513 (noting that the purpose of RSA

4
674:33, I(b), as indicated by the legislature’s statement of intent, was to
“eliminate the separate unnecessary hardship standard for area variances that
we adopted in” Boccia (quotations omitted)). The petitioners here do not
challenge the issuance of a variance, but, rather, a CUP. See 2 Patricia E.
Salkin, American Law of Zoning § 14:1 (5th ed. 2019) (explaining that
conditional use permits and variances differ “because while a variance
authorizes a use that would otherwise be prohibited in the zoning district, a
[conditional use] permit authorizes a use that is provisionally permitted, but
subject to prior administrative review and approval”). The test for a variance
under RSA 674:33 requires the applicant to show “unnecessary hardship,”
while none of the criteria for a wetland CUP under section 10.1017.50 requires
such a showing. RSA 674:33, I(a)(2)(E) (Supp. 2022) (providing, as one of the
requirements for a variance, that “[l]iteral enforcement of the provisions of the
ordinance would result in an unnecessary hardship”); see Salkin, supra § 14:1
(explaining that because “special uses are conditionally authorized under the
zoning regulations, rather than ad hoc requests for zoning relief like variances,
they are not generally required to meet the rigorous standards of undue
hardship or practical difficulties”).

Moreover, the inquiry at issue in Malachy Glen was different from that at
issue here. In Malachy Glen, the applicant was required to show, among other
things, that “the benefit sought by the applicant cannot be achieved by some
other method reasonably feasible for the applicant to pursue, other than an
area variance.” Malachy Glen Assocs., 155 N.H. at 107 (emphases added).
Here, to satisfy criterion two in section 10.1017.50, Iron Horse was required to
show that “[t]here is no alternative location outside the wetland buffer that is
feasible and reasonable for the proposed use, activity or alteration.”
(Emphases added).

At the Planning Board meeting, board member Chellman questioned
whether “there was buildable land on the parcel outside of the buffer[.]” The
senior project manager for the proposed project responded, referencing “the
constraints . . . highlighted on the plan”:

There is upland out there but the view corridors, 25-foot sewer
easement and railroad setback limit the options. This project was
located in the upland outside of the constraints. If the buildings
are pulled back, then they would be putting pavement in the
buffer. The entire project cannot be pulled back because of the
sewer easement.

Nevertheless, Chellman asked whether the project could be “scaled back”
to be outside of the buffer. The petitioners contend that Iron Horse “never
offered any explanation as to why this could not have been done, other than
the fact that it would not have been as financially rewarding for them to do so.”
The petitioners assert that it was not until their appeal to the HAB that Iron

5
Horse “argued, for the first time, that it would have been economically
infeasible for them to have erected their three buildings at a location outside
the wetlands buffer,” and that, therefore, the argument is waived. We disagree.
In response to Chellman’s question about scaling back the project, Iron Horse’s
attorney stated that doing so “would make the project no longer viable.” When
Chellman asked “if viability meant the economics of the project,” the attorney
confirmed that it did. Unlike the petitioners, we do not read this exchange to
indicate that a scaled-back project would be less “financially rewarding.”
Viable is synonymous with feasible. See New Oxford American Dictionary 1925
(3d ed. 2010) (defining “viable,” in relevant part, to mean “capable of working
successfully; feasible”). Thus, Iron Horse argued economic infeasibility before
the Planning Board.

We further note, with respect to the evaluation of criterion two, that the
Planning Board’s record contains plans for four previous versions of the
project, with differently configured buildings on differing portions of the site.
Having different iterations of the project before it gave the Planning Board a
basis for evaluating whether there was a feasible and reasonable alternative
location for the project on the site. Cf. Tarullo v. Inland Wetlands and
Watercourses, 821 A.2d 734, 736, 741 (Conn. 2003) (“As a result of reviewing
successive applications for the same site, the [inland wetlands and
watercourses] commission can judge firsthand the feasibility and prudence of
alternate development schemes.”). Moreover, the Planning Board was entitled
to credit Iron Horse’s attorney’s representation that scaling down the project to
avoid encroachment on the wetland buffer would not be economically feasible.
See Dietz v. Town of Tuftonboro, 171 N.H. 614, 624 (2019) (concluding that “it
was not unreasonable for both the ZBA and the trial court to credit the
representations made by [the equitable waiver applicant’s] attorney that ‘the
cost would be prohibitive to remove the back of the [setback-encroaching]
house’”). Accordingly, we find no error with respect to criterion two.

We reach a similar conclusion with respect to criterion five: whether
“[t]he proposal is the alternative with the least adverse impact to areas and
environments under the jurisdiction of this Section.” Iron Horse’s application
summarized the buffer impacts of the “four prior . . . iterations of the Site Plan
previously submitted to the Conservation Commission” as well as of the project
as then proposed. The net figures ranged from a high of impacting 26,349
more square feet than the current site condition under the first iteration to a
low of impacting 28,385 fewer square feet than the current site condition under
the project as finally proposed and approved. This information gave the
Planning Board a basis on which to conclude that the last-proposed iteration of
the project was “the alternative with the least adverse impact to” the 100-foot
wetland buffer. Accordingly, we find no error with respect to criterion five.

The petitioners nevertheless challenge the frameworks under which they
claim: (1) the Planning Board considered and approved the wetland CUP; and

6
(2) the HAB reviewed that approval. They first note that the six criteria listed in
section 10.1017.50 are mandatory and that Iron Horse was required to comply
with all of them. They argue that the HAB concluded in its written decision
that Iron Horse’s “plan was ‘not unreasonable’ and used that conclusion as the
main basis for its decision.” They then assert the appropriate test is not “that a
proposal is ‘not unreasonable,’” but whether the six criteria are met.

Iron Horse counters that “[p]laced in the proper context of the entire HAB
ruling,” the language the petitioners challenge “reflects the burden of proof and
is not a revision to the Wetlands CUP criteria.” We agree. Although the HAB
could have used more precise language, its decision as a whole reflects that it
fully reviewed the record before it and ultimately “d[id] not believe that the
Planning Board acted illegally or unreasonably in making its wetlands CUP
decision.” See RSA 679:9, II.

The petitioners further argue:

[A] majority of the members of the Planning Board treated [the six]
mandatory criteria as mere “factors” and improperly adopted a
“benefits vs. detriments” analysis, wrongly concluding that a
wetlands conditional use permit may be issued if there is a “net”
overall benefit to the environment after weighing the benefits of the
proposal against its drawbacks.

We disagree. Much of the Planning Board members’ discussion regarding the
wetland CUP involved whether the applicable provisions of the zoning
ordinance allowed building in the wetland buffer at all. Chairman Legg,
however, noted that at a previous meeting, the city attorney “articulated the 6
requirements that are necessary to build within the 100-foot setback. If the
City Attorney did not believe this could be built in the buffer, he would have
said that.” Chairman Legg further stated that the “[Planning] Board has always
interpreted the ordinance such that the application is subject to the 6 criteria
and appropriate mitigation when building in the buffer.”

In its presentation to the Planning Board, Iron Horse’s senior project
manager went through each of the six criteria and argued that each was
satisfied. During the board members’ discussion, a non-member speaker who
appears to have had some connection to the Conservation Commission1 noted
that that commission went “through the 6 criteria” and that the commission’s
members “are aware of the criteria and understand [them].” Admittedly, some
members’ remarks strayed into commentary about the overall benefits of the
project as an improvement over the site’s present condition, but we are not

1 The record reflects that the Conservation Commission recommended approval of the wetland

CUP with certain stipulations.

7
persuaded that the members failed to appreciate that all six criteria for a
wetland CUP had to be satisfied.

In sum, we reject the petitioners’ challenges to the frameworks under
which the Planning Board and the HAB considered the wetland CUP. We
conclude that the Planning Board had adequate evidence on which to
determine that criteria two and five — the only two challenged on appeal —
were satisfied, and its conclusion that they were satisfied was not unlawful or
unreasonable. Accordingly, we conclude that the HAB did not err in finding
that the Planning Board did not act illegally or unreasonably in granting the
wetland CUP.

The petitioners next argue that the HAB improperly substituted its
judgment for that of the ZBA. They argue:

Applying this Court’s holding in the familiar case of Fisher v.
City of Dover, 120 N.H. 187 (1980), the ZBA found as fact that
there was no substantial difference between the revised building
plan and the one that had been rejected a year earlier. The [HAB]
had no business setting aside this finding.

In Fisher, we held that “a zoning board, having rejected one variance
application, may not review subsequent applications absent a ‘material change
of circumstances affecting the merits of the application.’” Brandt Dev. Co. of
N.H. v. City of Somersworth, 162 N.H. 553, 556 (2011) (quoting Fisher, 120
N.H. at 191). Here, in connection with a previous iteration of the project, Iron
Horse submitted an application in November 2019 for a variance to exceed the
applicable height limitation. The minutes of the ZBA meeting at which the
variance request was addressed reflect that Iron Horse sought a variance “to
allow a portion of two buildings to be five-stories, 60 feet where a four-story, 50
foot building maximum is permitted.” In this iteration of the project, 178 units
were proposed. The ZBA denied the variance by unanimous vote.

The petitioners assert that the final iteration of the project, which the
Planning Board approved, still “called for buildings exceeding the 50’ height
limit and reaching almost 60’ in height.” They explain:

[Iron Horse’s] solution to the dilemma created by the ZBA’s
previous denial of their variance request was simple: The new plan
called for [Iron Horse] to transport fill into the site from outside
and to pack it around the first story/ground floor garage of the[]
new building. [It] would then call the first level “the underground
garage” and would use the imported fill to raise by several feet the
level of the ground surrounding it. [It] would then call the raised
ground level “the new grade,” from which the building’s height was
supposedly to be measured. By rearranging the numbers, [Iron

8
 Horse] claimed that the[] new building would not violate the 50’
height limit and that therefore no variance was required.

(Footnote omitted.) At the ZBA hearing, the petitioners called this alleged ruse
an “architectural sleight-of-hand.” The petitioners now assert that the “ZBA
was not fooled” and found “no substantial difference between the redesigned
buildings” and those for which it had denied a variance in 2020.

Iron Horse contends that the petitioners’ Fisher doctrine argument is
factually incorrect because Iron Horse proposed bringing in fill to elevate the
grade in the 2019 variance application itself and not after that application was
denied. In other words, as we read its argument, Iron Horse contends that no
“architectural sleight-of-hand” took place because the building heights in both
the 2019 variance application and the 2021 final plan were measured from
where the average grade would be after fill was brought in. The record fully
supports this contention.

In its 2019 variance application, Iron Horse noted that in the project as
then proposed, it had graded the first floor of all three buildings “to raise the
elevation of all occupied levels of the building to provide additional flood
protection.” Moreover, when asked by a ZBA member whether “the building
heights would be measured from the railroad tracks area or the present
ground,” Iron Horse’s project engineer stated that “the first floor would be in
line with the railroad.” Thus, in asking for a variance for a sixty-foot tall
building, Iron Horse was not measuring height from the present ground level,
but, apparently, from the height of the regraded/elevated first floor. In the
subsequent ZBA appeal from the Planning Board’s decision, the project
engineer reaffirmed that “the elevation of the railroad track was 17 and the
finished floor was 17.5, so it was approximately the same elevation.”

In the final iteration of its project before the Planning Board in 2021, Iron
Horse again measured building height from the elevated first floor. As so
measured from the new average grade plane, none of the buildings exceeded
either four stories or, as the HAB noted, fifty feet in height. Accordingly, the
record supports Iron Horse’s contention that the petitioners’ claim that it
“engaged in ‘architectural sleight of hand’ by raising the property grade after
the ZBA denied” its request for a variance is false. Thus, even if the ZBA on
appeal did find, as the petitioners contend, “that at least with regard to the
height limit, there was no substantial difference between the plan which the
Planning Board had approved . . . and the one which the ZBA itself had
previously rejected” by denying a height variance, that finding is not supported
by the record. Thus, the HAB appropriately could have disregarded it: “The
HAB’s review is not whether it agrees with the [ZBA’s] findings, but, rather,
whether there is evidence in the record upon which the [ZBA] could have

9
reasonably based its findings.” Appeal of Chichester Commons, 175 N.H. 412,
415-16 (2022) (addressing HAB’s review of a planning board decision).

The petitioners contend, however, that “there was conflicting testimony
and other evidence as to whether [Iron Horse] artificially raised the ground level
of their proposed new building in order to circumvent the ZBA’s prior decision
denying their application for a height variance, or whether they redesigned
their building for legitimate reasons.” They then assert that “[i]t was for the
ZBA . . . to resolve conflicts in evidence and assess the credibility of the offers
of proof.” Harborside Assocs., 162 N.H. at 519. We are not persuaded. While
the petitioners’ attorney asserted before the ZBA that Iron Horse “engaged in
architectural sleight-of-hand by bring[ing] in fill . . . to raise the ground an
extra seven or eight feet,” the minutes2 do not reflect that they presented any
evidence to that effect. On the other hand, as noted above, the record evidence
as to the 2019 variance speaks for itself.

To the extent the minutes reflect a dispute before the ZBA in 2021 as to
whether, under the applicable ordinance, building height should be measured
from the higher regraded level or from the original ground level before fill was
brought in, that dispute presented an issue of law, on which the ZBA did not
explicitly rule3 and which the HAB decided adversely to the petitioners. The
petitioners have not appealed that legal determination by the HAB, and we
therefore do not consider it.

For the foregoing reasons, we conclude that the HAB’s order is neither
legally erroneous nor unjust or unreasonable. See RSA 541:13.

Affirmed.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

2 The petitioners cite YouTube video recordings of the ZBA meeting, which they state are

accessible from the City of Portsmouth’s website. As such videos are not part of the certified
record transferred to us, we have not viewed them.

3 The HAB noted: “[T]he ZBA summarily reversed the Planning Board’s decisions (Counts 1-9)

without significant discussion. . . . In addition, [one ZBA member] said: ‘. . . the Board should just
consider the totality of the appeal and say yes or no.’ The [HAB] finds this method of deciding the
numerous appeal counts to be suspect, since the focus of the ZBA was on the project itself and
not each individual appeal request.” (Citation omitted.)

10