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Girard v. Town of Plymouth

Supreme Court of New Hampshire, Grafton

August 30, 2019

DENIS GIRARD & a.
v.
TOWN OF PLYMOUTH

          Argued: May 16, 2019

          Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the plaintiffs.

          Donahue, Tucker & Ciandella, PLLC, of Exeter (John J. Ratigan and Brendan Avery O'Donnell on the memorandum of law, and Mr. O'Donnell orally), for the defendant.

          DONOVAN, J.

         The plaintiffs, Denis Girard and Florence Leduc, appeal an order of the Superior Court (MacLeod, J.) upholding a decision of the Town of Plymouth Planning Board denying their subdivision application. They argue that the trial court erred in upholding the planning board's denial of their application because: (1) the board "engaged in impermissible ad hoc rule" and "decision making" when it relied upon an "overly broad" subdivision regulation; (2) the board relied on a subdivision regulation that does not specifically authorize the board to regulate wetlands; (3) the board's regulation of wetlands is preempted by State statute; (4) the trial court unreasonably relied on certain evidence provided by a wetlands scientist; (5) the board's decision to reject the application based upon the proposed subdivision's impact on the wetlands was unreasonable; and (6) the board violated New Hampshire law by discussing the application at a hearing without notice to the applicants or the public. We address each of these arguments and affirm.

         I. Facts

         The following facts are drawn from the trial court's order or are otherwise evident from the certified record. The plaintiffs own an undeveloped parcel of land in Plymouth with four other people (co-owners). The property's southwest border abuts Fairgrounds Road. Vehicles access the property through a "woods road," which originates from Fairgrounds Road near the property's southwest corner and runs northerly through the property.

         In 2009, the plaintiffs sought to partition the property in probate court. Pursuant to a settlement stipulation, the parties agreed to subdivide the property into a southerly 50-acre parcel, to which the plaintiffs would take title after the subdivision approval, and a northerly 199-acre parcel, to which the co-owners would take title. Attached to the stipulation was a hand-drawn sketch of the property that depicts the proposed lot lines separating the two parcels.

         As portrayed in the sketch, the smaller lot would encompass the southern portion of the woods road and most of the southwest boundary along Fairgrounds Road, while the larger parcel would retain a narrow corridor of land abutting Fairgrounds Road in the southwest corner of the property. The sketch also depicts a proposed new access to the larger parcel, wholly confined within its boundaries, beginning at Fairgrounds Road and running northerly until it intersects with the existing woods road. The settlement stipulation states, "It is understood that the sketch/plan is conceptual in nature and has not received State or Local Approvals." The stipulation required that the parties exchange quitclaim deeds within 30 days of receiving final subdivision approval.

         The Probate Court (Boyle, J.) approved the settlement stipulation. For several years, however, the parties disputed the requirements of the settlement stipulation and, in 2016, the plaintiffs filed a motion for contempt against the co-owners in the probate division of the circuit court for failure to submit a subdivision application. The Circuit Court (Rappa, J.) denied the motion but ordered the parties to file a subdivision application with the Plymouth Planning Board no later than December 1 of that year. The parties submitted a subdivision application to the planning board in November. The proposed subdivision map was consistent with the sketch attached to the settlement stipulation, including the proposed access way. The subdivision map also demarcated several wetlands areas.

         During four public hearings between February and June 2017, the planning board heard from the parties to the application. At the initial hearing, planning board members, an abutter, and the co-owners raised concerns about the impact the proposed access way would have on the wetlands. As a result, the board and the parties discussed possible alternative locations for the access way. The board continued the hearing and asked the parties to renegotiate the proposed lot lines to permit the relocation of the access way east of the wetlands. At the next hearing on the application, which occurred in April, the plaintiffs informed the board that they would not agree to relocate the access way and asked the board to approve the application as submitted. The co-owners and abutter again expressed concern about the impact of the proposed access way on wetlands. The board decided to conduct a site visit and solicit a written "synopsis" from a wetlands scientist before reaching a decision.

         In May, the board visited the property and, thereafter, received a letter from a certified wetlands scientist who had also inspected the property. At a subsequent public hearing that month, the board chair read the wetlands scientist's letter into the record, which stated, in relevant part, that the location of the proposed access way "has several large areas of wetlands and areas of high water table" and was not "suitable for the construction of a driveway." The letter further stated that another possible location for the access way, which has one large wetlands and "small areas with a high water table," would provide a "better alternative," and that the "best option would be to grant an easement on the existing access roadway." The letter also noted that the New Hampshire Department of Environmental Services (DES) would not "approve a wetlands crossing when there is an alternate location for an access or driveway with less wetlands impact." Based upon this information, the board continued the hearing and again asked the parties to "seriously consider" three options: (1) allow the co-owners to use the existing woods road; (2) relocate the boundary lines of the subdivision to accommodate the relocation of the access way "east of the major wetland," consistent with the wetlands scientist's second alternative; or (3) "run[] a right of way that accomplishes the same thing."

         At the last hearing on the matter, on June 15, the plaintiffs informed the board that they would not agree to any of the proposed alternatives. The board voted unanimously to deny the application and subsequently issued a written decision, citing the concerns the board raised about the wetlands, the board's site visit, the wetlands scientist's letter, and the plaintiffs' rejection of the three alternatives presented to them as reasons for the denial. The decision further stated that the board relied upon Article VIII, Section B of the Town's subdivision regulations, which allows the planning board to "impose requirements upon the subdivider in order to preserve and protect the existing features, . . . [and] other natural resources." Plymouth, N.H., Subdivision Regulations (PSR) art. VIII, § B (2002). The decision noted that the board considered wetlands to constitute "other natural resources" under the regulation.

         The plaintiffs appealed the planning board's decision to the superior court, which upheld the decision. This appeal followed.

         II. Standard of Review

         At the outset, we first explain the applicable standard of review. The trial court's review of a planning board's decision is governed by RSA 677:15 (2016), which provides that the trial 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 [the board's] decision is unreasonable." RSA 677:15, V. Thus, the trial court's review is limited. Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 504 (2018). The trial court must treat the factual findings of the planning board as prima facie lawful and reasonable and cannot set aside its decision absent unreasonableness or an identified error of law. Id. The appealing party bears the burden of persuading the trial court that, by the balance of probabilities, the ...


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