Greatwoods Unity Forests, LLC (Greatwoods) applied to subdivide a 159-acre lot fronting Middletown Road in Roxbury into three lots. Two of the lots would be about 6 acres each and, with a remainder parcel of 148 acres.
It was reported to the Planning Board that the zoning requirements would allow the lot to be divided into up to 31 lots, although just the two plus remainder were proposed, that would allow for two-family residences to be built on each, for a total of six possible households. At the meeting, the town’s fire chief and the Board’s chairman expressed concern about added traffic on Middletown Road, which “becomes virtually impassable during mud season,” according to the chair. The surveyor for the property, who is a road agent in another municipality, said, “[i]f Middletown Road is already considered to be substandard, the Town should address that matter on its own initiative.”
The Board denied the application, citing the expense to maintain Middletown Road, let alone with additional usage. It called the road unsafe and said the effects of added traffic were too much a burden to accept. In its memorandum of decision, the Board listed conditions making the road dangerous for new households, including its dead end without a passable outlet, narrow sections, and absence of guardrails and sidewalks. It said, “Middletown Road is at its capacity to safely support the present density of residencies.” It cited the state law that says, in part, a town can block “subdivision of land as would involve danger or injury to health, safety, or prosperity by reason of the lack of water supply, drainage, transportation, schools, fire protection, or other public services.” RSA 674:36, II(a).
Greatwoods appealed to the Housing Appeals Board (“HAB”), arguing that the decision was illegal and unreasonable as not based on facts found in the record. For example, Greatwoods said that since three of the four voting members of the Board lived on Middletown Road this meant their personal opinions clouded their decision making. Counsel for the town argued to the contrary that board members appropriately their personal, firsthand knowledge, not opinion, to inform the decision making. After a hearing and site walk, the HAB reversed the Board’s decision, finding for Greatwoods. The Town of Roxbury appealed to the NH Supreme Court.
The Supreme Court had to assess whether the HAB had wrongfully “substituted its judgment for that of the Board,” or erred in determining the Board improperly applied the RSA 674:36 standard pertaining to “scattered or premature development,” or incorrectly concluded that the Board’s denial was overly concerned about future development.
Regarding the Town’s argument that the HAB substituted its judgment for the Board’s instead of containing itself to whether the Board’s decision was supported by the record, the Court agreed with the Town that “[t]he scope of the HAB’s review of a planning board’s decision is not to determine whether it agrees with the board’s findings, but, rather, is limited to whether there is evidence in the record upon which the planning board could have reasonably based its findings,” (citing Appeal of Chichester Commons, 175 N.H. 412, 415-16 (2022)). The Court said that not only did the HAB “substitute its judgment” by relying on its own observations rather than the factual records, but also by “discrediting the personal knowledge of the Board members.” While a planning board cannot base a decision on vague concerns or mere opinion (See, Ltd. Editions Properties v. Town of Hebron, 162 N.H. 488, 497 (2011)), it can consider its members’ own knowledge and familiarity with the region. Nestor v. Town of Meredith, 138 N.H. 632, 636 (1994). The Court said what the planning board did here is more like Nestor, relying on personal observations, not mere personal opinion, especially because it was supported by the fire chief’s testimony.
When addressing the argument by Greatwoods’s the HAB was correct that the Board had no basis to deny the application as “premature or scattered,” the Court pointed out that the Town has a provision in its subdivision regulations (§ 403) incorporating RSA 674:36, II(a), which addresses providing against subdivisions that would be “scattered or premature subdivision” that risk “danger or injury to health, safety, or prosperity.” Pointing to its decision in Garipay v. Town of Hanover, the Court found again for the Town. That case said the Board must determine what amount of development would create a hazard as related to the services, including access for public safety vehicles and connection to public utilities. Garipay, 116 N.H. 34, 36 (1976). The HAB said the Board never addressed this test, but the Court found on appeal that the Board’s conclusion that “The subdivision would increase danger to public health and safety, life and property, and is therefore denied” does directly address it. After all, the Court says that prematurity is a relative, not absolute, concept. Id.
On the issue of whether HAB erred by “concluding that the Board’s decision to deny the subdivision application was based on a concern about future development,” the Court held, that “any denial of subdivision approval will naturally have the secondary effect of limiting growth.” Ettlingen Homes v. Town of Derry, 141 N.H. 296, 298 (1996).
The Supreme Court reversed the HAB’s decision and reinstated the Board’s denial of the subdivision application.
*This decision is a final order of the court. Final orders are distinguished from court opinions in that they decide the merits of a case but do not create binding precedent. Final orders may be cited in briefs but only if identified as a non-precedential order. They can be helpful as guidance but are not law. See N.H. Sup. Ct. Rules 12-D(3), 20(2).