John Galloway & a.
Town of Kingston
The petitioners, John and Brenda Galloway, appeal an order of the trial court that affirmed a decision of the Town of Kingston Planning Board (board) to approve a site plan filed by the intervenor, Brox Industries (Brox). The petitioners argue that the planning board's decision was illegal or unreasonable because: (1) it exceeded the board's authority; and (2) it was inconsistent with its recent precedent in almost identical applications for development and inconsistent with the advice of its attorney. We affirm.
We briefly restate the facts giving rise to this appeal. Brox owns property that abuts property owned by the petitioners. In 1988, the petitioners granted Stephen Brox a sixty-foot wide easement across their property that provided access to the Brox property from Route 125. The easement was recorded in the Rockingham County Registry of Deeds. In 2010, Brox began discussions with Kingston officials about the construction of a concrete plant on the property. In August 2011, the board granted conditional approval to Brox's proposed site plan. The August 2011 site plan approval is the basis for this appeal.
The trial court's review of a planning board decision is governed by RSA 677:15, V (Supp. 2012), which provides: "The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review when there is an error of law or when the court is persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable." The trial court must treat the factual findings of the planning board as prima facie lawful and reasonable and cannot set aside the board's decision absent unreasonableness or an identified error of law. Motorsport Holdings v. Town of Tamworth, 160 N.H. 95, 99 (2010). The appealing party bears the burden of persuading the trial court that, by the balance of probabilities, the board's decision was unreasonable. Id. The review by the superior court is not to determine whether it agrees with the planning board's findings, but rather, to determine whether there is evidence upon which they could reasonably have been made. Id. We will affirm the decision of the trial court unless it is unsupported by the evidence or legally erroneous. Id.
We turn first to the petitioners' argument that the board's decision exceeded its authority. Specifically they argue that the board had no authority to: (1) determine the existence or scope of a disputed easement; (2) approve a site plan without access from a Class V road; and (3) grant a variance from those town ordinances that require access to a development from a Class V road. We disagree with the petitioners' characterization of the board's action. We note, specifically, that the trial court found: "The easement before the Planning Board appeared valid on its face and did not contain any restrictions." Based upon its review of the record, the court concluded: "The Planning Board approved the site plan application with conditions, based on the understanding that 'the Right of Way [was] a legitimate and viable option.' C.R. Part I, pg. 81. Should the Federal District Court invalidate or otherwise restrict the use of the easement, Brox would then need to return to the Planning Board."
We have reviewed the record before us and considered the ably presented oral arguments of the parties. We affirm for the reasons set forth in the trial court's well-reasoned order.
HICKS, CONBOY and LYNN, JJ., ...