New Hampshire Supreme Court Upholds Grant of Conditional Use Permits Over Citizens Group Objections
The Supreme Court of New Hampshire (“Court”) recently affirmed approvals of conditional-use permits (CUPs), including one for development in a wetland buffer, over the objections of a Citizens Group. In Appeal of Beal, No. 2022-0182 (N.H. Oct. 12, 2023), the Court affirmed a decision by the Housing Appeals Board (HAB), which had reversed a decision by the Zoning Hearing Board of Adjustment (ZBA). The ZBA, in turn, had reversed a decision by the Portsmouth Planning Board (PPB) that had granted permit approvals to an entity that sought to redevelop a property that contained a wetland, among other constraints.
Iron Horse Properties, LLC (“Iron Horse”) proposed to construct three multi-family apartment buildings on a parcel that had fallen into disrepair, owing to its previous uses for railroad and industrial use. The parcel also contained a tidal wetland buffer that had been disturbed and become overgrown with invasive species. The proposed redevelopment involved encroachment on the wetland buffer, while also adding stormwater treatment and a setback from an adjacent railroad. Iron Horse sought, and received approval from the PPB for, a site review permit, a lot line revision permit, a conditional use permit for shared parking, and a wetland CUP.
James A. Beal and 28 other local property owners and concerned citizens (the “Citizens Group”) appealed the PPB decision to the ZBA, citing nine bases of error. The ZBA reversed the PPB’s approvals of the CUPs, and later denied Iron Horse’s motion for rehearing. Iron Horse appealed to the HAB, which reversed the ZBA as to six of the Citizens Group’s claims and dismissed the other three.
The Citizens Group appealed to the New Hampshire Supreme Court. Its appeal turned on (1) whether Iron Horse’s project met the six criteria for a wetland CUP under section 10.1017.50 of the Portsmouth Zoning Ordinance, and (2) whether Iron Horse’s permits were barred under New Hampshire precedent set forth in Fisher v. City of Dover, 120 N.H. 187 (1980).
The Court began by discussing the standard of its review, noting that it was required to uphold the HAB’s orders unless it contained errors of law, or the order was unjust and unreasonable based upon a preponderance of the evidence. The HAB, in turn, was required to treat the ZBA’s factual findings as prima facie lawful and reasonable, and not to reverse or change a decision unless it contained errors of law, or the decision was unreasonable under the evidence before it.
The Citizens Group alleged that Iron Horse’s project failed to meet the criteria for a CUP. While it claimed there was doubt that the project satisfied all six criteria, the group expressly challenged only two of the criteria. Accordingly, the Supreme Court held that the group had waived any appeal as to the other four criteria.
Specifically, the Citizens Group challenged criteria (2) and (5) of section 10.1017.50 of the Portsmouth Zoning Ordinance. Criterion (2) provided that there be no alternative location outside the wetland buffer that was feasible and reasonable for the proposed use. Criterion (5) required that the proposal be the alternative that caused the least adverse impact to areas and environments under the jurisdiction of the ordinance.
As to criterion (2), the Citizens Group alleged that a professional engineer had prepared a diagram that irrefutably showed it was feasible to put the apartment buildings on the site at a location outside the wetland buffer, although the buildings appeared to be smaller than those proposed by Iron Horse. Iron Horse argued the operative question was whether there was a feasible alternative to implement the project as proposed.
Although both parties cited to Malachy Glen Associates v. Town of Chichester, 155 N.H. 102 (2007), the Court found that case of little guidance because it involved a different question and addressed a superseded standard of hardship for variances but the case at hand involved a CUP. Moreover, the Court noted that a PPB member had inquired whether the project could be moved outside the buffer. While the Citizens Group alleged Iron Horse waived its claim that doing so would render the project economically infeasible by not raising it until the HAB appeal, the Court disagreed, finding that Iron Horse had said scaling back the project in that manner would render the project not viable. Accordingly, the Court concluded that Iron Horse had argued infeasibility before the PPB.
Additionally, the record showed that PPB had seen four previous versions of Iron Horse’s project, which rendered it reasonable for the PPB to rely on Iron Horse’s representation that scaling down the project to avoid the wetland buffer would not be economically feasible. Thus, the Court found no error as to criterion (2).
Likewise, the Court found no error regarding criterion (5). The record showed that Iron Horse’s application had summarized how the four prior versions of its plan would affect the wetland buffer, which gave the PPB a basis to conclude the last-proposed project was the one with the least adverse impact on the buffer.
The Citizens Group further argued that the HAB had concluded the Iron Horse plan was “not unreasonable” when the standard to be applied was whether the six criteria were met. In response, Iron Horse contended that the group challenged language that addressed not the criteria, but the burden of proof. The Court agreed with Iron Horse, finding that the HAB had fully reviewed the record and concluded the PPB acted appropriately in deciding on the wetland CUP.
Next, the Court rejected the Citizens Group’s argument that the PPB had improperly treated the six criteria as simply factors and went on to use a “benefits vs. detriments” standard, under which they would approve the CUP if there were a net overall benefit to the environment after weighing the pros and cons of the project. The Court noted that the PPB discussion on the wetland CUP addressed whether the ordinance permitted development in the wetland, as well as discussion of the six criteria to do so. Thus, the Court found adequate evidence to support the PPB’s decision and to conclude the HAB did not err in upholding the PPB’s grant of the wetland CUP.
Further, the Court rejected the Citizens Group’s claim that the HAB improperly substituted its judgment for that of the ZBA based on Fisher v. City of Dover. The Court held in Fisher that after rejecting a variance application, a zoning board may not review subsequent applications unless a material change of circumstances affected the merits. The Citizens Group contended that Iron Horse had engaged in subterfuge in how it measured the height of buildings in its proposals, having previously been denied for a height-limitation variance. The Court found the record supported Iron Horse’s arguments that there was no such trickery and the Citizens Group’s claim that the latest version of the project had no substantial difference regarding the height issue was belied by the record.
Based on the record, the Court concluded that the HAB’s order was not legally erroneous or unreasonable, and thus affirmed the HAB’s decision.
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