DENIS GIRARD & a.
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.
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.
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.
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.
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.
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.
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.
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."
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.
plaintiffs appealed the planning board's decision to the
superior court, which upheld the decision. This appeal
Standard of Review
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 ...