Appeal of Chichester Commons, LLC

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Housing Appeals Board
No. 2021-0476
APPEAL OF CHICHESTER COMMONS, LLC
(New Hampshire Housing Appeals Board)
Argued: June 21, 2022
Opinion Issued: September 2, 2022
Orr & Reno, P.A., of Concord (John L. Arnold on the brief and orally), for
the petitioner.
Upton & Hatfield, LLP, of Concord (Nathan C. Midolo on the brief and
orally), for the respondent.
DONOVAN, J. The petitioner, Chichester Commons, LLC, appeals an
order of the Housing Appeals Board (HAB) affirming a decision of the planning
board for the respondent, Town of Chichester (Town), denying the petitioner’s
request for a waiver of the density requirement set forth in the Town’s zoning
ordinance. The petitioner argues that the HAB erred by affirming the board’s
decision because, in 2015, the board granted the petitioner a density waiver for
a similar elderly housing project that the petitioner had proposed for the same
property. We conclude that the 2015 density waiver does not apply to the
current version of the petitioner’s proposed elderly housing project and was not
binding upon the board. Accordingly, we affirm the HAB’s decision.
I. Facts
The HAB found, or the record supports, the following facts. The
petitioner owns a parcel of property located in the Town’s Commercial Village
(CV) District. The property is approximately 5.5 acres and comprises two lots
that have been merged. In 2015, before the two lots were merged, the
petitioner proposed to build an elderly housing facility on one of the lots —
which was 2.369 acres — and a 10,000 square foot retail building on the other
lot. At the time, the Town’s zoning ordinance required “a minimum of two (2)
acres for the first two family dwelling unit[s] with an additional ½ acre for each
additional family dwelling unit” located in the CV District. Chichester, N.H.,
Zoning Ordinance, art. II, § 2.04(F)(VIII)(11)(b) (2008). The ordinance also
included an innovative land use control that authorized the board to “waive
particular [zoning] requirements” under certain circumstances. Chichester,
N.H., Zoning Ordinance, art. II, § 2.04(F)(XIII) (2008); see RSA 674:21, II (Supp.
2021) (“An innovative land use control ordinance may provide for
administration [of zoning ordinances] . . . by the planning board . . . .”).
Because the petitioner proposed to build the facility on 2.369 acres,
whereas the Town’s zoning ordinance required twenty-two acres, the petitioner
requested a waiver of the density requirement from the board. The petitioner
informed the board that, if the waiver were to be granted, the petitioner would
then submit a formal site plan for the board’s consideration. The board
granted the density waiver. However, due to financing issues, the petitioner
did not move forward with the project.
In 2018, the petitioner altered the design of the project. In lieu of the
elderly housing facility, the petitioner proposed to build a 14-unit affordable
housing complex on the 2.369 acre lot. Because the new design also did not
conform to the density requirement in the Town’s zoning ordinance, the
petitioner requested another density waiver from the board. The petitioner also
submitted a final site plan for the board’s consideration. The board granted
the waiver and approved the site plan. The board later granted the petitioner’s
request to reduce the number of units from fourteen to thirteen. However, the
petitioner did not move forward with the 2018 design.
In 2020, the petitioner proposed a third design of the project. Similar to
the original 2015 design, the petitioner proposed to build a 24-unit elderly
housing facility on the recently-merged 5.5 acre property. The petitioner’s new
design differed from the 2015 design in that it relocated the placement of the
proposed elderly housing facility, required fewer square feet, and excluded the
10,000 square foot retail facility that was proposed in 2015. Because the
petitioner proposed to reduce the number of units and build the facility on the
entire 5.5 acre property, rather than just the 2.369 acre lot, the new design
resulted in a lower density than the 2015 design.
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In October 2020, the petitioner filed a request to amend the site plan for
the affordable housing facility that the board approved in 2018. Specifically,
the petitioner requested approval for “(24) one bedroom 55+ apartments in lieu
of [the] previous 13 unit approved project.” In December 2020, the board
issued an order determining, without prejudice, that the petitioner’s request
was incomplete because it “incorrectly described the proposal as an ‘amended
site plan.’” The board explained that it considered the petitioner’s proposal to
be “a new application” and stated that “the [petitioner’s] application form,
plans, and notification materials should reflect it as such.”
Thereafter, the petitioner filed a site plan application proposing to
develop the 24-unit elderly housing facility. The petitioner also requested
another waiver of the density requirement “to permit the development of a 24-
unit multi-family structure on 5.5 acres.” By this time, the Town’s zoning
ordinance had been amended to require “a minimum of two and one half (2.5)
contiguous acres for the first two family dwelling unit[s] with an additional .5
acre for each additional family dwelling unit” as well as “one contiguous
buildable acre for the first unit and an additional one half (.5) contiguous acre
for each additional unit.” Chichester, N.H., Zoning Ordinance, art. II, §
2.04(E)(VIII)(11)(II)(b) (2019). Unlike the prior zoning ordinance, the amended
ordinance also required conditional use permits for multi-family housing.
Compare Chichester, N.H., Zoning Ordinance, art. II, § 2.04(F)(VIII)(11) (2008),
with Chichester, N.H., Zoning Ordinance, art. II, § 2.04(E)(VIII)(11) (2019).
The board discussed the petitioner’s request at three meetings, which
occurred between January and March 2021. At the meetings, the petitioner
argued that the board’s grant of the 2015 density waiver compelled it to grant
another waiver, given that the new design was less dense than the original
2015 design. The petitioner also argued that the 2015 waiver “was granted
without any stated expiration date” and that it “continue[d] to apply” to the 24-
unit elderly housing project. The board rejected these arguments and denied
the request on the grounds that the petitioner failed to demonstrate that the
waiver satisfied one of five waiver requirements: that granting the waiver “[b]e
reasonable and appropriate due to the scale and size of the proposed project.”
Chichester, N.H., Zoning Ordinance, art. II, § 2.04(E)(X)(6) (2019).
The petitioner appealed to the HAB, arguing that: (1) the 2015 waiver did
not expire and continued to apply to the petitioner’s proposed 24-unit elderly
housing facility; and (2) even if the 2015 waiver expired, stare decisis compelled
the board to grant the petitioner’s request for another density waiver. The HAB
rejected both arguments. With respect to the petitioner’s argument that the
2015 waiver did not expire, the HAB noted that “municipal planning is a fluid
concept based upon current conditions at the time an actual plan is filed with,
and reviewed by, a town or city Planning Board.” In rejecting the petitioner’s
stare decisis argument, the HAB concluded that the board was not bound by
its prior decisions to grant waivers, in part because “all three projects proposed
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by the [petitioner] are different which could reasonably impact the Planning
Board’s decision.” The HAB also determined that the petitioner failed to timely
appeal the board’s December 2020 decision requiring “a new application” and
that, “[b]y itself, this [was] grounds for denial of the requested relief.” The
petitioner filed a motion for rehearing, which the HAB denied for similar
reasons. This appeal followed.
II. Standard of Review
When reviewing a planning board’s decision, the HAB must uphold the
decision unless there was an error of law or the HAB is persuaded by the
balance of probabilities that the decision was unreasonable. See RSA
677:6, :15, V (2016); RSA 679:9, II (Supp. 2021); see also RSA 679:9, I (Supp.
2021) (“Appeals to the [HAB] shall be consistent with appeals to the superior
court pursuant to RSA 677:4 through RSA 677:16.”). The party seeking to set
aside the board’s decision bears the burden of proving that the decision was
unlawful or unreasonable. RSA 677:6; see RSA 679:9, I. The HAB must treat
the planning board’s factual findings as prima facie lawful and reasonable.
RSA 677:6; see RSA 679:9, I. The HAB’s review is not whether it agrees with
the planning board’s findings, but, rather, whether there is evidence in the
record upon which the planning board could have reasonably based its
findings. See Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497,
504 (2018).
Our review of the HAB’s decision is governed by RSA chapter 541. See
RSA 679:15 (Supp. 2021) (“Decisions of the [HAB] may be appealed to the
supreme court by any party in accordance with the provisions of RSA 541 as
from time to time amended.”). We will not set aside the HAB’s order unless we
are satisfied, by a clear preponderance of the evidence, that it is unjust or
unreasonable. See RSA 541:13 (2021). The HAB’s factual findings are
presumed to be prima facie lawful and reasonable. See id. When reviewing the
HAB’s findings, our task is not to determine whether we would have found
differently or to reweigh the evidence, but, rather, to determine whether the
HAB’s findings are supported by competent evidence in the record. See Appeal
of SEA (NH Community College System), 170 N.H. 699, 702 (2018). When, as
here, the HAB relied upon the record and made no independent factual
findings, our review is limited to determining whether the record supports the
HAB’s decision.
III. Analysis
The petitioner first argues that “the 2015 waiver did not expire” and that
it “continues to apply” to the proposed 24-unit elderly housing facility. We
disagree. To resolve the petitioner’s appeal, we must interpret the language of
the Town’s zoning ordinance. Similar to statutory interpretation, we construe
the words and phrases of an ordinance according to the common and approved
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usage of the language. Town of Carroll v. Rines, 164 N.H. 523, 526 (2013).
When the language of an ordinance is plain and unambiguous, we need not
look beyond the ordinance itself for further indications of legislative intent. Id.As an initial matter, the Town argues that the petitioner’s argument that
the 2015 waiver continues to apply to the petitioner’s proposed project is
untimely. We need not address the timeliness of the petitioner’s argument
because, even if it is timely, it fails on its merits. Assuming, without deciding,
that “the 2015 waiver did not expire,” we conclude that the 2015 waiver does
not apply to the current version of the petitioner’s proposed project.
When the 2015 waiver was granted, the Town’s zoning ordinance
provided:
[T]he [board] may waive particular requirements set forth in
this section where the [board] finds that a development is
better served by not adhering strictly to the provisions of this
section and where the applicant demonstrates that granting a
waiver would: [1] Not be detrimental to the public safety,
health or welfare, or cause injury or damage to other property
or fail to promote public interest; [2] Not vary the intent of the
Town of Chichester Master Plan; [3] Substantially ensure that
the goals, objectives, standards, and requirements of this
section are not compromised; [4] Be reasonable and
appropriate due to the scale and size of the proposed project;
and/or [5] Protect natural features that would otherwise be
impacted.
Chichester, N.H., Zoning Ordinance, art. II, § 2.04(F)(XIII) (2008) (emphasis
added). Although the Town has relocated this provision within the ordinance,
its language has not changed since the board granted the 2015 waiver. See
Chichester, N.H., Zoning Ordinance, art. II, § 2.04(E)(X)(6) (2019).
Based upon the common and approved usage of the language of this
provision, see Rines, 164 N.H. at 526, we conclude that the 2015 waiver
applies only to “the proposed project” that the board considered when it
granted the waiver. Chichester, N.H., Zoning Ordinance, art. II, § 2.04(F)(XIII)
(2008). We further conclude that the petitioner’s proposed 24-unit elderly
housing facility is not “the proposed project” that the board considered in 2015.
The 2015 waiver permitted the development of “up to 41 units on 2.369 acres,”
whereas the petitioner now proposes to build a “twenty four – one bedroom 55
plus apartment building” on 5.5 acres.
Since the board granted the 2015 waiver, the petitioner has not only
reduced the number of units, but also decreased the square footage of the
proposed facility from 13,500 square feet to 7,548 square feet and expanded
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the size of the property from 2.369 acres to 5.5 acres. In addition, the current
proposal places the facility in a different location on the property and omits the
10,000 square foot retail facility that was originally proposed in 2015.
Accordingly, although a less intensive proposal, the 2020 application
contemplates a different project footprint and different building configuration
and eliminates the 2015 proposal for retail, which removed a feature that
furthered an articulated development goal of the CV district. See Chichester,
N.H., Zoning Ordinance, art. II, § 2.04(F)(III) (2008). Although the petitioner
proposes to use the property for the same purpose — namely, for the
development of an elderly housing facility — and although the current proposal
requires less density than the 2015 proposal, the record demonstrates that the
current proposal is not “the proposed project” that the board considered in
2015, and, thus, the 2015 waiver does not apply to it.
Our conclusion that the 2015 waiver does not apply to the current
version of the petitioner’s proposal is further supported by the language of the
five factors set forth in the ordinance’s waiver provision. See Chichester, N.H.,
Zoning Ordinance, art. II, § 2.04(F)(XIII) (2008). These factors require the
board to consider, among other things, the potential impact of the proposed
development on, inter alia, public health, safety and welfare, or other
properties — an analysis that depends, at least in part, upon the current
conditions surrounding the proposed development. See id. Thus, when
evaluating a waiver, the board is required to assess the current impact of the
development on the community. The board’s role is not to compare the quality
of two different proposals submitted at different points in time or to determine
the degree of change to the surrounding community since the last proposal was
submitted. Because the petitioner’s current proposal is not the same as its
2015 proposal, the Town’s ordinance required that the board consider the
potential impact of the current proposal on the Town in light of any change in
circumstances since the 2015 waiver was granted. See id. Accordingly, we
conclude that the 2015 waiver does not apply to the 2020 proposal.
The petitioner next argues that, even if the 2015 waiver does not apply to
the petitioner’s proposed project, stare decisis compelled the board to grant the
petitioner’s 2020 request for another density waiver. We are unpersuaded.
Again, because the petitioner’s proposal for the 24-unit elderly housing facility
was not “the proposed project” that the board considered in 2015, the board
was required to consider the petitioner’s 2020 waiver request on its own merits,
apart from the 2015 waiver. See 8 Eugene McQuillin, The Law of Municipal
Corporations § 25:232, at 1177-78 (3d ed. 2020) (“In general, precedents are
not binding relative to the grant of exceptions or variances; each case is to be
determined on its own merits.”); cf. Heller v. Zoning Board of Adjustment of
Phila., 171 A.2d 44, 46 (Pa. 1961) (“Allowing only for exceptional circumstances
not apparent here, we hold that each case and each application [for a variance]
must be dealt with anew and apart.”); Board of Zoning Appeals of Alexandria v.
Fowler, 114 S.E.2d 753, 757-58 (Va. 1960) (“[I]n determining whether a
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variance for a particular piece of property shall be granted the Board must
consider each case on its own particular facts or merits.”). Although the board
was required to provide the applicant with written reasons for its decision, see
RSA 676:3, I, it was not, contrary to the petitioner’s argument, required “to
articulate [a] rational explanation for reaching a different result in 2020.”
We also reject the petitioner’s argument that the subsequent-application
doctrine articulated in Fisher v. City of Dover, 120 N.H. 187 (1980), applies
here. Fisher involved a challenge to a ZBA’s approval of a variance for a
proposal that was substantially identical to one it had previously denied.
Fisher, 120 N.H. at 188. The plaintiff in that case was an abutter who opposed
the project and objected to the ZBA’s consideration of essentially the same
proposal submitted by the same developer. Id. We held that “[w]hen a material
change of circumstances affecting the merits of the application has not
occurred or the application is not for a use that materially differs in nature and
degree from its predecessor, the board of adjustment may not lawfully reach
the merits of the petition.” Id. at 190. We therefore concluded that the zoning
board erred by reaching the merits of the second application “without first
finding either that a material change of circumstances affecting the merits of
the application had occurred or that the second application was for a use that
materially differed in nature and degree from the use previously applied for and
denied by the board.” Id. at 191.
Contrary to the petitioner’s argument, the subsequent-application
doctrine does not compel boards to grant successive waivers of zoning
requirements. Assuming, without deciding, that the doctrine applies to waivers
— as opposed to variances — we have never held that the doctrine applies
when the board has previously granted an application. Rather, the doctrine
prevents boards from considering the merits of applications that they have
previously denied absent a finding of a material change in circumstances or a
material difference in nature and degree between the second application and
the prior one. See id. We decline to extend Fisher and its progeny to the facts
and circumstances of this case.
We therefore conclude that the 2015 waiver does not apply to the current
version of the petitioner’s project and did not compel the board to grant the
petitioner’s 2020 request for another density waiver. To the extent that the
petitioner challenges the HAB’s decision affirming the board’s denial
independent of the 2015 waiver, that argument is undeveloped, and we decline
to address it. See State v. Blackmer, 149 N.H. 47, 49 (2003) (“[W]e confine our
review to only those issues that [have been] fully briefed.”).
Affirmed.
HICKS and HANTZ MARCONI, JJ., concurred.
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