Limited Editions Properties proposed building a subdivision on a 112.5-acre parcel it owned which would have required construction of a 2,600-foot road at a 10% grade for at least 1,600 to 1,700 feet, including a sharp “switchback” with a 150-goot curve radius. The road would have also required the installation of three substantial retaining walls, topped with metal fences, all uphill from Hebron Bay. Before seeking the appropriate state and federal permits to construct the project, Limited Editions approached the Hebron Planning Board for preliminary conditional approval of the project’s “overall concept.”
The Board declined to engage in a “bifurcated” process of providing a preliminary approval, then reviewing the project after state and federal permits were obtained, deciding instead to either conditionally approve or deny the application. Public hearings were held, then the Board entered into a discussion about the proposal and raised a number of issues members had with the project, including aesthetics, safety concerns, and environmental concerns related to potential erosion and damage to Hebron Bay, particularly during construction of the roadway. For those reasons, Board members voted 3-2 to deny the application. The developer appealed to the superior court, which upheld the Board’s decision, and this appeal followed.
Petitioner charged that the board had failed to provide a record for meaningful review; that the Board had denied it a full and fair opportunity to be heard; that the trail court erred in concluding that a preliminary conditional approval would preclude the Board from subsequent review of the project; and that the trial court had erred in finding that the Board acted reasonably in denying the application. The court rejected the contention that the trail court had rendered a legal ruling regarding the Board’s ability to reconsider the application later in the process if it provided a conditional approval. Rather, the appellate court held that the trial court was simply articulating the Board’s concerns and not actually making any kind of legal decision regarding the conditional approval ability. Thus, the appellate court dispensed with that contention, and engaged each of the petitioner’s questions in turn, ultimately upholding the trial court’s and the Board’s decisions.
On the question of the record, plaintiffs charged that the Board did not have an adequate record that would enable it to approve or deny the application, based on the standard set in Motorsports Holdings v. Town of Tamworth, 160 N.H. 95 (2010). However, the court noted that Motorsports involved a planning board decision which gave insufficient written information on the reasons for denying the application; this was distinguishable from the present case because the Hebron Board had given at least three concrete reasons for denying the permit – aesthetics, safety, and environmental concerns. Further, the Board had raised these concerns in a deliberative session and described those same reasons in its decision to deny the application. For those reasons, the court held that the Board acted with a sufficient and adequate record, and that it gave proper reasons for its decision to deny the application.
On the matter of whether the developer was afforded a full and fair hearing, the trial court had found that the board had not prevented the petitioner from introducing information to refute its concerns; that the petitioner could have sought the federal and state permits without coming to the Board for preliminary conditional approval; and that the board considered the possibility of a conditional approval based on the information provided by the developer. The appellate court upheld these findings, noting that the petitioner had ample opportunity to present the Board with additional information to address its concerns and that the Board was within its rights to refuse to engage in a bifurcated review that would have required providing approval before and after the petitioner obtained federal and state permits. For these reasons, the appellate court held that petitioner was afforded a full and fair hearing prior to the Board’s decision to deny its application.
Finally, the court upheld the trial court’s finding that the Board had acted reasonably with regard to consideration of the application. The Board’s findings were supported by evidence in the record, such as the environmental impact report, which urged the need for oversight during construction to prevent environmental harms, and the evidence that the extraordinary length of the steeply-pitched road presented potential dangers, such as the risk that emergency personnel could not access the property in times of inclement weather. Further, the Board was unconvinced by some of the evidence, which did not fully address its concerns and which ultimately led to its decision not to approve. The court held that because the Board had considered the evidence available and determined the evidence did not address its articulated concerns, which were also supported by the record, it had engaged in a reasonable deliberative process and had not denied the application arbitrarily or capriciously. Therefore, the trial court did not err in upholding the Board’s decision as reasonable.
Limited Edition Properties, Inc. v. Town of Hebron, 2011 WL 4398544 (N.H. 9/22/2011)
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2011/2011101limited.pdf
