Jeffrey E. Raymond, Trustee of J&R Realty Trust v. Town of Plaistow

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Rockingham
No. 2022-0236

JEFFREY E. RAYMOND, TRUSTEE OF J&R REALTY TRUST

v.

TOWN OF PLAISTOW

Argued: March 28, 2023
Opinion Issued: July 28, 2023

Nicosia & Associates, P.C., of Tyngsboro, Massachusetts (Peter J. Nicosia
on the brief and orally), for the plaintiff.

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

DONOVAN, J. The plaintiff, Jeffrey E. Raymond, as Trustee of J&R
Realty Trust,1 appeals an order of the Superior Court (St. Hilaire, J.) affirming
a decision of the Zoning Board of Adjustment (ZBA) for the Town of Plaistow
denying the plaintiff’s variance request and upholding the zoning determination
of the town’s Building Inspector (BI). The plaintiff argues that the court erred

1 For purposes of this appeal, we refer to the plaintiff as “it” in accordance with the parties’ briefs.
in affirming the ZBA’s decision because: (1) the record supports the plaintiff’s
contention that its proposed use of the property falls within the definition of a
Trade Business; and (2) the ZBA unlawfully considered prior zoning violations
at other properties operated by the plaintiff’s anticipated tenant when making
its determinations. We conclude that, based upon the plain language of the
town’s zoning ordinance, the plaintiff’s proposed use of the property constitutes
a Trade Business. Accordingly, we reverse the trial court’s order upholding the
ZBA’s decision denying the plaintiff’s appeal from the BI’s zoning
determination.

I. Facts

The following facts are supported by the certified record or are
undisputed. The plaintiff owns property located in the town’s “Commercial 1”
(C1) zoning district. The property consists of a 1.18-acre corner lot at the
intersection of Route 125 and Old County Road. The plaintiff seeks to convert
the property from its current non-conforming residential use to a commercial
use. The plaintiff plans to raze the existing dwelling and construct a two-story,
2,200 square foot office building. Behind the proposed office building, the
plaintiff also plans to construct a one and one-half story, 3,400 square foot
warehouse building. Ultimately, the plaintiff intends to lease the property to
JNR Gutters, Inc. (the company), which intends to relocate its headquarters to
the property. The company is a home improvement business engaged in the
sale, service, and installation of windows, siding, roofing, decks, and gutters.

As a prerequisite to a site plan application, the plaintiff submitted the
proposed development to the town’s BI and requested a zoning determination.
In October 2020, the BI found the proposed use of the property to be a
“Contractor’s Storage Yard,” which is not a permitted use in the C1 zoning
district. Thereafter, the plaintiff appealed the BI’s zoning determination to the
ZBA, arguing that the BI’s determination should be overturned because the
proposed use of the property was “more akin to a Trade Business,” which is
permitted in the C1 zoning district. Specifically, the plaintiff argued that the
property would primarily be used as an office and retail showroom and that the
development proposal included voluntary stipulations that the company would
not store materials or heavy vehicles outside on the site, thereby removing the
Contractor’s Storage Yard features as defined by the town’s zoning ordinance.
At the same time and in the alternative, the plaintiff filed a variance application
with the ZBA to permit the development of a Contractor’s Storage Yard on the
property with the same stipulations.

In December 2020 and January 2021, the ZBA conducted public
hearings on the plaintiff’s appeal and variance application. At both hearings,
the ZBA questioned the plaintiff about ongoing zoning violations at another

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property operated by the company in Plaistow,2 as well as the condition of the
company’s current headquarters in Haverhill, Massachusetts. The plaintiff
represented that the company intended to relocate some of the materials
causing the violations at the existing Plaistow site to the warehouse of the
proposed development. Therefore, counsel for the plaintiff asserted, “allowing
this site to be developed would likely cure the issues with the existing site.”
The ZBA noted that “it was difficult to rely on voluntary compliance when there
are already violations,” and explained that in light of these “existing long-term,
unresolved issues,” their concern with the plaintiff’s stipulations “was more of
a trust issue.” At both hearings, a ZBA member expressed concern about
enforcement costs and noted that the town would bear the costs of any future
enforcement action.

In January 2021, the ZBA voted to deny the plaintiff’s appeal and
variance application. Specifically, the ZBA found that, as to the plaintiff’s
variance request, “the primary use of the business” is “industrial in nature,”
which is contrary to the intent of the ordinance. Accordingly, the ZBA
determined that the plaintiff had not met the statutory requirements for
granting a variance.

In upholding the BI’s zoning determination, the ZBA noted that the
company referred to itself as “contractors” on its website. Additionally, given
the prior violations at the other property in the town, the ZBA noted that the
“lack of trust” remained an issue, particularly when it would be relying upon
the plaintiff’s stipulations to comply with the zoning ordinance. The ZBA took
into account that the plaintiff proposed moving some of the materials causing
the violations at the existing site to the proposed warehouse, but observed that
a bulldozer had been stored at the undeveloped proposed site, thereby
indicating a compliance issue given that the zoning ordinance prohibits a Trade
Business from storing heavy construction equipment. See Plaistow, N.H.,
Zoning Ordinance, art. II, § 220-2 (2022) (hereinafter, “Ordinance”). Ultimately,
the ZBA denied the plaintiff’s zoning appeal. The plaintiff moved for rehearing,
which the ZBA denied.

The plaintiff appealed to the superior court, arguing that the ZBA’s
denial of its appeal of the BI’s zoning determination contained insufficient
findings as required by law, and that the ZBA’s denials of its appeal of the BI’s
zoning determination and its variance application were not supported by the
record. The plaintiff also argued that “the ZBA’s decisions [were] unlawful and

2 We note that Jon Raymond, individually, is the property owner of 213 Main Street — the other

property in Plaistow operated by the company. The record further demonstrates that Jon
Raymond is involved in the business operations of the company. Although only Jeffrey Raymond
is identified as a trustee of J&R Realty Trust, the plaintiff’s application for appeal and variance
request before the ZBA identifies Jon Raymond as a contact for the trust and indicates that the
trust utilizes the same mailing address as the company’s headquarters in Haverhill,
Massachusetts.

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unreasonable because they were influenced by improper considerations,”
including the ZBA’s inquiries and concerns with the company’s Plaistow
property and headquarters in Haverhill, Massachusetts. (Emphasis omitted.)

In March 2022, the court issued an order upholding the ZBA’s decisions.
The court opined that the ZBA members properly used their own knowledge,
experience, and common sense, as well as the “[t]own’s own records,” when
considering the ongoing violations at the other property operated by the
company in the town. Further, the court determined that these zoning
violations at another Contractor’s Storage Yard in the town were both “highly
relevant and appropriate for a ZBA member to consider” when denying the
plaintiff’s variance request. The court also found that the ZBA’s decisions
contained sufficient written findings and that the plaintiff “failed to show” that
the ZBA committed errors of law or that its decisions were unreasonable. This
appeal followed.

Following briefing and oral argument, we issued an order on April 11,
2023, remanding this case to the superior court for it to articulate the legal
bases and factual evidence supporting its ruling that the ZBA properly
determined that the plaintiff’s proposed use of the property was more akin to a
non-permitted Contractor’s Storage Yard than a permitted Trade Business. We
otherwise retained jurisdiction of the appeal.

On April 20, 2023, the superior court issued an order stating that, based
upon the totality of the ZBA’s discussions at both hearings, it “reiterates its
conclusion that the [ZBA’s] decision to uphold [the BI’s] determination was
reasonable.” The court observed that although the ZBA spent the majority of
both hearings discussing the plaintiff’s variance application, afterwards “the
ZBA thoroughly discussed” the plaintiff’s appeal from the BI’s zoning
determination. The court reasoned that the time the ZBA devoted to
deliberating its zoning determination did not suggest that the ZBA failed to
sufficiently consider the plaintiff’s appeal from the BI’s zoning determination,
because the “same points” raised during deliberation of the variance
application applied to the zoning determination. Specifically, the court found
that evidence reflecting “habitual zoning violations” at the company’s Plaistow
property supported the ZBA’s decision not to credit the plaintiff’s
representations that the company would not store outdoor materials or heavy
equipment on the site. Accordingly, the court found that the ZBA’s decision
not to credit the “[p]laintiff’s concessions on those points supported a finding
that the proposed use was more akin to a Contractor’s Storage Yard.”

II. Analysis

Because we retained jurisdiction following remand, we consider both
superior court orders to determine whether the trial court erred in upholding
the ZBA’s zoning determination. “For its part, the trial court, in reviewing the

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decision of a zoning board of adjustment, is limited to a determination of
whether, on the balance of the probabilities, the decision was unlawful or
unreasonable.” Rochester City Council v. Rochester Zoning Bd. of Adjustment,
171 N.H. 271, 275 (2018) (quotation omitted). “To the extent the ZBA made
findings upon questions of fact properly before the court, those findings are
deemed prima facie lawful and reasonable.” Id. (quotation omitted); see RSA
677:6 (2016). “The review by the superior court is not to determine whether it
agrees with the zoning board of adjustment’s findings, but to determine
whether there is evidence upon which they could have been reasonably based.”
Rochester City Council, 171 N.H. at 275 (quotation omitted).

“We will uphold the superior court’s decision on appeal unless it is
unsupported by the evidence or legally erroneous.” Rochester City Council,
171 N.H. at 275 (quotation omitted). “[W]e are mindful that we do not act as a
super zoning board.” Dietz v. Town of Tuftonboro, 171 N.H. 614, 618 (2019)
(quotation omitted).

The plaintiff argues that the trial court erred in upholding the BI’s zoning
determination because the property’s proposed use is more akin to a “Trade
Business,” which is permitted in the town’s C1 zoning district. According to
the plaintiff, the “decisions of both the ZBA and the Superior Court” upholding
the initial zoning determination of a Contractor’s Storage Yard “are inconsistent
with the plain language of the zoning ordinance and are devoid of factual
support in the [record].”

Resolving this issue requires that we interpret the language of the town’s
ordinance. The interpretation of an ordinance presents a question of law,
which we review de novo. Town of Carroll v. Rines, 164 N.H. 523, 526 (2013).
We construe the words and phrases of an ordinance according to the common
and approved usage of the language. Id. When the language of an ordinance is
plain and unambiguous, we need not look beyond the ordinance itself for
further indications of legislative intent. Id.

The town’s zoning ordinance provides the following relevant definitions:

TRADE BUSINESS — A business enterprise which holds [the] necessary
state and local licenses to provide trade services directly to the ultimate
consumer. Such examples would be electricians, plumbers, and HVAC
contractors. This does not include businesses such as landscaping or
construction contractors that typically call for outdoor storage of
materials.

....

CONTRACTOR’S STORAGE YARD — A site upon which heavy vehicles
and equipment (such as bulldozers, front-end loaders, and back-hoes)

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 and materials, supplies and forms, used by professional contractors in
construction, land clearing, site work, utilities, landscaping, or other
similar activities are stored, including waste disposal containers. Land
upon which any of the above items are temporarily stored on-site during
the course of an active construction project shall not be considered a
contractor’s storage yard.

Ordinance, art. II, § 220-2. Here, the plaintiff proposed constructing an office
building for the company’s management, administrative, and sales teams. The
plaintiff also explained that the company intended to establish a retail
showroom in the office building to provide trade services directly to consumers.
Behind the office building, the plaintiff proposed constructing a 3,400 square
foot warehouse building to store all materials sold to the public. The plaintiff
represented that the company intended to relocate “light vehicles” to the site,
which included pick-up trucks, vans, box trucks and trailers, as well as “small
boom lifts” to be used for snow removal. The plaintiff also represented that the
company would not store any heavy equipment, such as bulldozers or
backhoes, on the proposed site.

On this record, we conclude that, based upon the plain language of the
ordinance, the plaintiff’s proposed use of the property falls within the definition
of a Trade Business. It is undisputed that the plaintiff’s proposed use included
the primary function of a Trade Business as defined by the ordinance:
operating a retail showroom “to provide trade services directly to the ultimate
consumer.” Id. However, when addressing the BI’s zoning determination, one
ZBA member commented that “the applicant’s website calls out that they do
specific contracting work” and another member noted that “they refer to
themselves as contractors on their website.” These statements suggest that the
ZBA relied upon these references to “contractors” and “contracting work” as a
basis for excluding the plaintiff’s proposed use from the definition of Trade
Business. Yet, the ordinance expressly provides examples of a Trade Business
that include “electricians, plumbers, and HVAC contractors.” Id. (emphasis
added). Accordingly, the plain language of the ordinance includes contractors
within the definition of Trade Business when, as here, the contractor is
engaged in a business enterprise offering trade services to consumers.

Moreover, whether the company engages in “construction” work would
not, alone, exclude the plaintiff’s proposed use from the definition of a Trade
Business. Rather, we construe the plain language of the ordinance as
prohibiting construction contractors only when their proposed use calls “for
outdoor storage of materials.” Id. Here, the plaintiff represented that the
company intended to store all materials inside the 3,400 square foot warehouse
building, which will be twice the size of the company’s existing 1,600 square
foot warehouse at the other property operated by the company in the town.

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 The trial court found that in denying the plaintiff’s appeal from the BI’s
zoning determination, the ZBA decided not to credit the plaintiff’s assurances
that the company would not store materials outside or heavy equipment on
site. The court also found that evidence of the company’s “habitual zoning
violations” at the company’s other property in the town supported the ZBA’s
decision not to credit the plaintiff’s assurances. On that basis, the court
affirmed the ZBA’s determination that the plaintiff’s proposed use of the
property is more akin to a Contractor’s Storage Yard.

We conclude that the ZBA erred in considering evidence of the purported
zoning violations at the other Plaistow property when it affirmed the zoning
determination and that the trial court erred by relying upon this same evidence
to uphold that decision.3 When making a zoning determination, the ZBA must
consider whether the proposed use as presented in the application falls within
the definition set forth in the ordinance and not anticipate that the company
might later violate the ordinance by a use not authorized. See Miklus v. Zoning
Bd. of App. of Town of Fairfield, 225 A.2d 637, 639 (Conn. 1967) (holding that
the board considered “[t]he application as presented to the board” and that the
board “is not required to anticipate that the applicant would later violate the
zoning regulations by a use not authorized”); see also Armstrong v. Zoning
Board of Appeals, 257 A.2d 799, 804 (Conn. 1969) (same). Should such a
violation occur in the future, the town’s proper remedy would be to enforce the
applicable zoning ordinance at that time. See Farrar v. City of Keene, 158 N.H.
684, 692 (2009) (holding that any argument that the property would actually
be used for commercial as opposed to mixed office and residential use “is an
issue for code enforcement”); see also Miklus, 225 A.2d at 639; Armstrong, 257
A.2d at 804.

Consequently, we conclude that, based upon the plain language of the
ordinance, the plaintiff’s proposed use constitutes a Trade Business.
Accordingly, we reverse the ZBA’s decision denying the plaintiff’s appeal from
the BI’s zoning determination and the trial court’s orders upholding that
decision. In light of our conclusion, we need not address the plaintiff’s
remaining arguments.

Reversed.

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

3 We note that, to the extent the ZBA relied upon the condition of the company’s headquarters in

Massachusetts, any such reliance was improper, given that the record includes no information as
to the permitted uses and zoning ordinances regulating that out-of-state property. Similarly, the
ZBA’s observation that a bulldozer had been stored on the undeveloped site is immaterial to the
zoning determination.

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