The town’s zoning ordinance includes a wetlands conservation district, which prohibits structures and impermeable surfaces (paved roads) unless a special use permit is granted by the planning board. The Cherrys owned nearly 85 acres, which they proposed to subdivide into 19 house lots. The proposed subdivision included a paved road that required filling approximately 10,500 square feet of wetlands. Therefore, the Cherrys applied for a special use permit, which would allow the paved road if four conditions in the zoning ordinance were met, including minimizing detrimental impact on the wetlands and a finding that no alternative route is feasible that wouldn’t cross a wetland or have a less detrimental impact on wetlands.
At the public hearing on the special use permit, the planning board heard from two experts for the Cherrys. One said a safe road couldn’t be designed that would avoid both wetlands impact and meet the needs of the subdivision, but he also presented an alternate road design that would reduce the impact on the wetland and the wetland buffer. The buffer is the area within 100 feet of the wetland. The second expert testified, however, that this alternate road design increased safety concerns. The planning board also heard testimony from the chair of the town’s conservation commission, who said a road could be designed with reduced wetlands and wetlands buffer impact, although it would reduce the number of house lots available. When asked by a member of the planning board if a safe alternative road with reduced wetlands impact were possible, the Cherrys’s second expert said he had not analyzed other designs.
The planning board then asked the Cherrys to submit a road design that considered options to minimize wetlands buffer impact, but they declined to do so. As a result the planning board denied the special use permit application and, ultimately, the subdivision application because it didn’t address the impact on the wetlands buffer and provide for mitigation, and also because it failed to show there was no feasible alternative as required by the wetlands conservation district ordinance.
The Cherrys appealed the decision to the superior court, which held that the planning board’s decision was unreasonable because it was based on the personal opinion of the conservation commission chair as to where the road should be located and because the evidence before the board did not support the board’s rejection of the applicants’ road layout. The trial court supported its decision in part upon the fact that the Wetlands Board had issued a wetlands permit for the project.
The town appealed the trial court’s decision, and the Supreme Court reversed that decision, holding that the planning board’s decision to require the Cherrys to show that the design of the proposed road would minimize detrimental impact on the wetlands buffer and that no alternative design was less detrimental was not unreasonable, based upon the requirements of the wetlands conservation district ordinance.