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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 ___________________________

Rockingham No. 2009-099

JANET AND PETER SAUNDERS v. TOWN OF KINGSTON

Argued: January 13, 2010 Opinion Issued: July 23, 2010 The Law Office of Scott E. Hogan, of Lee (Scott E. Hogan on the brief and orally), for the plaintiffs. Cleveland, Waters and Bass, P.A., of Concord (David W. Rayment and Mark S. Derby on the brief, and Mr. Rayment orally), for the intervenor, Konover Development Corp. HICKS, J. The plaintiffs, Janet and Peter Saunders, appeal a decision of the Superior Court (McHugh, J.) dismissing their appeal of a decision of the Town of Kingston Zoning Board of Adjustment (ZBA) allowing the intervenor, Konover Development Corporation, to build a Hannaford Brothers Supermarket on a parcel of land in Kingston. We affirm.

The trial court's order recites, or the record supports, the following facts. At issue is an eleven-acre parcel abutting Main Street and Route 125 in Kingston. Approximately one-third of the parcel lies within the Town's Historic District, while the remainder lies within the Rural Residential District. The portion within Historic District I contains frontage on Route 125 and would provide ingress and egress to the supermarket. The supermarket itself, however, would be located on property lying within the Rural Residential District. In January 2004, Konover engaged in a non-binding consultation with the Kingston Planning Board regarding its proposal. At that time, a retail grocery store was a permitted use in the Rural Residential District, but could not be built in Historic District I unless a certificate of approval was obtained from the Historic District Commission. In March 2004, Kingston's zoning ordinance was amended so as to prohibit most retail uses in the Rural Residential District. In 2006, Konover applied for a certificate of approval from the Historic District Commission. The request was denied and Konover appealed to the ZBA. The ZBA found that the Historic District Commission had erred and granted approval for the proposed supermarket. Ouellette v. Town of Kingston, 157 N.H. 604, 607 (2008). Successive appeals to the superior court and this court resulted in affirmances upholding that approval. Id. at 605. On January 22, 2008, the Kingston Planning Board granted Konover conditional site plan approval for the project. The plaintiffs appealed to the ZBA, contending that the approval violated various provisions of the Kingston Zoning Ordinance, including provisions relating to the historic district, the rural residential district and the wetlands conservation district. On April 10, the ZBA denied the appeal, ruling in part that the issues related to the site's location in the rural residential district and alleged violations of the historic district ordinance had been previously decided and would not be reconsidered. The plaintiffs' application for rehearing was denied. The plaintiffs appealed to the superior court which dismissed their appeal. The plaintiffs now appeal the trial court's disposition of their case to this court. On appeal, the plaintiffs contend that: (1) the trial court lacked subject matter jurisdiction because the planning board decision underlying the ZBA decision on appeal was not final; (2) under the Kingston Zoning Ordinance and state law, the planning board was required to apply the most restrictive zoning provision, and the trial court erred in not allowing the plaintiffs to raise this issue; and (3) the ZBA and the superior court erred in refusing to consider the

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plaintiffs' argument that Konover's proposed development violated numerous provisions of the zoning ordinance. We address each contention in turn. We will uphold the trial court's decision unless the evidence does not support it or it is legally erroneous. For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. It may set aside a ZBA decision if it finds by the balance of probabilities, based on the evidence before it, that the ZBA's decision was unreasonable. Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005) (quotation, citations and brackets omitted). The plaintiffs first argue that because the January 22, 2008 approval of the site plan was conditional, no appeal therefrom would be ripe "until such time as the Planning Board granted final approval within the meaning of RSA 677:15." They cite a Superior Court (Smukler, J.) order in related cases dismissing petitions for certiorari review of the conditional site plan approval of Konover's project. There, the trial court noted that the planning board had "imposed 17 conditions, which must be completed before the board would sign the site plan and allow it to be recorded," found that one of the conditions contemplated "further discretionary action on the part of the board," and concluded that because the "board's decision was not final[,] . . . [the] court lack[ed] jurisdiction." Konover counters that Judge Smukler's decision is not relevant here because that decision was appealed under RSA 677:15, I (Supp. 2009), while the instant case was appealed under RSA 676:5, III (2008) and RSA 677:4 (Supp. 2009). We agree. Read together, RSA 677:15, I, and RSA 676:5, III "afford a person aggrieved by a planning board decision two distinct avenues of appellate review depending upon the nature of the claim." Hoffman v. Town of Gilford, 147 N.H. 85, 88 (2001). First, if the planning board makes a decision based upon the terms of the zoning ordinance, or upon any construction, interpretation, or application of the zoning ordinance, that decision may be appealed to the ZBA. The time limit for filing such appeal is determined by local ZBA rules. The ZBA's decision can then be appealed to the superior court under RSA 677:4 . . . within thirty days. Second, a decision made by a planning board concerning a plat or subdivision is appealable directly to the superior court by a petition for a writ of certiorari. The petition for a writ of certiorari must be filed within 30 days after the decision of the planning board has been filed and first becomes available for public inspection.

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Id. (quotations and citations omitted). "[W]hen a planning board decision is based upon both zoning and planning issues, a party aggrieved by both the zoning and planning aspects of that decision must follow the respective statutory procedures for appellate review of zoning and planning issues to preserve its rights." Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 573 (2003). RSA 677:15, I, provides, in pertinent part, that "[a]ny persons aggrieved by any decision of the planning board concerning a plat or subdivision" may petition the superior court for review. RSA 677:15, I. We have held, in a line of cases originating under a prior statute, that only a final decision of the planning board is appealable under RSA 677:15, I. See, e.g., Sklar Realty v. Town of Merrimack, 125 N.H. 321, 327 (1984); Collden Corp. v. Town of Wolfeboro, 159 N.H. 747, 750-51 (2010). We have further noted the distinction between conditions precedent and conditions subsequent as it relates to finality and appealability. "[C]onditions precedent . . . contemplate additional action on the part of the town, and, thus, cannot constitute final approval. Conditions subsequent, on the other hand, do not delay approval." Prop. Portfolio Group v. Town of Derry, 154 N.H. 610, 615 (2006). Thus, a conditional approval imposing only conditions subsequent constitutes a final decision appealable under RSA 677:15, I. Id. at 615-16. As noted above, RSA 676:5, III and RSA 677:4, taken together, allow for appeal to the ZBA, and then to the superior court, of "any [planning board] decision or determination which is based upon the terms of the zoning ordinance, or upon any construction, interpretation, or application of the zoning ordinance." RSA 676:5, III. We agree with Konover that the type of decisions or determinations appealable under RSA 676:5, III, namely, those based upon, or involving the construction, interpretation or application of, a zoning ordinance, are "final," for purposes of ripeness for appellate review, when made. Such decisions do not "contemplate additional action on the part of the town," Prop. Portfolio Group, 154 N.H. at 615, but conclusively determine the applicable issue at the planning board level. We hold that they are immediately appealable to the ZBA under RSA 676:5, III, and further to the superior court, subject to the requirement of a prior application for rehearing under RSA 677:2 (Supp. 2009), see RSA 677:3, I (2008). Accordingly, we reject the plaintiffs' contention that the trial court lacked subject matter jurisdiction. We note that this holding is consistent with our recent holding in Atwater v. Town of Plainfield, 160 N.H. ___ (decided July 20, 2010). The plaintiffs next contend that "[a]nother threshold issue in this case has been determining which zoning district(s) apply to the subject property under the provisions of the Kingston Zoning Ordinance." They assert that because portions of the eleven-acre parcel fall within the Historic District, the Rural Residential District and the Wetlands Conservation District, the planning

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board was required by the Kingston Zoning Ordinance and state law to apply the most restrictive zoning provision. Specifically, they cite the following provisions of the zoning ordinance dealing with the wetlands conservation district: Where the Wetlands Conservation District is superimposed over another zoning district in the Town of Kingston, that district which is more restrictive shall govern. .... . . . In cases where the Wetlands Conservation District overlays another zoning district, the proposed use shall be permitted (providing said use is allowed in the underlying district) subject to review . . . [as provided]. Kingston Zoning and Building Code, art. IV,

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