Posted by: Patricia Salkin | June 17, 2017

NH Supreme Court Upholds Site Plan Application for a Propane and Fuel Oil Distribution Facility

Intervenor Huckleberry Propane & Oil, LLC, appealed an order of the Superior Court reversing a decision of the planning board for the defendant, the Town of Wilmot, to grant Huckleberry’s site plan application. The site plan application at issue was for a propane and fuel oil distribution facility, which would contain four 30,000-gallon propane storage tanks, one 20,000-gallon heating oil tank, one 10,000-gallon kerosene tank, and a forty-foot by eighty-foot garage with five bays. The plaintiffs were five individuals who lived on Chase Pond, which was downstream from the proposed facility. The only alteration that the New Hampshire Department of Transportation (DOT) required of Huckleberry was to pave the end of the driveway. The town’s fire chief also recommended that the driveway be paved for the entire depth of the property in order to provide greater road stability for fuel trucks and a safer entry and exit to and from the property.
The final plans submitted by Huckleberry complied with these requirements, and provided that the pavement specifications would comply with town standards. The board also conditioned its approval upon the access road being “designed to withstand the weight of fully loaded trucks and tankers,” and being “maintained at all times to ensure access by emergency vehicles.” The trial court reversed the board’s finding that Huckleberry had made adequate provisions for traffic circulation, entrances and exits, traffic flow, and compatibility with existing streets, faulting it for “not requiring traffic studies or engineering analysis regarding the impact truck traffic may have on traffic safety on Route 11.”
On appeal, the court found that in reversing the board’s finding that Huckleberry had made adequate provisions for traffic circulation, entrances and exits, traffic flow, and compatibility with existing streets, the trial court improperly engaged in de novo review of the record. Here, nothing in the site plan regulations required the applicant to conduct a traffic study. Additionally, the board considered a traffic study, as well as evidence concerning the present use of the access road by large trucks and the number of anticipated trips by trucks under Huckleberry’s proposed use, in assessing whether Huckleberry had made adequate provisions for traffic circulation, entrances and exits, traffic flow, and compatibility with existing streets. The record also indicated that the town’s fire chief worked closely with Huckleberry’s fire safety consultant, as well as with the State Fire Marshal’s Office, in analyzing and recommending fire protection measures to be implemented in the design of the proposed facility. Huckleberry incorporated all of the recommendations of the fire chief and the State Fire Marshal’s Office in its proposed design. Accordingly, the court reversed the trial court’s order reversing the board’s approval of the application.
Ware v Town of Wilmot, 2017 WL 2350437 (NH 5/30/2017)


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