PROPERTY PORTFOLIO GROUP v. Town of Derry

913 A.2d 750, 154 N.H. 610
CourtSupreme Court of New Hampshire
DecidedJanuary 24, 2007
Docket2005-867
StatusPublished

This text of 913 A.2d 750 (PROPERTY PORTFOLIO GROUP v. Town of Derry) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
PROPERTY PORTFOLIO GROUP v. Town of Derry, 913 A.2d 750, 154 N.H. 610 (N.H. 2007).

Opinion

913 A.2d 750 (2006)

PROPERTY PORTFOLIO GROUP, LLC
v.
TOWN OF DERRY and another.

No. 2005-867.

Supreme Court of New Hampshire.

Argued: October 18, 2006.
Opinion Issued: December 21, 2006.
As Modified on Denial of Reconsideration January 24, 2007.

*751 Griffith & Associates, PLLC, of Wilton (John P. Griffith on the brief and orally), for the petitioner.

Boutin & Altieri, P.L.L.C., of Londonderry (Edmund J. Boutin on the brief and orally), for respondent Town of Derry.

Brennan Caron Lenehan & Iacopino, of Manchester (Ronald J. Caron and Jaye L. Rancourt on the brief, and Ms. Rancourt orally), for respondent Hall Business Restorations, LLC.

DALIANIS, J.

The petitioner, Property Portfolio Group, LLC (PPG), appeals a decision of the Trial Court (Morrill, J.) granting respondent Town of Derry's motion to dismiss *752 PPG's petition for declaratory judgment. We affirm.

The record supports the following: Respondent Hall Business Restorations, LLC (Hall) sought a site plan determination from respondent Town of Derry Planning Board to convert a former fire station into a dining facility. PPG is an abutter with notice of the proceedings. At a May 18, 2005 public hearing, the planning board approved the site plan as follows:

Mr. Ochs moved to waive formal site plan review pursuant to LDCR — Article IX, Section 170-51 — Site Plan Determination for the application submitted by Hall Business Renovations, LLC to convert Station One to a restaurant, at parcel ID 29195, W Broadway subject to the following conditions:
1. Provide landscape buffer details for the Central Street residential uses.

This action was taken pursuant to Town of Derry Land Development Control Regulation (LDCR) Article IX, Section 170-51(D) (2005). Under the applicable regulations, an applicant has two choices: apply for "site plan determination" or for "site plan review." Applications for "site plan determination" are governed by Article IX, Section 170-51. This regulation requires the submission of an application and "a duly noticed public hearing." If the application is successful, site plan determination is granted. If the application is denied, the applicant may then submit an application for site plan review. See RSA 676:4, III (Supp.2006).

Applications for "site plan review" are governed by Sections 170-52 through 170-54. Site plan review is a more rigorous process, which includes three distinct phases of detailed review. See RSA 676:4, I, II (Supp.2006). Section 170-52 governs a "[c]onceptual consultation phase" at which "informal consultation" between the applicant and the planning board occurs before an application is filed. See RSA 676:4, II(a). Section 170-53 outlines a "[d]esign review phase," an optional but "strongly recommended" step "particularly in cases of developments of significant size or complexity." See RSA 676:4, II(b). In this stage, the planning board discusses the design with the applicant as well as other parties whose interests may be affected by the proposed project. After these discussions, the planning board may communicate to the applicant any specific changes which would serve as a prerequisite to the approval of the final site plan. Section 170-54 is the "[f]inal application phase" which entails a review for application completeness, a vote to accept jurisdiction over the application and a public hearing and approval or disapproval of the final application. See RSA 676:4, I.

Under these regulations, site plan determination is the more expedited of the two procedures. Site plan review, by virtue of its many procedural steps, is a more rigorous review process.

Five months after the planning board approved Hall's application for site plan determination, PPG filed its petition in superior court, seeking temporary and permanent restraining orders and declaratory judgment against the respondents. The town filed a motion to dismiss, which the trial court granted on the basis that PPG's claims were an untimely attempt to appeal the decision of the planning board.

When a trial court's review of a planning board decision is appealed, we will uphold the decision unless it is not supported by the evidence or is legally erroneous. DHB v. Town of Pembroke, 152 N.H. 314, 319, 876 A.2d 206 (2005). In determining whether a decision is supported by the evidence, we look to whether a reasonable person could have reached the same decision as the trial court based *753 upon the evidence before it. Id. at 319-20, 876 A.2d 206.

The issues in this case involve statutory construction. We are the final arbiter of the legislature's intent as expressed in the words of the statute as a whole. Id. at 317, 876 A.2d 206. We ascribe to statutory words and phrases their usual and common meaning, unless the statute itself suggests otherwise. Id.

New Hampshire law requires strict compliance with statutory time requirements for appeals of planning board decisions to the superior court. Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575, 825 A.2d 493 (2003). This is because statutory compliance is a necessary prerequisite to establishing jurisdiction in the superior court. Id. RSA 677:15, I (Supp.2006) provides the jurisdictional deadline for superior court review of a planning board decision. Id. It requires that a person "aggrieved by any decision of the planning board" present a petition to the superior court "within 30 days after the date upon which the board voted to approve or disapprove the application." RSA 677:15, I.

Here, because PPG filed its appeal five months after the planning board approved Hall's application for site plan determination, its appeal was untimely under RSA 677:15, I, and, thus, the trial court did not err when it ruled that it lacked jurisdiction to decide the appeal. See Route 12 Books & Video, 149 N.H. at 576, 825 A.2d 493.

PPG argues that the thirty-day appeal period set forth in RSA 677:15, I, does not apply for three reasons: First, PPG argues that the planning board's May 2005 decision was not a final decision because the planning board had no application before it, and because, to the extent that it granted approval, it did so subject to a condition precedent, which PPG asserts, has not yet been fulfilled. Second, PPG argues that the trial court had jurisdiction to decide its appeal under RSA 676:4, IV (Supp.2006). Third, PPG contends that the trial court should have permitted its declaratory judgment action, even though it was filed outside of the thirty-day appeal period in RSA 677:15, I.

I. The Decision of the Planning Board

PPG first argues that the thirty-day time limit in RSA 677:15, I, for appealing decisions of planning boards does not apply because there was no decision to appeal.

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Bell v. Liberty Mutual Insurance
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Morgenstern v. Town of Rye
794 A.2d 782 (Supreme Court of New Hampshire, 2002)
Route 12 Books & Video v. Town of Troy
825 A.2d 493 (Supreme Court of New Hampshire, 2003)
DHB, Inc. v. Town of Pembroke
876 A.2d 206 (Supreme Court of New Hampshire, 2005)
Property Portfolio Group, LLC v. Town of Derry
913 A.2d 750 (Supreme Court of New Hampshire, 2006)

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Bluebook (online)
913 A.2d 750, 154 N.H. 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/property-portfolio-group-v-town-of-derry-nh-2007.