Feins v. Town of Sutton, Doc. No. 217-2014-CV-673 (Merrimack Super. Ct., June 23, 2015) (McNamara, J.)


The State of New Hampshire


Jonathan Feins


Town of Sutton and
Town of Sutton Planning Board

No. 217-2014-CV-673


The Petitioner, Jonathan Feins ("Feins"), appeals a decision of the Planning Board ("the Board") of the Town of Sutton ("the Town"), in which the Board denied his application to subdivide his land into three lots. The Town and the Board (collectively, "the Respondents") have objected. The Court held a hearing on April 13, 2015. For the reasons set forth in this order, the Court VACATES the Board's decision and REMANDS Feins' application to the Board for further action consistent with this Order.


The record below reveals the following. Feins owns a 168.8 acre parcel of real property with frontage on the south side of Stonehouse Road in Sutton, known as Town of Sutton Tax Map Lot #10-688,134 ("the subject property"). The subject property is located in the Town's Rural-Agricultural District, which has a minimum lot size of two acres. See Town of Sutton Zoning Ordinance Art. V(C)(1).

On August 13, 2014, Feins filed an application with the Board for a minor subdivision of the subject property, seeking to subdivide the property into three lots measuring approximately 59 acres, 42 acres, and 68 acres. Certified Record ("C.R.") at [2] 3. Feins proposed that the three lots would share one common driveway. C.R. at 4. In filing this application, Feins officially withdrew a previously approved subdivision plan, named Harborview, in which the subject property would have been subdivided into thirty two lots. C.R. at 4.

New Hampshire law allows a planning board to adopt regulations allowing for the expedited review of minor subdivisions. See RSA 676:4, III. The Board has adopted such a regulation. See C.R. at 182. The Town's Subdivision Regulations defines a "minor subdivision" as "[a]ny subdivision containing not more than three (3) lots fronting on a publicly maintained road, not involving any new road or public utilities or improvements, and not adversely affecting abutting property." C.R. at 177.

The Board reviewed Feins' application during its September 11, 2014 public hearing. C.R. at 37. The Board first voted to accept the application for a minor subdivision as complete. C.R. at 38. The Board reviewed the application, and Feins' land surveyor, Clayton Platt ("Platt") explained the proposed subdivision. Id. Platt explained how the houses were to be built at the top of the hill to provide a view and would share a driveway. Id. The Board discussed many issues but was predominantly concerned with the plan for a shared driveway. Id. at 38-39.

There was then a discussion "regarding the impact of additional traffic on [the] small, narrow road." C.R. at 40. Aimee Ayers, an abutter, stated that the road was so narrow that two cars could not pass each other without one stopping and pulling over. Id. Dan Sudquist ("Sundquist"), a member of the Board, then stated that this would be less of a problem than there would have been with the proposed Harborview subdivision; however, with that subdivision plan the Board had required that the road [3] be widened and improved. C.R. at 40. Sundquist then proposed that the Board undertake a site visit with the Town's Road Agent. Sundquist further asked Feins if he would be willing to place restrictions on the three lots to forbid further subdivision of the lots. Id. Feins stated that this would depend on whether he would be asked to put in improvements for the Town, but he would ideally like to allow people to further subdivide at least once. Id. Sundquist then moved for a continuance to allow for a site walk, and the Board voted to continue the matter until the Board's public meeting on October 14, 2014. Id.

On October 12, 2014, the Board conducted the site walk of the subject property. Four Board members were present for the site walk, and three, including Sundquist, were absent. C.R. at 57. Also in attendance were Laurie Hayward ("Hayward"), the Land Use Coordinator; Steven Bagley ("Bagley"), the Road Agent; Kevin Rowe ("Rowe"), the fire captain; Betsy Forsham, Chair of the Conservation Commission; and others. Id. Neither Feins nor Platt attended. C.R. at 58.

Those in attendance began by walking a "logging trail" that was present on the subject property. C.R. at 57. While doing so, Board member Roger Wells ("Wells") "took up the issue of the access road, Stonehouse Road, and his concern that the road could not handle any added traffic, as it was in and of itself 'not much more than a driveway' being a very narrow unpaved road." Id. Wells further stated that he had been against the Harborview subdivision because he did not think the road would support the subdivision, and he further stated he still thought development would be "scattered and premature." Id.

During the remainder of the site walk, the majority of the discussion concerned [4] two issues: the shared driveway and the steep terrain. C.R. at 57-58. Fire Captain Rowe stated that he did not have a problem with the current proposal, but did have an issue with the possibility of further subdivision in the future. Id. He further noted that the residences that would be constructed on the three lots would be required to either install a sprinkler system or large cisterns so water could be available in case of a fire. Id.

Mid-day on October 14, 2014, Hayward forwarded an email to the Board members that was from the Town's Fire Chief, Cory Cochran ("Cochran"). C.R. at 59. Cochran states that due to the narrowness of Stonehouse Road, he does not think the Fire Department could transport enough water to the houses in case of a house fire. Id. He asked that if the subdivision application were accepted, conditions be put in the deeds that would require any buyers to install both a sprinkler system and a cistern at the properties. Id. at 59-60.

Later that same day the Board heard the matter again at its public meeting. C.R. at 63. Sundquist was absent at this meeting. Id. The Board discussed the site walk and their determinations concerning the steepness of the land and the proposed common driveway. Id. at 63-64. Then, the Chair of the Board read Cochran's email into the record. Id. at 64. The Chair then noted that Stonehouse Road is a dead end road that is not directly connected to roads in the Town but rather connected to a road in New London. Id. at 65. She then noted that the Board must notify and seek input from New London's Planning Board. Id. The Board then voted to continue the hearing until October 28, 2014 in order to do so. Id. at 65-66.

At the Board meeting on October 28, 2014, the Chair opened by asking whether Hayward had any new information. C.R. at 70. Hayward replied that she had contacted [5] New London's Planning Board, but as that body had not had a meeting since they were contacted, she could not tell the Board what the response would be. Id. Hayward then explained that the Board could move forward under the assumption that approval from the New London Planning Board would be a condition of any approval they might give. Id. Platt then showed the Board a revised plan, in which only two of the houses shared a driveway and the other had its own driveway. Id. The Board further discussed whether they could ask Feins to agree to bar further subdivision of the property. Id. at 71.

Then, Sundquist stated that he believed that "the limiting factor to this entire subdivision proposal is Stonehouse Road." C.R. at 71. Sundquist explained that he had met with the Town's Road Agent and they had together walked Stonehouse Road. Id. at 72. Sundquist stated that they had "looked at the capacity of the road to carry traffic and the capacity of the road to be improved." Id. He noted that this proposed subdivision was similar to two other subdivisions in which the Town had to spend significant sums of money to improve roads after the subdivisions were approved. Id. Sundquist further stated that there are "serious issues with road carrying capacity" and asked the Board to consider using the exaction process "which would have the owner pay a percentage of the cost of the improvements to be made by the town." Id. He stated that if the road could not handle the additional traffic, the Board might have to consider the application "scattered and premature." Id. Wells then explained how the Board had used an exaction to fund a road for another subdivision. Id. at 73. The Board voted to continue the hearing, and Sundquist asked that in the meantime Hayward inquire of Town Counsel "exactly what can the Board require and what their responsibility is" and whether exactions have strict rules. Id.

[6] On November 3, 2014, Platt submitted a letter and traffic study via email to Hayward. C.R. at 88. The letter states that while he was reviewing the documents pertaining to the proposed Harborview subdivision, he found a traffic study "relating specifically to Stonehouse Road [and] the adequacy for additional traffic generated by adding two more lots toward the end of the Class 5 portion of the road." Id. at 89. While the traffic study was undertaken in 2006 for a different development, Platt argues it is relevant: "Instead of four houses with 38 trips/day we are looking at five house sites with 47.5 trips per day-still under the 50 set forth in the standards." Id. The attached traffic study states that according to guidelines set by the American Association of State Highway and Transportation Officials ("AASHTO"), roads such as Stonehouse Road are "normally used for local roads carrying less than 50 vehicles per day." Id. at 90. The study further states that for existing roads, "the designer is discouraged at most sites from making unnecessary . . . roadside improvements" and that "existing unpaved roads generally should not be widened as a safety measure unless there is evidence of a site-specific safety problem that may be corrected by widening." Id. at 91. The study concluded that the road was adequate for the then-proposed traffic volumes. Id.

That same day, Feins submitted a letter responding to the Board's concerns from the last meeting. C.R. at 92. He mentioned the traffic study and also stated that he had spoken with Cochran, who told him he was not recommending that the road be widened. Id. Feins further stated that he does not understand that while he was previously approved for a 32 lot subdivision, the Board may now deem a three lot subdivision "scattered and premature." Id. at 93. Additionally, Feins' parents, who live on Stonehouse Road, both submitted letters stating that they believe the road is adequate [7] and question Sundquist's assertion that it would need to be improved. Id. at 94-95. Since Sundquist is not a traffic engineer, they argue, their opinion as homeowners on the road should count more than the opinion of Sundquist, who walked the road once. Id.

On November 5, 2014, Feins was accidentally forwarded a series of emails between all members of the Board and Hayward. C.R. at 127-155. Many of the emails were from Hayward, providing additional information to members of the Board that was requested during the previous meetings. C.R. at 127-128, 130-138. Both Sundquist and Wells also sent emails to members of the Board with their thoughts and opinions concerning the Feins application. C.R. at 129, 144-45.

The Board again discussed the matter at the November 11, 2014 Board meeting. The Chair began by asking Feins if he had anything new to present, and Feins highlighted the traffic study that he had previously submitted. C.R. at 97.

After further discussion, the Board entered into deliberations. C.R. at 105. Wells stated that he believed the subdivision application should be denied as "scattered and premature." Id. He stated that the traffic study only considered the road directly in front of Feins' property, but he believed they needed to look at the road as a whole. Id. Wells further explained that there were five houses on the road as a whole, which make an average of 10 trips per day, so the road was already at maximum capacity. Id. Wells further stated that Feins had indicated he did not want to make improvements to Stonehouse Road, and thus, "it is not appropriate for further subdivision." Id. Sundquist then stated that there were ways to improve the road, "but at a cost." Id.

Wells stated they need to consider low cost means of addressing roads such as [8] Stonehouse Road; he suggested that widening the roads might not be as good of a solution as providing more "laybys." Id. Sundquist stated that "certainly the road could be made adequate for the three lots that would take the vehicle trips per day from 50 to 80; but, the cost to do it to high standards would be into the hundreds of thousands." Id. at 106. Wells then moved for the application to be denied without prejudice as "scattered and premature;" the Board voted 4-2 to deny Feins' application.

On November 25, 2014, the Board sent Feins a Notice of Decision denying his application without prejudice. C.R. at 115. The Board noted that it had determined "that the proposed subdivision would be scattered and premature due to the inadequacy of Stonehouse Road to provide access." Id. Specifically, the Board stated:

The Planning Board's decision was based on the following:
1. Traffic Study. The applicant submitted a traffic study from 2006 regarding a prior subdivision by the current applicant of the same property which addressed the adequacy of Stonehouse Road which abuts the property for providing access to four houses. The study found that portion of Stonehouse Road to be adequate for four houses, based on the standards set forth by AASHTO that the four proposed houses would produce 38 vehicle trips per day (vpd) and that portion of the road is adequate for 50 vpd. The board determined that the full length of Stonehouse Road must be considered, and that it currently provides access to five houses. The proposed subdivision would increase the traffic load to eight houses, or approximately 80 vpd. This exceeds the traffic load recommended in the traffic study.
2. Site Visit. The board conducted a site visit on October 12, 2014. The board found that the road right-of-way is two rods wide, the traveled way is narrow, trees are near the edge of the . . . travelled way, and the road narrows in winter due to the lack of adequate space for snow storage. The board determines that the full length of Stonehouse Road must be considered, not just the portion that abuts the property. The board determined that while improvements could be made to Stonehouse Road to rectify some of all of the issues, the road is currently inadequate to support the proposed additional traffic.

Id. at 115.

[9] II

Feins now appeals the Board's decision under RSA 677:15, V, which provides that the Court "may reverse or affirm, wholly or partly, or may modify the decision brought up for review when there is an error of law or when the court is persuaded by the balance of probabilities, on the evidence before it, that said decision is unreasonable." The Court's review is limited. See Limited Edition Properties, Inc. v. Town of Hebron, 162 N.H. 488, 491 (2011) (citing Motorsports Holdings v. Town of Tamworth, 160 N.H. 95, 99 (2010)). The Court "must treat the factual findings of the planning board as prima facie lawful and reasonable and cannot set aside its decision absent unreasonablencss or an identified error of law." Id. (citations omitted). The Court "is not to determine whether it agrees with a planning board's findings, but rather whether there is evidence upon which they could have been reasonably based." Id. (citations omitted). "The appealing party bears the burden of persuading [the Court] that, by the balance of probabilities, the board's decision was unreasonable." Id. (citations omitted).

Feins argues that the Board's decision was unreasonable and unlawful for several reasons. First, Feins argues that the Board, by accepting his application for a minor subdivision, made the implicit finding that Stonehouse Road would not need to be improved, and therefore their denial contradicted this earlier finding. Second, Feins argues that the Board incorrectly relied on and interpreted the traffic study and selectively quoted from it to support its own opinion. Third, Feins argues that the Board's decision was based not on its October 12, 2014 site visit, but rather was based on Sundquist's later visit to the property with the Town's Road Agent. Feins argues that [10] this visit constituted an illegal site walk, and thus the Board could not base its decision on it. Fourth, Feins argues that the Board violated the Right to Know law, RSA 91-A, by discussing and deliberating via email, which he learned of when a member of the Board accidentally forwarded him an email chain on November 5, 2014. Fifth, Feins argues that the Board's decision to deny his application because he was unwilling to pay for improvements to Stonehouse Road constitutes an illegal taking of his property. Finally, Feins argues that the Board violated his right to due process by relying on Sundquist's review of the property and Stonehouse Road and also by pre-determining the outcome of his application. The Court takes each argument in turn.

Feins first argues that when the Board voted to accept his application for a minor subdivision, it made the implicit finding that Stonehouse Road would not need to be improved, which precluded its later finding that improvements needed to be made to the road. Feins points to the Town's Subdivision Regulations, which define a "minor subdivision" as "[a]ny subdivision containing not more than three (3) lots fronting on a publicly maintained road, not involving any new road or public utilities or improvements, and not adversely affecting abutting property." C.R. at 177 (emphasis added). Feins argues, then, by that by accepting his application for a minor subdivision, the Board "effectively found that the Minor Subdivision did not require any new roads or improvements." (Feins' Trial Mem. at 16.) The Court has reviewed the record and finds this argument to be without merit. The Board, before accepting the application, merely confirmed that the application was complete and that Feins paid all the required fees. See C.R. at 38. There was no discussion about whether the property would require any new improvements. See id. The Court is unwilling, then, to find that the Board, by [11] simply accepting the application and agreeing to review it, even implicitly made the finding that Stonehouse Road need not be improved.

The Court next turns to Feins' argument that the Board incorrectly relied on and interpreted the traffic study. First, Feins argues that the Board, pursuant to its own regulations, did not have the jurisdiction to review the traffic conditions of a "minor subdivision." However, Feins voluntarily submitted the traffic study as part of his application submission. See C.R. at 99. Feins cannot now argue that the Board should not have relied on the traffic study.

Feins also argues that the Board misinterpreted the traffic study and selectively quoted from it to support its pre-determined opinion that Stonehouse Road would need to be improved. Since the Board based its decision that the subdivision was "scattered and premature" in part on their erroneous interpretation of the traffic study, Feins argues that its decision was unreasonable. The Court agrees. The traffic study only reviewed the adequacy of a discrete section of Stonehouse Road - the section directly in front of Feins' property. See C.R. at 90. In the traffic study, it was determined that this section of road was adequate for 50 vehicle trips per day. The Board, however, used the 50 vehicle trips per day figure for the entire length of Stonehouse Road. There is nothing in the record indicating that the rest of Stonehouse Road should likewise be limited to 50 vehicle trips per day. The Board erred, then, by incorrectly attributing the 50 vehicle trips per day figure to the entirety of Stonehouse Road, when the traffic study was limited to the section of Stonehouse Road directly in front of Feins' property.

Next, the Court turns to Feins' argument that the Board's decision was based on Sundquist's later visit to the property that Feins deems an "illegal site visit." The Court [12] first notes that Feins has not explained how Sundquist's later visit to the property constituted an "illegal site visit," and the Court knows of no such authority for this proposition.

However, in its Notice of Decision denying Feins' application, the Board specifically noted that their decision was based on both the traffic study and the October 12, 2014 site walk. See C.R. at 115. Sundquist was not present at that site walk, and the minutes from that site visit, discussed supra, show very little discussion of Stonehouse Road. Despite this, the Board, in its decision, made detailed findings concerning Stonehouse Road that had supposedly been determined on that site walk - the Board notes that during that site walk it had found that the "road right-of-way is two rods wide" and that it is narrow with trees along the edge. Id. Further, the Board noted that during the October 12, 2014 site walk they had determined that Stonehouse Road was too narrow for adequate snow storage in winter. Id. These findings are not supported by the minutes of the October 12, 2014 site walk, and the Court therefore finds the Board's decision on this point unreasonable.

Fourth, Feins argues that the Board violated the Right to Know law when they discussed and deliberated his application via email. RSA 91-A:2-a, I mandates that "public bodies shall deliberate on matters over which they have supervision, control, jurisdiction, or advisory power only in meetings" held pursuant to the other provisions of the Right to Know law. The statute further states that "[c]ommunications outside a meeting, including, but not limited to, sequential communications among members of a public body, shall not be used to circumvent the spirit and purpose of this chapter . . . ." RSA 91-A:2-a, II. This case, however, was not brought as a Right to Know case. It does [13] appear that the Board did, on several occasions, improperly deliberate on the Feins matter through email. For instance, on October 13, 2014, Sundquist wrote an email to the other Board members stating that he would not be able to attend the October 14, 2014 meeting "but wanted to offer a few comments that might prove helpful as the application moves forward." C.R. at 129. In this email, Sundquist offers his opinion and suggestions on the design and construction details of Feins' proposed driveway and further offers thoughts and recommendations on the adequacy of Stonehouse Road. Id. Additionally, on November 4, 2014, Wells sent an email to other Board members that, on its face, is simply a list of questions that he believes the Board should ask its attorney; however, a reading of the email shows that Wells was offering his opinions and deliberating on the substance of Feins' application. C.R. at 144-145 (for instance, asking "can we adopt driveway or other rules post subdivision approval that are required in order to get a building permit and would therefore apply to any subdivision approval we already gave?"). But there is no basis for an award of remedies pursuant to RSA 91-A. Feins brought his petition under RSA 677:15, V, which allows a party to appeal a Planning Board decision; he did not bring an action for a violation of the Right to Know law under RSA 91-A:7. However, the Court finds that this evidence is suggestive of the Board's unreasonableness.

Fifth, Feins argues that the Board's decision to deny his application was an illegal taking because it constituted an unconstitutional exaction, as he refused to pay for improvements to Stonehouse Road. "[W]here offsite improvements can properly be required of a subdivider, the subdivider can be compelled only to bear that portion of the cost which bears a rational nexus to the needs created by, and special benefits [14] conferred upon, the subdivision." Land/Vest Properties, Inc. v. Town of Plainfield, 117 N.H. 817, 823 (1977) (citation omitted); see also Dolan v. City of Tigard, 512 U.S. 374, 386 (1994). However, here, though it is apparent from the record that the Board wanted Feins to contribute some amount to improve Stonehouse Road, the Board did not, in its Notice of Decision, state how much it would seek to have Feins contribute. For that reason, then, the Court cannot yet determine whether the Board's decision constituted an unconstitutional exaction. However, the Court notes that the Board is statutorily required to adequately explain its reasoning in any decision in which it denies an application. See RSA 676:4(h). Here, the Board did not explain how much it was seeking to have Feins contribute to the improvement of Stonehouse Road. If the Board were seeking a contribution from Feins, it should have explained so in its decision.

Finally, Feins argues that the Board violated his right to procedural due process. In the land use context, due process requires both an adequate notice and an opportunity to be heard. See Webster v. Town of Candia, 146 N.H. 430, 439-40 (2001). The notice and opportunity to be heard must be granted in a meaningful time and in a meaningful manner. See Quality Carpets, Inc. v. Carter, 133 N.H. 887, 890 (1991); see also State v. Martina, 135 N.H. 111, 119 (1991). Feins first argues that his due process rights were violated when the Board relied on Sundquist's review of the property and Stonehouse Road. The Court is not convinced. As the Court noted above, Feins has not shown there was anything improper about Sundquist's visit to tour the road and property, and, as it was not an official Board meeting, there was no need for notice. Second, Feins argues his rights to procedural due process were violated because the emails between members of the Board "are clear evidence that a majority of the [15] Planning Board had already determined the outcome of the public hearing . . . ." (Feins' Trial Mem. at 26.) The Court has reviewed the relevant emails and determines that, though there is a violation of the Right-to-Know laws, see supra, there is no clear evidence that the Board prejudged the outcome of Feins' application.

In conclusion, the Court determines the Board's decision was unreasonable or unlawful for the following reasons. First, it was unreasonable for the Board to rely on the traffic study to determine the vehicles per day allowed for the entire road, where the study was limited to the discrete section of the road directly in front of Feins' property. Second, the decision was unreasonable because it relies on detailed findings the Board allegedly made on its October 12, 2014 site visit, whereas those listed findings are not supported by the record of that site visit. Third, at least twice during the pendency of Feins' application, the Board improperly deliberated via email. Finally, the Board failed to adequately explain its decision as it was required to do by RSA 676:4(h), insofar as the decision was largely based on Feins' refusal to pay for improvements to Stonehouse Road and the Board failed to specify what contribution it was seeking from Feins. For these reasons, then, the Court VACATES the Board's decision and REMANDS Feins' application to the Board for further action consistent with this Order.

Finally, Feins requests costs and attorneys' fees. Feins first argues that he is entitled to attorneys' fees under RSA 91-A:8, a provision of the Right to Know law, because of the emails he discovered on November 5, 2014. However, as discussed above, Feins brought the case as an appeal from a Planning Board decision, not as a Right to Know case. Accordingly, the remedies under RSA 91-A:8 are not available to him. Feins also argues that he is entitled to attorneys' fees under RSA 677:15, V, which allows for [16] the award of such fees if it "appear[s] to the court that the planning board acted in bad faith or with malice in making the decision appealed from." The Court has found no such evidence of bad faith or malice, and Feins' request for attorneys' fees is therefore DENIED.


   6/23/15       /s/   

DATERichard B. McNamara,

Presiding Justice