Planning Board

Jonathan P. Killeen
Shareholder at Boyle | Shaughnessy Law PC in Manchester, NH

No. 2018-0495
August 30, 2019

  • Whether the trial court correctly upheld the town planning board’s decision denying the plaintiffs’ application.

The plaintiffs owned an undeveloped parcel of land with four co-owners. The plaintiffs sought to subdivide the property in to a southerly 50-acre parcel with an existing access way, to which the plaintiffs would take title, and a northerly 199-acre parcel, to which the co-owners would take title. The northerly parcel of land did not have an existing access way. The parties submitted a subdivision plan to the planning board, which included a map with a proposed new access way to the 199-acre parcel of property. The co-owners, and others, raised concerns about the proposed new access way’s impact on nearby wetlands. The planning board conducted a site visit and received a letter from a wetlands scientist who determined that the proposed access way was not suitable for a driveway and, also, proposed an alternative access way. The plaintiffs would not agree to allow the co-owners to use the access road to the southerly parcel, relocate parcel boundary lines to allow for a different access way, or allow a right of way over the southerly parcel’s existing access way. The planning board denied the parties’ application citing concerns regarding nearby wetlands, the wetlands scientist’s letter, the plaintiffs’ refusal to agree to other alternatives, and certain town subdivision regulations. The plaintiffs appealed.

The Supreme Court affirmed the trial court’s ruling upholding the planning board’s decision to deny the parties’ application. The Supreme Court concluded that the planning board did not err by relying on town subdivision regulations that allowed the planning board to impose requirements upon the plaintiffs in order to preserve and protect existing “natural resources.” In doing so, the Supreme Court stated that the specifically enumerated natural resources contained in the regulation were similar in nature to wetlands, such that the regulation applied and provided notice to subdivision applicants. The Supreme Court further concluded that state law did not preempt municipalities from regulating wetlands because the town ordinance at issue was not contrary to, and did not frustrate the purpose of, the state statute governing wetlands. Additionally, the Supreme Court concluded that the trial court did not improperly rely upon the wetland scientist’s letter to uphold the planning board’s decision denying the application where there was no evidence the board actually considered the letter because it was relevant to and supported the board’s stated concern regarding the access way’s impact on wetlands. The Court also found the trial court’s decision reasonable because it was undisputed that the proposed access way would tarnish some portion of the wetlands. Finally, the Court concluded that trial court’s ruling that the planning board’s informal discussions about the proposed access way, without notice to the plaintiffs, did not seriously impair the plaintiffs’ rights to participate in the planning board’s consideration of the application.


Cleveland, Waters and Bass, P.A., of Concord (William B. Pribis on the brief and orally), for the plaintiffs. Donahue, Tucker & Ciandella, PLLC, of Exeter (John J. Ratigan and Brendan Avery O’Donnell on the memorandum of law, and Mr. O’Donnell orally), for the defendant.