Patricia Morris & a. v. Town of Barnstead

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0583, Patricia Morris & a. v. Town of
Barnstead, the court on February 14, 2024, 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
plaintiffs, Patricia Morris and Jerad Davis, appeal orders of the Superior Court
(Houran and Leonard, JJ.) in their appeal from decisions of the planning board
and zoning board (ZBA) of the defendant, the Town of Barnstead (Town).
Industrial Tower and Wireless, LLC (ITW), an intervenor in the superior court
action, cross-appeals other orders by the Superior Court (O’Neill, J.) in this
case. The Town joins in ITW’s brief. We affirm.

The following facts and relevant procedural history are taken from the
trial court orders in this case. In early 2020, ITW filed an application for site
plan review with the planning board, seeking to build a 175-foot open lattice
communications tower and associated equipment storage sheds on a 39.6 acre
wooded parcel owned by a third party. The proposed tower would be located
329 feet from the plaintiffs’ property line.

The planning board held two public hearings on ITW’s application in May
2020. In a letter dated May 7, 2020, Morris argued to the planning board that
ITW is a business subject to Section 8-1 of the Barnstead Zoning Ordinance
(BZO). The planning board approved the application without mentioning
Section 8-1 during any of its meetings.

The plaintiffs1 appealed the planning board’s decision to the ZBA,
arguing, among other things, that the planning board misapplied Section 8-1.
ITW filed a motion to dismiss, which the ZBA granted, concluding that it “found
no connection between the arguments raised by the plaintiffs and the
applicable sections of the [BZO].” In other words, and as the trial court
interpreted the ZBA’s ruling, the ZBA concluded that it lacked jurisdiction over
the plaintiffs’ administrative appeal. The plaintiffs filed a motion for rehearing,
seeking, among other things, review of the planning board’s alleged

1 The record is unclear as to whether both plaintiffs participated at each step of the proceedings

leading up to this appeal. Because the parties treat them as having done so, we do the same.
misapplication of Section 8-1. The ZBA denied the motion, reiterating its prior
ruling, but also adding the following additional reason:

While it was not explicit in the Planning Board decision, it seems
likely that the Planning Board determined that under the [BZO],
the proposed Communications tower is a commercial tower owned
and operated by a business outside of Barnstead and not a
business located in Barnstead. This is a reasonable position and
consistent with the treatment of land-line telephone property as
property owned by a business located elsewhere.

The plaintiffs filed an appeal in superior court challenging the planning
board’s approval of ITW’s site plan application and the ZBA’s denial of their
administrative appeal. On June 4, 2021, the Trial Court (O’Neill, J.) ruled that
the ZBA erred in finding that it lacked jurisdiction and remanded to the ZBA to
consider the plaintiffs’ appeal.

ITW filed a motion for reconsideration and, in the alternative,
clarification to, among other things, “ensure that the ZBA determines only the
question which the Court is remanding.” The court denied reconsideration but
directed the ZBA to answer the following question on remand: “Did the
Barnstead Planning Board err in interpreting Section 8-1 of the Barnstead
Zoning Ordinance to be inapplicable to ITW’s proposed Commercial Tower?”
The court further clarified that in its June 4 order, it did not “consider . . . [or
rule upon] any matters/arguments relating to the Planning Board approval of
the site plan,” and stayed the appeal pending the ZBA’s determination of the
matter on remand.

Following a public hearing, the ZBA answered “no” to the remanded
question. After the ZBA denied their request for a rehearing, the plaintiffs
amended their superior court appeal to challenge that determination by the
ZBA.

In an order dated June 3, 2022, the Trial Court (Houran, J.) denied the
plaintiffs’ ZBA appeal, ruling that “the ZBA had a sufficient basis to conclude
the Planning Board did not err in interpreting Section 8-1 of the [BZO] to be
inapplicable to ITW’s proposed Commercial Tower.”

The plaintiffs filed a motion for reconsideration and clarification of the
June 3 order. The Trial Court (Houran, J.) issued an order denying the request
for reconsideration and clarifying that the June 3 order did not resolve all
issues in the case, but only the issue remanded to the ZBA in the June 4, 2021
order. Accordingly, in an order issued on August 16, 2022, the Trial Court
(Leonard, J.) ruled on the plaintiffs’ remaining challenges to the planning
board’s decision. The court granted the appeal in part — ruling that the
planning board acted unreasonably or unlawfully in finding that ITW had fully

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satisfied the requirement contained in Section 3.2(J) of the Town’s non-
residential site plan review regulation — but denied it in all other respects, and
remanded to the planning board to receive evidence of ITW’s compliance with
Section 3.2(J) and, thereafter, to confirm the same. The plaintiffs filed a
motion for reconsideration and clarification, which the trial court denied.

In September 2022, ITW filed a motion for entry of final judgment in its
favor, informing the court that the planning board had confirmed ITW’s
compliance with Section 3.2(J). The Trial Court (Leonard, J.) granted the
motion, thereby affirming the planning board’s site plan approval. The
plaintiffs then filed the instant appeal, challenging the trial court’s affirmance
of the ZBA’s decision on the remanded question and of the planning board’s
approval of ITW’s site plan. ITW cross-appealed, challenging the trial court’s
ruling that the ZBA had jurisdiction over the administrative appeal and, in
turn, the trial court’s own assertion of subject matter jurisdiction over the
plaintiffs’ appeal of the planning board’s site plan approval decision.

This appeal and cross-appeal require us to review superior court orders
in appeals from decisions of the planning board and the ZBA. “The superior
court was obligated to treat the factual findings of both boards as prima facie
lawful and reasonable and could not set aside their decisions absent
unreasonableness or an identified error of law.” Hannigan v. City of Concord,
144 N.H. 68, 70 (1999). “We will uphold the superior court’s decision unless it
is unsupported by the evidence or is legally erroneous.” Id.

We first consider ITW’s cross-appeal, as it challenges the trial court’s
subject matter jurisdiction. See DHB v. Town of Pembroke, 152 N.H. 314, 317
(2005). Specifically, ITW contends that the superior court lacked jurisdiction
because the plaintiffs’ appeal to the superior court, filed 130 days after the
planning board’s decision approving ITW’s site plan, was untimely. The
plaintiffs counter that their appeal was timely filed under the “dual track for
appeals” set forth in RSA 676:5, III and RSA 677:15, I-a because the trial court
correctly found that the planning board “made an implied decision under the
terms of the BZO.” See RSA 676:5, III (2016) (governing appeals to the ZBA);
RSA 677:15, I-a (2016) (detailing procedures for appealing planning board
decisions where some issues are appealable to the ZBA); see also Anthony v.
Town of Plaistow, 175 N.H. 762, 767 (2023) (explaining statutory scheme). The
issue before us, then, is whether the trial court erred in concluding that the
planning board “is assumed to have considered said ordinance after [Morris]
raised it during the public hearing, and made a determination on same.”

The trial court noted:

In a letter sent to the Planning Board dated May 7, 2020, Morris
argued that ITW is a business [that] is subject to Section 8 of the
[BZO], among other things. She also submitted an additional letter

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 dated May 21, 2020, and spoke at the May 5 and 21 hearings.
One of the letters was submitted . . . at the May 21 hearing, but it
is unclear from the record which letter. However, both letters are
contained within the Certified Record and the Planning Board does
not dispute receiving same.

(Citations omitted.) We conclude that the trial court, based upon the evidence
before it, reasonably could have determined that the issue was before the
planning board for its consideration. See Anthony, 175 N.H. at 770 (reciting
standard of review and facts noted by trial court before upholding trial court’s
conclusion that “the planning board considered and implicitly found that the
project did not have a potential for regional impact”).

The trial court further found that the planning board must have reached
one of two alternative conclusions, although the court could not determine
which of them the planning board actually reached: either ITW’s proposed
tower was a business that satisfied Section 8-1 or it was not a business and,
therefore, Section 8-1 did not apply. Accordingly, the trial court ruled, the
planning board made a “decision or determination . . . based upon the terms of
the zoning ordinance, or upon any construction, interpretation, or application
of the zoning ordinance.” RSA 676:5, III.

ITW challenges that ruling. It acknowledges that “a local board can be
found to have made an implied determination where the determination was a
required step in deciding an application,” but contends that the Section 8-1
issue “did not need to be decided in order for the Planning Board to approve
ITW’s site plan.” We disagree. Section 8-1 provides, in pertinent part, that
“[a]ny business may be located in Barnstead upon application and approval of
the Planning Board, Selectman and Health Officer; and provided that [certain
requirements are met].” (Emphasis added.) The planning board’s approval of a
site plan locating ITW’s proposed tower in Barnstead necessarily required a
finding that the proposed tower was either a business compliant with Section
8-1’s requirements or not a business subject to Section 8-1 at all.

ITW nevertheless suggests that the planning board may have “simply . . .
ignored” the plaintiffs’ contention that compliance with Section 8-1 was
necessary. ITW cites no evidence for this possibility, other than the length of
the submission containing the plaintiffs’ Section 8-1 argument and the
planning board’s failure to discuss or explicitly rule upon the issue. We cannot
conclude, based upon this scant evidence, that the planning board ignored an
issue raised before it and necessary to its decision. Moreover, we “must
assume that the [planning board] made subsidiary findings necessary to
support its general ruling.” State v. Palermo, 168 N.H. 387, 394 (2015)
(quotation omitted) (addressing trial court ruling); see Rochester City Council v.
Rochester Zoning Bd. of Adjustment, 171 N.H. 271, 276 (2018) (concluding
ZBA’s failure to “explicitly address unnecessary hardship in its written

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decision” was not error because “the ZBA’s grant of a variance carries with it
an implicit finding of hardship”).

ITW further argues that “the ‘assumed determination’ doctrine adopted
by the Superior Court herein would . . . require[] parties to guess the date on
which an assumed determination was made.” We disagree. A determination
implied, as here, from a planning board’s approval of a site plan is necessarily
made at the time of such approval.

Finally, we note that ITW’s brief recites a procedural history in which the
plaintiffs “changed their position” during their administrative appeal and only
raised an “implicit determination” argument on rehearing. To the extent this
factual recitation could be read to suggest that the issue is not preserved or
otherwise not properly before us, ITW fails to develop any such argument.
Accordingly, we decline to address it. See Town of Dunbarton v. Guiney, 173
N.H. 1, 9 n.5 (2020) (declining to address insufficiently developed argument).

For the foregoing reasons, we conclude that the trial court did not err in
determining that the ZBA, and therefore the trial court in turn, had
jurisdiction. We now turn to the plaintiffs’ appellate issues.

The plaintiffs first contend that the trial court erred in determining that
Section 8-1 does not apply to ITW’s tower, and, more specifically, argue that
the trial court erred in: (1) showing deference to the ZBA’s interpretation of the
BZO; (2) failing to interpret the BZO according to well-settled canons of
construction; and (3) declining to consider the merits of the plaintiffs’
administrative gloss argument. The plaintiffs further urge us to rule that the
ZBA impermissibly applied an administrative gloss.

We need not address the plaintiffs’ specific claims of trial court error,
however, because “[t]he interpretation of a zoning ordinance is a question of
law, which we review de novo.” Town of Lincoln v. Chenard, 174 N.H. 762, 765
(2022) (quotation omitted). “We use the traditional rules of statutory
construction when interpreting zoning ordinances.” Working Stiff Partners v.
City of Portsmouth, 172 N.H. 611, 615 (2019). “We construe the words and
phrases of an ordinance according to the common and approved usage of the
language, but where the ordinance defines the terms in issue, those definitions
will govern.” Id. at 615-16 (citation omitted). “Furthermore, we determine the
meaning of a zoning ordinance from its construction as a whole, not by
construing isolated words or phrases.” Id. at 616.

The BZO defines “[b]usiness” to mean “[a]ctivities of buying and selling;
trade; commercial dealings, commercial enterprise, industrial establishments.”
The plaintiffs argue that the BZO does not define the terms contained within its
definition of business — namely, “trade,” “commercial,” “dealings,” “enterprise,”
“industrial,” and “establishment”— and assert that, looking at the dictionary

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definitions of those terms, ITW’s proposed tower “falls under the definition of
‘business’ and is, therefore, subject to Section 8-1.” We conclude, however,
that the plaintiffs’ interpretation cannot stand in light of another provision of
the BZO that undisputedly applies to ITW’s proposed tower.

The BZO defines the term “[c]ommercial towers” to mean “[a]ny towers
that are used for commercial purposes” and further defines three subcategories
of such towers, including “[w]ireless [t]elecommunication [f]acilities”:

any structure that is designed and constructed primarily for the
purpose of supporting one or more antennas constructed from
grade, including self-supporting lattice towers, guy towers, or
monopole towers. The term includes radio and television
transmission towers, microwave towers, common-carrier towers,
cellular telephone towers, and alternative tower structures used for
similar purposes.

The plaintiffs do not dispute that ITW’s proposed tower is a “commercial tower,”
but, rather, argue that “a ‘commercial tower’ is a subset use of ‘business’” and
“a use may constitute both a ‘business’ and ‘commercial tower’ where such use
meets both definitions.” Thus, under the plaintiffs’ expansive interpretation, all
commercial towers are businesses under Section 8-1.

As the trial court observed, the provision defining commercial towers
specifically provides that “[a]ll towers must be located as permitted in Article
14, Table 1 of this Ordinance.” That provision would be unnecessary if
“commercial towers” were “businesses” under the BZO because Section 8.1.5
provides that “[a]ny business must additionally conform to the requirements of
Article 14 of this Ordinance regarding Zoning Districts.” Accordingly, the
plaintiffs’ interpretation violates the canon of construction that the drafters of
an enactment are “not presumed to waste words or enact redundant provisions
and whenever possible, every word of [the enactment] should be given effect.”
Appeal of Town of Lincoln, 172 N.H. 244, 248 (2019) (construing statute);
Hannigan, 144 N.H. at 71 (rejecting party’s argument that would have rendered
the definition of a term in a zoning ordinance superfluous). Accordingly, we
conclude that the trial court did not err in upholding the ZBA’s determination
that ITW’s proposed tower is not a business subject to Section 8-1 of the BZO.

The plaintiffs next argue that the trial court erred in upholding the
planning board’s determination that ITW’s project complied with Section 4.4 of
the planning board’s non-residential site plan review regulation, which provides
that “[l]andscaping and screening shall be provided with regard to adjacent
properties, the public highway and within the site including interior
landscaping of large parking areas, (over three double rows).” The plaintiffs
contend that “[b]ased on the plain and ordinary meaning of the word
‘screening,’ Section 4.4 . . . requires applicants to provide something that

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conceals a proposed use from view of both adjacent properties and public
highways.” They then assert that, based upon the facts in the record,
including that the proposed tower will extend approximately 100 feet above the
tree line, the proposed tower “will be clearly visible from abutting properties; in
other words, it will not be screened.” They contend that the trial court erred in
ruling that Section 4.4 “does not require that the proposed Tower be screened,
or concealed from view, in its entirety.”

However, Section 4.4 does not contain language explicitly requiring the
entirety of a structure to be screened from view, and we will not add language
the drafters of the ordinance did not see fit to include. See Naser v. Town of
Deering Zoning Bd. of Adjustment, 157 N.H. 322, 324 (2008). Accordingly, we
conclude that the trial court did not err in its interpretation of Section 4.4. To
the extent that the plaintiffs’ remaining arguments could be read to stand
independently of their contention that Section 4.4 requires screening the
entirety of the proposed tower, they fail to persuade us that the trial court’s
order “is unsupported by the evidence or is legally erroneous.” Hannigan, 144
N.H. at 70.
Affirmed.

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

Timothy A. Gudas,
Clerk

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