Superior Court Did Not Err when it Dismissed the Plaintiffs’ Untimely Zoning Appeal, and when it Concluded that the Planning Board made a Sufficient Regional Impact Determination

Richard Anthony & a. v. Town of Plaistow
Supreme Court of New Hampshire Case No. Rockingham 2021-0410
Tuesday, May 16, 2023

The Supreme Court of New Hampshire heard this case on appeal from the Superior Court.

Milton Real Properties of Massachusetts, LLC (hereinafter “the intervenor”) made an application to Plaistow’s Planning Board (hereinafter PB) to consolidate two adjacent lots in Plaistow's commercial zoning district and to receive site plan approval for a proposed construction equipment rental and maintenance facility, a wash building, and a display and storage area. Richard and Sanaz Anthony (hereinafter “the plaintiffs”), informally expressed some displeasure about this proposal, but did not appeal the February 6, 2019, code enforcement officer determination that the proposed commercial uses were permitted under the zoning ordinance.

The PB conditionally approved the site plan in June of 2019, thereby adopting the favorable code enforcement officer’s zoning determination. Plaintiffs appealed that decision to the Superior Court. The Superior Court held that because the PB’s approval was conditional, the Court lacked jurisdiction over the site plan appeal, and remanded to the PB. Upon further clarification the Superior Court also ruled that it lacked jurisdiction to adjudicate the zoning issue until the Zoning Board of Adjustments (hereinafter ZBA) rendered its decision on the zoning questions.

The plaintiffs did not appeal that decision.

When the PB issued its final approval decision, the plaintiffs appealed to the ZBA challenging the zoning determination that the project was a permitted use of land in the zoning district. The ZBA dismissed that appeal for lack of jurisdiction because the plaintiffs filed it in an untimely fashion. The plaintiffs moved for a rehearing and when that was denied, they appealed the ZBA’s dismissal to the Superior Court. The Superior Court dismissed the ZBA appeal based on untimeliness, ruling that both the Court and the ZBA lacked subject matter jurisdiction. Plaintiffs did not appeal this dismissal and that became a final judgment.

At the same time that they filed their unsuccessful ZBA appeal, the plaintiffs filed an appeal in the Superior Court, challenging the PB’s approval of the intervenor’s site plan for the same reasons they did in their appeal to the ZBA. However, as before, the Superior Court ruled that the untimeliness of the plaintiffs’ ZBA appeal meant that they had failed to exhaust their administrative remedies with the ZBA; additionally, it held that the PB had implicitly found that the proposed development would not have a regional impact and thus was compliant with RSA 36:56, and that the plan was reasonably considerate of abutters’ interests. When the Superior Court denied the plaintiffs’ motion to reconsider, they appealed to the Supreme Court of New Hampshire.

The plaintiffs argued that contrary to the Superior Court’s ruling, the zoning issue was properly before the court. However, under RSA 677:15, I-a, anyone who takes issue with a PB decision regarding a plat or subdivision may file a petition in the Superior Court within 30 days of the Board’s official vote, except for PB decisions that are appealable to the ZBA under RSA 676:5, III. The Court ruled the zoning issue was not properly before the Court because the ZBA had previously ruled the appeal of the original zoning determination was untimely, and although the plaintiffs could have challenged the jurisdictional determinations of the ZBA and superior court they elected no to do so, and the superior court’s decision became final in May of 2021.

The plaintiffs also argued that the Superior Court erred in concluding that the PB made a proper regional impact determination. A local land use board must promptly review applications and “determine whether or not the development, if approved, reasonably could be construed as having the potential for regional impact.” RSA 36:56, I. The Court found that the PB had satisfactorily reviewed any potential regional impact issues in compliance with that statute.

The plaintiffs also argued that the decision was unlawful and unreasonable for five reasons: first, because the lots in question were next to a residential neighborhood; second, because there were not enough visual buffers between two areas; third, because the ground and surface water, wetlands, and aquifer could potentially be impacted by the placement of the washing facility; fourth, because the potential contamination issues caused by the washing facility would not be addressed or resolved by the groundwater monitoring system in place; and finally, because the proposed project could affect the abutters’ quiet enjoyment of their own properties. Based on the rigorous reviewing process the PB applied to the site plan, including reviews by the town’s outside consultant and its Conservation Commission, the Court ruled against the plaintiffs on all five issues.