___________________________

Carroll

Nos. 98-072

98-164

MOUNTAIN VALLEY MALL ASSOCIATES

v.

MUNICIPALITY OF CONWAY & a.

February 3, 2000

Wiggin & Nourie, P.A., of Manchester (W. Wright Danenbarger on the brief and orally), for the plaintiff.

Hastings Law Office, P.A., of Fryeburg, Maine (Peter G. Hastings and Peter J. Malia, Jr. on the brief, and Mr. Malia orally), for the municipality of Conway, the Conway Planning Board, and the Conway Zoning Board of Adjustment.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief and orally), for the intervenor, the Druker Company, Ltd.

JOHNSON, J. In this consolidated appeal, the plaintiff, Mountain Valley Mall Associates, appeals the decision of the Superior Court (O'Neill, J.) affirming the decision of the Conway Planning Board (board) approving intervenor Druker Company, Ltd.'s concurrent applications for site plan approval and subdivision of a 14.92 acre parcel in North Conway (direct appeal). The plaintiff also appeals the decision of the Superior Court (Mohl, J.) dismissing its petition for review of a decision of the Conway Zoning Board of Adjustment (ZBA) (ZBA appeal). We affirm.

This case presents a complex procedural and factual history involving multiple hearings before the planning board and concurrent appeals from the planning board's decision to both the ZBA, see RSA 676:5, III (1996), and the superior court, see RSA 677:15 (1996). In October 1995, the intervenor filed concurrent applications for a site plan review and subdivision with the planning board seeking approval for a proposed 117,400 square foot retail mall in North Conway. In July 1996, the planning board granted conditional approval of the project, see RSA 676:4, I(c) (1996) (amended 1997, 1998), subject to ten specific conditions. The planning board granted final approval upon satisfaction of those conditions in March 1997. The plaintiff filed two appeals of the planning board decision in April 1997, one with the superior court and one with the ZBA, making almost identical claims of error on the part of the planning board. But cf. RSA 677:15, I (limiting issues appealable to the ZBA). After the ZBA denied the plaintiff's administrative appeal as untimely, see RSA 676:5, III (outlining when planning board decisions should be appealed to the ZBA); cf. RSA 677:2, :3 (1996), and subsequently denied its motion for rehearing, the plaintiff appealed that decision to the superior court (ZBA appeal) in June 1997, see RSA 677:4 (Supp. 1997).

In November 1997, the superior court affirmed the planning board decision in the direct appeal. The court, however, refused to address claims of error regarding the ZBA's grant of a series of special exceptions in April 1996, noting that the direct appeal was made pursuant to RSA 677:15, not RSA 677:4, and thus, "[r]eview of zoning board determinations would be beyond the scope of this appeal." The intervenor then moved to dismiss the ZBA appeal on the basis that even if the plaintiff had timely filed its administrative appeal with the ZBA, the issues raised in the ZBA appeal were identical to those already decided in the direct appeal, and therefore collateral estoppel barred litigation of the ZBA appeal. The municipality of Conway concurred in the intervenor's motion.

The superior court granted the intervenor's motion to dismiss on the bases: (1) that the planning board issues had been resolved in the direct appeal, and thus the plaintiff was barred by collateral estoppel from relitigating those issues; and (2) that the plaintiff failed to properly exhaust its administrative remedies with respect to the ZBA appeal. The plaintiff's appeals to this court of both the direct appeal and ZBA appeal were consolidated for our review, and we now affirm.

On appeal, the plaintiff contends that the superior court erred in: (1) concluding that the board properly approved the intervenor's application because it did not comply with regulatory and statutory requirements; (2) refusing to conclude that the board improperly granted certain waivers to the intervenor; (3) refusing to admit additional evidence during the direct appeal; (4) refusing to entertain the plaintiff's due process challenge to the grant of the special exceptions; and (5) determining which forum had subject matter jurisdiction over the grant of special exceptions.

The superior court's review of the planning board in both the direct appeal and the ZBA appeal is governed by statute. "Upon a grant of certiorari [pursuant to RSA 677:15], the superior court may review the decision of a planning board, and may reverse, affirm, or modify that decision where there is an error of law or when the decision is unreasonable." Deer Leap Assocs. v. Town of Windham, 136 N.H. 555, 557, 618 A.2d 837, 838 (1992) (citation omitted). The party appealing a ZBA decision likewise must demonstrate that it was unlawful or unreasonable. Narbonne v. Town of Rye, 130 N.H. 70, 72, 534 A.2d 388, 389 (1987). Although RSA 677:6 (1996) provides that "[a]ll findings of the zoning board of adjustment or the local legislative body upon all questions of fact properly before the court shall be prima facie lawful and reasonable," it is settled law that

[t]he statute does not impose an absolute requirement that the board's decision be erroneous as a matter of law before a trial judge can change it; the court need only inquire whether there is such error when it is not persuaded by the balance of the probabilities, on the evidence before it, that said order or decision is unjust or unreasonable.

Cook v. Town of Sanbornton, 118 N.H. 668, 670, 392 A.2d 1201, 1202 (1978) (quotation omitted) (decided under prior law).

As a preliminary matter, the parties dispute the standard of review governing the appeals to this court. The plaintiff asserts that because the superior court decided both appeals based solely on the record before the ZBA and board, we should independently review the record to determine whether the planning board or ZBA erred. We disagree.

In land use cases, we have not reviewed the determination of the superior court de novo regardless of whether the appellate record consists only of the certified record of the local planning board or ZBA. See Ray's Stateline Market v. Town of Pelham, 140 N.H. 139, 142-43, 665 A.2d 1068, 1070-71 (1995) (applying deferential standard where trial court accepted facts as presented to the ZBA); Rowe v. Town of North Hampton, 131 N.H. 424, 428, 553 A.2d 1331, 1334 (1989) (deference paid to superior court where it admitted additional evidence); Narbonne, 130 N.H. at 72-73, 534 A.2d at 389 (plaintiffs offered only record of administrative hearings at the superior court). The cases cited by the plaintiff as dictating a de novo standard of review do not involve appeals from zoning decisions, see McGovern v. Secretary of State, 138 N.H. 128, 129, 635 A.2d 498, 499 (1993) (broadening standard of review when deciding constitutional question on stipulated record); Masse v. Commercial Union Ins. Co., 136 N.H. 628, 632, 620 A.2d 1041, 1044 (1993) (refusing to grant usual deference to superior court in insurance policy coverage dispute), and are not governed by either the statutory framework at issue here or prior relevant case law. "The standard of review for this court is not whether we would find as the trial court did but whether the evidence reasonably supports the finding." Durant v. Town of Dunbarton, 121 N.H. 352, 357, 430 A.2d 140, 144 (1981); see, e.g., Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 248-49, 614 A.2d 1048, 1053 (1992) (Horton, J. dissenting) (noting that "[o]ur role on review is also limited, requiring deference to the trial court's findings" even where the evidence was "essentially limited to the record before the zoning board of adjustment").

Therefore, when reviewing the superior court's disposition of both appeals, "we will uphold the trial court unless its decision is not supported by the evidence or is legally erroneous." Nadeau v. Town of New Durham, 129 N.H. 663, 666, 531 A.2d 335, 337 (1987) (upholding trial court's reversal of both planning board and ZBA); see Ray's Stateline Market, 140 N.H. at 143, 665 A.2d at 1070-71 (superior court review of ZBA appeal); Deer Leap Assocs., 136 N.H. at 557, 618 A.2d at 838 (superior court review of planning board under 677:15). "We look to whether a reasonable person could have reached the same decision as the trial court based on the evidence before it." Nadeau, 129 N.H. at 666, 531 A.2d at 337 (quotation omitted).

The plaintiff first asserts that the superior court erred in granting final approval to the project because the evidence presented below demonstrates that it does not comply with several Conway site plan review regulations. See generally Town of Conway Site Plan Review Regulations (1995) (town regulations). The plaintiff lists a number of specific violations, and we address each in turn.

The plaintiff first contends that the intervenor's site plan violates the town regulations governing minimum parking spaces. See id.