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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Strafford No. 2008-461 PHILIP AUGER & a. v. TOWN OF STRAFFORD Argued: February 19, 2009 Opinion Issued: April 24, 2009 Michael L. Donovan, of Concord, on the brief and orally, for the plaintiffs. Walter L. Mitchell III and Judith E. Whitelaw, of Laconia, for the defendant, filed no brief. Wiggin & Nourie, P.A., of Manchester (Gregory E. Michael and Sheliah M. Kaufold on the brief, and Mr. Michael orally), for the intervenor, Graystone Builders, Inc. DUGGAN, J. This is the second time this matter has come before us. The plaintiffs are abutters to and neighbors of a conservation development subdivision (CDS) proposed by the intervenor, Graystone Builders, Inc. (Graystone). Graystone appeals a ruling of the Superior Court (Houran, J.) granting the plaintiffs' motion for entry of a final order reversing the planning

board's approval of the CDS proposal after we previously remanded the matter to the superior court. Graystone argues that the trial court's ruling is not consistent with our mandate in Auger v. Town of Strafford, 156 N.H. 64 (2007), which affirmed in part, reversed in part, vacated in part, and remanded. We reverse and remand. The facts of the underlying case can be found in our previous decision regarding this matter. See Auger, 156 N.H. at 65-66. Briefly, Graystone proposes to build a CDS in Strafford. To receive the planning board's approval for a CDS, a developer must submit a CDS proposal. In addition to the CDS proposal, the board may also require a yield plan. The purpose of a yield plan is to aid the board in determining the number of houses that may be built in a CDS by depicting the roadway rights of way, property lines, wetlands, lot areas and the proposed number of houses. The board required a yield plan in this case. Graystone submitted its yield plan and CDS proposal for the property, which the board approved in March 2004 and August 2005, respectively. The plaintiffs appealed the board's decision to the superior court, which affirmed the CDS, but remanded the yield plan to the board to determine whether it complied with the applicable regulations concerning wetlands. The plaintiffs then appealed the superior court's approval of the board's decision, and Graystone cross-appealed the court's remand of the wetlands issue. In Auger, we addressed three issues pertaining to the CDS proposal and two pertaining to the yield plan. First, as to the CDS proposal, we held that the board applied the wrong standard in its waiver of the regulation prohibiting more than ten lots on a dead-end street. Id. at 67. Rather than requiring evidence that Graystone would suffer undue hardship or injustice were it required to strictly apply this regulation, the board waived the requirement because "it preferred the cul-de-sac configuration" as opposed to a loop configuration. Id. We therefore reversed the superior court's decision to uphold the board's approval of the CDS proposal and remanded the issue for further proceedings consistent with our opinion. Id. In the interest of judicial economy, we addressed the four remaining arguments. We declined to decide the second issue, regarding the board's alleged failure to review the environmental impact of the proposed CDS upon a nearby lake, because the plaintiffs failed to develop the issue sufficiently for our review. Id. at 68. As to the third issue concerning the CDS proposal, we affirmed the superior court's ruling that the plaintiffs' procedural due process rights were not violated when a board member voted on the CDS proposal even though he missed two of the multiple hearings on the issue. Id. at 68-69. As to the yield plan, we first held that the superior court erred in remanding the matter to obtain the necessary information for determining whether the yield plan complied with applicable wetland regulations. Id. at 69-

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70. Because there was insufficient evidence in the record to support the board's conclusion, we held that the superior court should have reversed the yield plan instead of remanding it, and we therefore vacated the superior court's decision. Id. at 70. Second, we held that because the yield plan depicted a forty-five foot right of way--where the regulation requires a fifty-foot right of way--the board erred in approving the yield plan. Id. at 70-71. On remand, the plaintiffs filed a motion for entry of a final order reversing the board's approval of the CDS proposal and yield plan. Graystone objected, arguing that our mandate required further proceedings; specifically, that the superior court remand the matter to the board to apply the undue hardship standard and determine whether Graystone would suffer any undue hardship justifying the waiver of the ten-lot limit. Graystone also filed a motion requesting a stay and conditional mediation, to which the plaintiffs objected. The superior court granted the plaintiffs' motion and, as a result, ruled that Graystone's motion was moot. Graystone appealed the ruling. On appeal, Graystone argues that the superior court: (1) erred in its interpretation of the mandate in Auger; (2) violated Graystone's due process rights by not considering its substantial investment in the CDS approval process; and (3) erred in failing to consider the town's goal of avoiding further litigation and denying Graystone's motion for a stay to enter mediation. We first address the superior court's implementation of the mandate in Auger. As a general proposition, the trial court is bound by the mandate of an appellate court on remand. State v. Abram, 156 N.H. 646, 650 (2008). After all, "the mandate is the official notice of action of the appellate court, directed to the court below, and directing the lower court to have the appellate court's judgment duly recognized, obeyed, and executed." Id. (quotation and ellipses omitted). Thus, "a trial court is barred from acting beyond the scope of the mandate, or varying it, or judicially examining it for any other purpose than execution." Id. (quotation, citations and brackets omitted). In implementing the mandate, "the trial court need not read the mandate in a vacuum, but rather has the opinion of [this] court to aid it. In this way, the trial court may examine the rationale of an appellate opinion in order to discern the meaning of language in the court's mandate." Id. (quotation, brackets and ellipses omitted). Indeed, the proceedings on remand must be in accordance with both the mandate of this court and the result contemplated in the opinion. Id. Generally, a trial court is free upon remand to "take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of [this] court." Id. at 651 (citing 5 C.J.S. Appeal and Error

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