A Case Study in Zoning and Regional Impact Disputes
Anthony v. Town of Plaistow: A Case Study in Zoning and Regional Impact Disputes
In the recent decision of Anthony v. Town of Plaistow, the New Hampshire Supreme Court was faced with a property dispute concerning a site plan application for a commercial development project. The plaintiffs, Richard Anthony and Sanaz Anthony (the “Anthonys”), were property owners who lived adjacent to a proposed development site, and they raised several legal challenges to the approval of the site plan by the Town of Plaistow’s Planning Board.
The planning board’s decision to approve the commercial site plan came after an extensive site review process. The process involved multiple public hearings, a site visit, technical reviews by the Town’s outside engineering consultant (Keach-Nordstrom Associates), and consultations with the Town’s Conservation Commission. Throughout this rigorous process, the planning board considered a variety of factors such as the proposed development’s impact on the adjacent tracts and on regional resources. Moreover, the planning board also considered potential impacts to the town’s traffic, surface and groundwater quality, and wetlands areas.
The Anthonys previously appealed the planning board’s decisions to the superior court on three separate occasions, but only one of the superior court’s rulings was appealed to the New Hampshire Supreme Court. At the high court, the Anthonys argued that the superior court had erred by: (1) ruling that the superior court lacked subject matter jurisdiction to address Anthony’s argument that the proposed use was not permitted in the zoning district; (2) issuing a finding that the planning board made a sufficient regional impact determination pursuant to RSA 36:56; and (3) ruling that the planning board’s decision granting site plan approval was otherwise lawful and reasonable.
To support their jurisdictional claim, the plaintiffs relied on RSA 677:15, I-a(b), which provides an opportunity for parties to exhaust their administrative remedies on a zoning issue if they have not already sought review from the Zoning Board of Adjustment (“ZBA”). However, in this case, the plaintiffs had previously appealed the planning board’s decision to the ZBA, but their appeal was dismissed due to the court’s lack of jurisdiction. Additionally, if the superior court had considered the merits of the zoning issue, it would have improperly granted the Anthonys a second appeal of the ZBA’s determination. On the above grounds, the Court confirmed that the superior court did not err in declining to consider the merits of the zoning issue.
Another argument raised by the Anthonys concerned the planning board’s regional impact determination. The Anthonys claimed that the planning board failed to make a determination of regional impact as required by RSA 36:56. A “development of regional impact” is defined as “any proposal before a local land use board which in the determination of such local land use board could reasonably be expected to impact on a neighboring municipality” due to various enumerated factors. RSA 36:55 (2019). The Anthonys argued that the planning board’s decision was void from the beginning (or void “ab initio”) due to this failure. However, the Supreme Court disagreed, noting that the planning board had implicitly found that the project did not have a potential for regional impact. The superior court had relied on evidence presented during the public hearings, including the testimony of the Town’s Planning Director, whom stated that he had never worked on a commercial development causing a regional impact and that the traffic impact from the proposed project was projected to be only minimal. Based on this evidence, the Court concluded that the planning board adequately considered the potential for regional impact, and its decision was reasonable under the circumstances. With this finding in hand, the Court confirmed that the planning board did not fail to comply with the statutory notice requirements found in RSA 36:56 and RSA 36:57.
Lastly, the Anthonys argued that the planning board’s decision was unlawful and unreasonable on various grounds including that: (a) locating an industrial use next to a residential neighborhood is per se unreasonable; (b) there will be insufficient visual buffers between the site’s equipment and the adjacent residents; (c) the industrial washing facility will impact the quality of the aquifer, wetlands, and ground and surface water; (d) the proposed groundwater monitoring system does not address or resolve potential contamination issues; and (e) the commercial project threatens the adjacent owners’ quiet enjoyment of their respective properties. However, the Supreme Court found that the planning board had fully addressed these concerns throughout the rigorous review process. The Court noted that the board had carefully considered the adjacent owners’ concerns and interests, and thus the decision was neither unreasonable nor legally erroneous. Relying on the record developed in the superior court, the Supreme Court determined that the superior court did not err in finding that the town’s planning board acted reasonably in approving the commercial site application.
In summary, Anthony v. Town of Plaistow involved a dispute over the approval of a site plan for a commercial development project. After a careful review of the record in the underlying proceedings, the Supreme Court of New Hampshire upheld the superior court’s decision, concluding that the zoning issue was not eligible for consideration in the subject appeal and that the planning board had adequately considered the potential for regional impact while addressing the various concerns of the property owners residing adjacent to the proposed project.
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