Gail Kelley v. Town of Durham

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0705, Gail Kelley v. Town of Durham, the
court on October 2, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, Gail Kelley, appeals an order of the Superior
Court (Howard, J.) upholding a decision of the planning board for the
defendant, the Town of Durham, to grant subdivision approval and conditional
use permits in support of the applicants’ plan to construct an age-restricted
housing development. The plaintiff argues that the trial court erred by
upholding the board’s finding that there is no practical alternative to the
proposed access road for the planned development that would minimize
disturbance to a wetland conservation overlay district. We affirm.

Judicial review of planning board decisions is limited. See Trustees of
Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 504-05 (2018). The trial
court is required to treat the board’s factual findings as prima facie lawful and
reasonable, and it may not set the board’s decision aside absent
unreasonableness or an identified error of law. Id. at 504. It is the burden of
the party challenging the board’s decision to persuade the trial court that, by
the balance of probabilities, the board’s decision was unreasonable. Id. The
trial court’s role is not to determine whether it agrees with the board’s findings,
but whether there is evidence upon which such findings reasonably could have
been based. Id. We, in turn, will reverse the trial court’s decision only if it is
unsupported by the evidence or legally erroneous. Id. We review the trial
court’s order to determine whether a reasonable person could have reached the
same decision as the trial court based on the evidence before it. Id.

It is the plaintiff’s burden on appeal to demonstrate reversible error.
Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our review of the trial
court’s well-reasoned order, the plaintiff’s arguments, the relevant law, and the
record submitted on appeal, we conclude that the plaintiff has not established
that the trial court’s decision is unsupported by the evidence or legally
erroneous. See id.; Trustees of Dartmouth Coll., 171 N.H. at 504.

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk