PPI Enterprises, LLC v. Town of Windham

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0707, PPI Enterprises, LLC v. Town of
Windham, the court on February 2, 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
plaintiff, PPI Enterprises, LLC (PPI), appeals orders of the Superior Court
(Attorri, J.) affirming a decision of the planning board (Board) for the
defendant, the Town of Windham (Town), denying PPI’s site plan application.
PPI also appeals the trial court’s determination that PPI’s inverse condemnation
claim is not ripe. We affirm.

I

This appeal arises out of ongoing litigation between PPI and the Town
regarding PPI’s site plan application to construct a self-storage facility at 14
Ledge Road. Many of the underlying facts and related procedural history are
set forth in our prior order and will not be repeated here. See PPI Enterprises,
LLC v. Town of Windham, Nos. 2020-0249 and 2020-0250 (non-precedential
order at 1-3), 2021 WL 2580598 (N.H. June 23, 2021). As pertinent to this
appeal, the facts set forth below were found by the trial court or are supported
by the record.

In September 2018, PPI filed a site plan application which included an
access road with an eight-percent grade. Throughout numerous public
hearings on the application, the Board’s primary concern centered around the
amount of proposed blasting called for by the application. PPI agreed to
comply with all applicable blasting regulations, including the Town’s ordinance,
and, in an effort to further address the Board’s concerns, amended its
application to increase the grade of the access road to ten percent in order to
reduce the amount of blasting. In June 2019, the Board denied the application
as amended. The Board based its decision on section 100 of the Windham
Zoning Ordinance, which sets forth its general purposes. See id. at *1.

After PPI filed a series of appeals — including to the Town’s zoning board
of adjustment, superior court, and this court — we remanded the case for the
Board to “resume its deliberations and issue a final decision on PPI’s site plan
application.” Id. at *4. In August 2021, the Board again denied the
application, due, in part, to safety concerns regarding the ten-percent grade.
The Board’s grounds also included threats to public health and safety and the
possible impact of contamination of surface and groundwater from blasting.

PPI appealed the Board’s denial to the superior court, asserting that the
grounds stated by the Board did not provide a reasonable basis for its decision.
In addition, PPI argued that the Board’s consecutive denials of its application
had rendered the property “essentially undevelopable, therefore resulting in an
‘inverse condemnation’ without just compensation.”

In July 2022, following a hearing, the trial court upheld the Board’s
decision, finding that “the Board’s safety concerns arising from the grade of the
proposed access road were sufficient” to support denial of the application.
However, the court directed the parties to submit further briefing with respect
to PPI’s inverse condemnation claim, expressing its concern that the Board
“seemed intent on preventing PPI from developing the Property at all, inasmuch
as such development would necessarily involve blasting.” In support, the trial
court observed that the Town: (1) considers the property “geographically
challenged”; (2) effectively concedes that blasting is required to develop the
property; (3) is “very concerned about blasting” on the property because of
issues that arose from the previous owner’s blasting; and (4) believes that the
blasting ordinance “assumes a blank slate” and that “mere compliance with the
ordinance would not be enough to gain approval” from the Board given the
prior history of the property. (Quotations omitted.) The court also observed
that the Board had twice denied PPI’s application because of concerns about
blasting “regardless of whether PPI’s application complies with the Town’s
blasting ordinance.” Thus, it “[struck] the Court as a foregone conclusion” that
the Board would “certainly deny” a revised application with an eight-percent
grade “since it would necessarily entail a greater amount of blasting than the
application which ha[d] now been twice denied.” (Quotations omitted.)
Therefore, the trial court concluded, there was “a serious question” whether the
Board’s actions had “substantially interfered with, or deprived PPI of, the use
of” its property.

In October 2022, after reviewing the parties’ supplemental filings, the
trial court determined that PPI’s inverse condemnation claim was not ripe for
review. The court found that there were “at least two possible paths” to
developing the property — first, by exploring the possibility of obtaining access
to the site “via an easement over an abutting commercial lot,” or, second, by
submitting a site plan application “which returns to the 8% driveway grade
required by the Chief of Police and the Board,” and which the Town had
“affirmatively asserted that the Board will fairly consider.” Given those options,
the trial court could not conclude that PPI would “suffer undue hardship if the
Court [did] not address its takings claim at this juncture” or that “the Board’s
denial of the [site plan application] constitute[d] a final and authoritative

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determination of the type and intensity of development legally permitted” on
the site. This appeal followed.

II

On appeal, PPI argues that the trial court erred by affirming the Board’s
decision to deny the site plan application and in determining that PPI’s inverse
condemnation claim is not ripe. Our review of a trial court’s decision on an
appeal arising from a decision of a planning board is limited. See 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.
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. at 582.

PPI first asserts that the trial court erred in upholding the Board’s denial
on the ground that the ten-percent grade violated the standard in the road
grade regulation. PPI argues that “nothing in the road grade regulation itself”
supports its applicability to a site driveway and, therefore, that ground for
denial of PPI’s application was “unlawful and unreasonable.” However,
regardless of whether the so-called road regulations applied, the court found
that “the Board’s safety concerns arising from the grade of the proposed access
road were sufficient in themselves to support denial of the application.” The
trial court’s finding is supported by the record.

At a hearing in May 2019, the Board considered PPI’s amended site plan
application to increase the grade of the driveway to ten percent. The meeting
minutes reflect that the Board expressed disfavor with the increased grade,
“considering that many people who would be using it would be inexperienced in
driving box trucks.” According to the minutes, at the hearing in August 2021
following remand from this court, the Chair “said that the grade of the road
was questionable as it was presented as 10%,” that “the police department
disagreed that the grade was not a safety issue,” and “questioned the health
and safety of the sight lines from the proposed driveway.” Accordingly, we
agree with the Town that “[g]iven the nature of the expected traffic at a self-
storage facility, and the projected capabilities of drivers, it was entirely
reasonable for the Planning Board not to approve a 10% slope.” See Star
Vector Corp. v. Town of Windham, 146 N.H. 490, 493 (2001) (explaining that if
any of the reasons offered by the Board to reject a site plan application
supports its decision, then an appeal from the Board’s denial must fail).

PPI next argues that the trial court erred in refusing to consider the
merits of its inverse condemnation claim, asserting that the court’s “conclusion
that PPI’s inverse condemnation claim was not ripe was unlawful and lacked
any record support.” According to PPI, the trial court’s reliance on town
counsel’s assertion that the Board would consider a revised application in good

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faith “had no record support being contrary to the actual conduct of the
Planning Board in the case,” and the court’s finding that “there were at least
two alternatives that could be pursued by PPI was likewise unlawful and
unsupported by the record.” Further, PPI asserts, it would be “futile” to submit
an application with an eight-percent grade because, even if it could obtain
alternative access to the site, some amount of blasting would be required to
complete the project, and the Board has “repeatedly adopted the position that
the Property is not suitable for development due to the need for blasting.”

“[A]rbitrary or unreasonable restrictions which substantially deprive the
owner of the economically viable use of his land in order to benefit the public in
some way constitute a taking . . . requiring the payment of just compensation.”
Hill-Grant Living Trust v. Kearsarge Lighting Precinct, 159 N.H. 529, 532
(2009) (quotation omitted). “While the owner need not be deprived of all
valuable use of his property, a taking occurs if the denial of use is substantial
and is especially onerous.” Id. (quotations and brackets omitted). “There can
be no set test to determine when regulation goes too far and becomes a taking.
Each case must be determined under its own circumstances.” Id. at 532-33
(quotation omitted).

“It follows from the nature of a regulatory takings claim that an essential
prerequisite to its assertion is a final and authoritative determination of the
type and intensity of development legally permitted on the subject property.”
Id. at 533 (quotation omitted). “A court cannot determine whether a regulation
has gone ‘too far’ unless it knows how far the regulation goes.” Id. (quotation
omitted). Thus, “a State taking claim must meet the ripeness requirement of
presenting a final decision of the applicable governmental entity regarding the
application of the regulations to the property at issue.” Id. (quotation and
brackets omitted).

Ripeness relates to the degree to which the defined issues in a case are
based on actual facts and are capable of being adjudicated on an adequately
developed record. Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450,
455 (2015). Although we have not adopted a formal test for ripeness, we have
found persuasive a two-pronged analysis that evaluates the fitness of the issue
for judicial determination and the hardship to the parties if the court declines
to consider the issue. Id. With respect to the first prong of the analysis, fitness
for judicial review, a claim is fit for decision when: (1) the issues raised are
primarily legal; (2) they do not require further factual development; and (3) the
challenged action is final. Id. The second prong of the ripeness analysis
requires that the contested action impose an impact on the parties sufficiently
direct and immediate as to render the issue appropriate for judicial review at
this stage. Id.

Here, the trial court recognized that whether PPI’s condemnation claim
was ripe for review presented “a close call” and that “[g]iven the lengthy

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proceedings before the Board and PPI’s good faith efforts to alleviate the
Board’s concerns, PPI’s skepticism as to whether the Board would approve an
alternate proposal for developing the Property [was] understandable.”
Nonetheless, in determining that the Board’s denial of the application did not
constitute a “final and authoritative determination of the type and intensity of
development legally permitted,” the court relied on the fact that since it issued
its July 2022 order the Town had “repeatedly asserted that the Board would
not necessarily deny subsequent applications to develop the Property.” For
example, the court noted that the Town has represented that PPI “could re-
submit a new application that conforms with the 8% grade deemed acceptable
by the Police Chief, and with other mitigation or modification, it could be found
acceptable.” (Brackets omitted.)

Should PPI choose to resubmit a site plan application that proposes an
eight-percent grade, the Board shall, as represented by the Town and relied on
by the trial court, “fairly consider the merits of such an application.” See Hill-
Grant Living Trust, 158 N.H. at 538 (“Government authorities . . . may not
burden property by imposition of repetitive or unfair land-use procedures in
order to avoid a final decision.” (quotation omitted)). Accordingly, we agree
with the trial court that, given the Town’s affirmative representations, the
Board’s denial of PPI’s amended site plan application proposing a ten-percent
grade does not, as a matter of law, present a final decision regarding the
application of the regulations to the property at issue and, therefore, we affirm
the court’s decision that PPI’s taking claim is not ripe.

Affirmed.

MACDONALD, C.J., and BASSETT J., concurred; HANTZ MARCONI, J.,
concurred specially.

Timothy A. Gudas,
Clerk

HANTZ MARCONI, J., concurring specially. I concur in the result
reached by my colleagues. I write separately to point out that this applicant
has become wedged between the proverbial “rock and hard place.” First, the
applicant was denied for concerns over the amount of on-site blasting and
then, after increasing the road grade to reduce the blasting, the applicant was
denied for the excessively steep road grade. The town has represented that a
resubmitted application that “conforms with the 8% grade . . . and with other
mitigation or modification, could be found acceptable.” I trust the Board will
articulate the “other [reasonable] mitigation or modification” that will render
the application acceptable. Carbonneau v Town of Rye, 120 N.H. 96, 99
(1980).

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