New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Denial of Site Plan Based on Board’s ‘Detailed Findings;’ Bias Claim Must Be Raised at ‘Earliest Possible Time’

Bayson Properties, Inc. v. City of Lebanon
No. 2002-538, 10/24/2003

The Lebanon Planning Board denied the site plan application of Bayson Properties, Inc., which owned land upon which Hannaford Brothers Co. proposed to construct a 56,000 square foot grocery store and 302-space parking lot. Reasons for denial were based upon the applicant’s failure to comply with landscaping and traffic regulations. The regulations required landscaping around the perimeter of the parcel, in the parking lot and around buildings to meet a number of objectives, including filtering noise and air pollution, creating privacy and mitigating aesthetic impacts. Also, site plan regulations required wider buffers in cases where the board determines that “special circumstances associated with the parcel” make the wider buffers necessary, including commercial development abutting residential development.

The proposed grocery store site was less than 50 feet from an elder care facility and abutted other residential uses. The board determined that a 25-foot landscape buffer was necessary, as well as an additional buffer to mitigate noise and pollution impacts. The plaintiffs objected to the additional buffer and argued that the 25 foot buffer was adequate to protect abutters from noise. The plaintiffs proposed to limit truck deliveries to 5 a.m. to 9 p.m. But the board noted that the applicant proposed to locate the grocery store on the portion of the site most closely abutting the residential uses and concluded that the applicant’s proposed voluntary limitations on truck deliveries was unenforceable. The board denied the site plan application because the applicant failed to satisfy the city’s landscaping and traffic regulations. Upon appeal, the plaintiffs argued that the planning board’s application of the regulations was unreasonable, that the 25 foot buffer was adequate for mitigating noise and that the additional buffer was unnecessary.

The trial court had found that “in light of … problems with the plaintiffs’ voluntary restrictions, any one of which would be enough to support a finding of reasonableness on the board’s part, … the board’s finding that the restrictions would not fully remediate potential noise concerns, thus justifying the imposition of additional buffers, was reasonable.” The Supreme Court upheld the trial court’s finding of reasonableness.

The plaintiffs argued that the planning board held them to such an impossibly high burden to satisfy the site plan regulations that it amounted to a rezoning of the property to bar all commercial use. But the Court said that the planning board had heard sufficient evidence upon which to base its decision to deny the application for failure to satisfy the regulations. The Court said, “The board’s decision contains detailed findings of non-compliance with the site plan regulations.” The Court added, “There is no indication in the board’s decision that the project was denied because it was commercial in nature. To the contrary, the board provided the plaintiffs with ample input and guidance for bringing the application into compliance with the site plan regulations.”

The plaintiffs argued that the trial court applied the wrong standard of review of the planning board’s decision, stating that the trial court was wrong to rely on the standard provided in RSA 677:6, which applies to zoning boards of adjustment. Under that standard, the trial court begins its review of the board’s decision with the presumption that the decision was lawful and reasonable. The plaintiffs argued that the standard provided in RSA 677:15, which governs appeals of planning board decisions, is less deferential to the board’s decision and entitles the plaintiffs to a de novo (new) hearing on the issues in the trial court. But the Supreme Court disagreed. “Although the language of the two provisions is somewhat different, we have consistently applied the same standard of review in appeals brought under RSA 677:6 and RSA 677:15: the burden of proof is on the party seeking to set aside the decision of the zoning board or planning board to show that the decision is unlawful or unreasonable.” The Court added, “While additional evidence may be introduced in the trial court, there is no trial de novo.” The Court said the purpose for permitting the trial court to receive additional evidence was to “assist the court in evaluating the action of the board,” not to give the appealing party a trial de novo.

The plaintiffs also argued in the trial court that the acting planning board chairman had prejudged the site plan application in that she opposed commercial use of the applicant’s property. But the trial court ruled that the plaintiffs failed to raise the issue of bias “at the earliest possible time in the proceedings before the board” and, as a result, had waived the issue. Upon appeal to the Supreme Court, the plaintiffs argued that they were statutorily prohibited from raising the issue before the planning board because RSA 673:14 provides only for a “member or another member of the board” to request that the board take an advisory vote on the question of disqualification of a member. The Court disagreed, finding that the statute’s plain meaning governed “only the process by which the board votes to exclude participation by a member once the issue of disqualification has been raised. The statute does not place restrictions on who may object to the participation of board members; the plaintiffs were not statutorily prohibited from raising the issue.”

The plaintiffs also claimed they raised the issue as soon as they became aware of it, but the Court pointed out that the planning board’s minutes reflect that at the first public hearing on the application the acting chairman “directly addressed her participation in the board’s recommendation to the [city] council to rezone the area … including the plaintiffs’ property.” The minutes state that the acting chairman assured the planning board and the applicant that, though she voted for rezoning, she could chair the site plan review fairly and impartially. The minutes also show that she asked the applicant and any others at the hearing if they “had an issue believing that any member of the planning board was prejudiced … No such objections were raised.”

The plaintiffs claimed that they raised an objection at a later public hearing, but both the trial court and Supreme Court said the plaintiffs’ comments at the later hearing “have questionable merit as a legitimate objection,” but even if they were a legitimate objection, “[w]aiting until after 11 hours of hearings held over three months to raise a concern about alleged bias of board members does not fulfill the plaintiffs’ obligation to raise the issue at the earliest possible time.”

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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