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Thompson v. Town of Candia

Supreme Court of New Hampshire

January 24, 2014

Michael Thompson
v.
Town of Candia

ORDER

The petitioner, Michael Thompson, appeals the trial court's order affirming the decision of the Town of Candia Planning Board (board), denying his request for approval of a seven-unit subdivision. He argues that the trial court erred by: (1) upholding the board's unreasonable finding of a significant threat of future flooding on the property; and (2) upholding the board's unreasonable and unlawful application of section 11.02 of the Town's subdivision regulations because the board contradicted its own stated grounds for denying the application. We affirm.

The petitioner proposed to subdivide his 42.1-acre property, which is comprised of a mix of wetlands and uplands, into seven house lots. Because of concerns raised about the potential for flooding on the property, the board voted to deny the application, concluding that the petitioner's plan was "unsuitable for subdivision as presented." The petitioner appealed to the superior court, arguing that the board's decision was illegal and unreasonable. The trial court disagreed and, accordingly, affirmed the board's decision.

The trial court's review of a planning board decision is governed by RSA 677:15, V (2008). Ltd. Editions Properties v. Town of Hebron, 162 N.H. 488, 490 (2011). Its review, therefore, is limited. Prop. Portfolio Group v. Town of Derry, 163 N.H. 754, 757 (2012). It must treat the board's factual findings as prima facie lawful and reasonable, and cannot set the decision aside absent unreasonableness or identified error of law. Id. "The trial court is not to determine whether it agrees with a planning board's findings, but rather whether there is evidence upon which they could have been reasonably based." Id. (quotation omitted). It is the petitioner's burden to demonstrate, by the balance of probabilities, that the board's decision was unreasonable. Id. We, in turn, will uphold the trial court's order unless it is unsupported by the record or legally erroneous, looking to whether a reasonable person could have reached the same decision as did the trial court based upon the same evidence. Id. at 757-58.

The petitioner argues that the trial court erred in upholding the board's finding of a significant threat of future flooding on the property. He relies upon a 2011 Federal Emergency Management Agency (FEMA) determination of the 100-year base flood elevation, even though the document specifically stated that it was "not a final determination." The Town road agent stated, however, that the flooding that occurred in the area corresponded more closely to an earlier 2005 FEMA map, rather than the 2011 map. Because "a planning board is entitled to rely in part on its own judgment and experience in acting upon applications, " Ltd. Editions Properties, 162 N.H. at 497, we find no error.

At the final hearing, discussion focused upon the potential for flooding on the property. The board considered a letter from the Manchester Water Works, an abutter to the property, raising concerns about the proposal's impacts to the wetlands and water quality. One of the board members cited this letter as supporting her position that she "could not in good conscience approve lots that would create problems for future homeowners" due to flooding. Another board member noted that the removal of trees, which hold "thousands of gallons of water" would exacerbate the flooding problem. Additionally, the board received testimony from residents and the Town road agent about flooding on Brown Road, which borders the property to the north. Moreover, the Chief of Police for the Town submitted a letter outlining his concerns that the driveways would be "inundated by water during a high water event, creating a safety risk for the residents and for emergency responders."

Because of these concerns, the board voted unanimously to deny approval of the subdivision "due to flooding and poor drainage." As the board's chair stated, "[I]t is the Board's job to have good planning and the plan presented is not good planning." We do not find this conclusion to be unreasonable. Prop. Portfolio Group, 163 N.H. at 757.

Finally, the petitioner contends that the trial court erred by upholding the board's decision based upon section 11.02 of the Town's subdivision regulations because it prohibits any subdivision of his land. We disagree with the petitioner's characterization of the board's decision.

Section 11.02 prohibits subdivision of "[l]and of such character that it cannot, in the judgment of the Board, be safely used for development because of danger to health or peril from fire, flood, poor drainage, excessive slope (25% or greater), or other hazardous conditions." Contrary to the petitioner's assertion, the board's decision did not "restrict[ ] all subdivision of the land." Rather, it denied the specific proposal before it.

The interpretation of subdivision regulations is a question of law, which we review de novo. Doyle v. Town of Gilmanton, 155 N.H. 733, 735 (2007). In so doing, we are not bound by the interpretation of the planning board. Id.

Pursuant to RSA 674:35, II (2008), a planning board has the authority to "regulate the subdivision of land." In exercising that authority, a planning board "must issue a final written decision which either approves or disapproves an application for . . . subdivision approval . . . ." 15 P. Loughlin, New Hampshire Practice: Land Use Planning and Zoning § 32.09, at 575 (2010) (emphasis added). A planning board's task, therefore, is not to consider a parcel of land in a vacuum to determine whether it is suitable for subdivision. Rather, a planning board reviews a specific subdivision application and evaluates whether the plan before it meets the municipality's subdivision requirements. See Durant v. Town of Dunbarton, 121 N.H. 352, 357 (1981) (noting board must consider current as well as anticipated realities in evaluating subdivision plan).

The board's decision "regarding the Final 7-lot Major Subdivision Application" cited section 11.02, concluding that "[t]he lot cannot be safely used for development as proposed due to flooding and poor drainage." (Emphasis added.). The decision further noted, "the submitted plan is unsuitable for subdivision as presented." (Emphasis added.). The board therefore interpreted section 11.02 as applying to the particular subdivision application it was reviewing, rather than to the parcel in general. We conclude that this interpretation "best harmonizes with the context of the regulations and policies of the board, " Appeal of St. Joseph Hospital, 152 N.H. 741, 747 (2005), and, therefore, uphold the trial court's decision.

Moreover, rather than prohibiting subdivision altogether, the board specifically referenced preference for a different plan with fewer lots. After voting to deny approval of the subdivision, the chair informed the petitioner that he could appeal the board's decision or "could also change the plan." Indeed, the board had recommended at the preliminary hearing that the petitioner not return with this particular plan but, rather, submit a plan with fewer lots. We, therefore, reject the petitioner's assertion that the board found that "the Property is unsafe for development."

Affirmed.

HICKS, CONBOY and LYNN, JJ., ...


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