THE STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS SUPERIOR COURT
NORTHERN DISTRICT 2001

NO. 00-E-441

DR. GERALD BERUBE AND GERBER MANAGEMENT AND REALTY CORP.

V.

CITY OF MANCHESTER

OPINION AND ORDER

LYNN, J.

The plaintiffs, Dr. Gerald Berube and Gerber Management and Realty Corporation, instituted this proceeding pursuant to RSA 677:15 (Supp. 2000) to review a decision of the planning board (board) of the defendant City of Manchester (city) which denied site plan approval of plaintiffs' proposed construction of a dental office on property located at the northeast corner of Salmon and Elm Streets in Manchester. On October 24, 2000, this court issued a certiorari order to the city, directing it to file a response to the petition together with the certified record of proceedings before the board. The court conducted an evidentiary hearing on the matter and took a view of the subject property on May 22, 2001. The court concludes that the board's decision is neither unlawful nor unreasonable, and therefore must be affirmed.

I.

The record before the court establishes the following pertinent facts. The plaintiffs own the property at 1725 Elm Street in Manchester. This property is located on the northeast corner of the intersection of Salmon and Elm Streets, and is in the Urban Multi-Family Professional Office District (R-3[PO]) under the city's zoning ordinance. In the area where this property is located, the R-3[PO] district cuts a narrower swath one block in width with Elm Street as its western boundary. Across Elm Street to the west is the Central Business District (CBD). This district houses a number of commercial properties, including particularly the New Hampshire Insurance Building, a large granite office building that is directly across from the subject property. However, on the eastern side of Elm Street to the north of the subject property, and for approximately one block to the south of the property as well, the buildings consist mostly of large Victorian era homes, many of which are used for commercial purposes. Immediately behind the subject property one block to the east of Elm Street is the Residential Two Family Professional Office District (R-2[PO]), which again is comprised largely of Victorian era structures.

On April 17, 2000, plaintiffs applied to the planning board for site plan approval to build a 5,400 square foot dental office with on-site parking on the property. At the request of abutters, the board held a public hearing to address the application on June 8, 2000. Discussion at the hearing focused heavily on concerns regarding the proposed building's architectural design. Many people expressed the view that the modern design of plaintiffs' proposed structure did not comport with the historic Victorian character of the neighborhood surrounding the property. The June 8 hearing culminated in the board's tabling the matter. On July 6, the board voted to hear additional public comment and to form a subcommittee to explore other design possibilities for the building.

The subcommittee met with plaintiffs' agent on July 19, 2000, and presented suggested design changes. After that meeting, the board granted plaintiffs an extension to make changes and resubmit the design. However, at a September 7, 2000 hearing to reconsider the application, plaintiffs presented plans which revealed that no significant changes had been made to the proposed design. As a result, on September 21, 2000, the board voted to deny the application. As grounds for the denial, the board cited Manchester Subdivision and Site Plan Regulations ("the regulations") 6.4(E)(1) and (5). These sections authorize the board to deny site plan approval on the grounds, that:

(1) The layout and arrangement of structures are not visually or functionally related to one another or to adjoining properties in a reasonable manner and which could be improved through plan modification.

(5) The development would be inconsistent with the type of adjoining development, and adequate screening or protection has not been provided to protect adjoining properties from the adverse effects of lighting, noise or other factors.1

Plaintiffs thereafter brought the present appeal.

II.

The scope of judicial review of decisions of local land use boards is narrowly circumscribed. It is not the court's function to sit as a "super" planning or zoning board, or to substitute its judgment for that of the local officials who have been entrusted with the responsibility of deciding appropriate land use issues. Instead, the court's role is much more limited, and involves only an assessment of whether such officials have acted unlawfully or unreasonably. See RSA 677:15, V. The party seeking to set aside the planning board's decision bears the burden of showing that the board acted unlawfully or unreasonably. Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 646 (2000). If any one of the board's reasons support denial of plaintiffs' application, their appeal must fail. Davis v. Barrington, 127 N.H. 202, 207 (1985).

In the case at bar, plaintiffs argue that the board's decision was unlawful and unreasonable for three reasons. First, plaintiffs aver that the site plan review enabling statute, RSA 674:43 (1996), does not authorize the planning board to review architectural design. Second, even if the enabling statute does permit a city to grant its planning board the authority to consider architecture, plaintiffs maintain that the city has not implemented such authority by enacting appropriate local legislation which allows the board power to consider architectural design as part of its site review process. Finally, plaintiffs argue that Manchester's site plan review regulations are not adequately specific to comply with the requirements of RSA 674:44 (III)(c). The court rejects each of these arguments.

First, the court holds that RSA 674:44 does confer upon municipalities the power to regulate architectural design. That statute provides, in pertinent part:

II. The site plan review regulations which the planning board adopts may:

...

(b) Provide for the harmonious and aesthetically pleasing development of the municipality and its environs.

The court believes that the phrase "harmonious and aesthetically pleasing" encompasses architecture. Architectural design in large part determines whether a proposed building will appear "harmonious" with surrounding structures or be "aesthetically pleasing" in the context of comporting with existing buildings. "Harmonious" has been defined as "forming a pleasingly consistent whole; congruous." The Random House Dictionary of the English Language, p. 873 (1987). "Aesthetic" means "pertaining to a sense of the beautiful." Id., p. 32. In this case, the board denied site plan approval because it found that the proposed design was not pleasingly consistent with the historic Victorian style of the surrounding buildings. RSA 674:44 entitled the Board to make such a determination.2

Plaintiffs assert that a municipality may only regulate architectural design within an historic districts established pursuant to RSA 674:45. They contend that if RSA 674:44 is construed to permit a planning board to regulate architecture as part of "normal" site plan review, then historic districts serve no purpose. Contrary to the plaintiffs' view, however, the legislation permitting municipalities to protect historic districts serves many purposes other than regulation of architectural design. According to RSA 674:45, the purposes of providing for historic districts include, among other goals, "[p]reserving districts in the municipality which reflect elements of its cultural, social, economic, political, community and architectural history," and "[s]trengthening the local economy." RSA 674:46 permits municipalities and counties to "regulate the construction, alteration, repair, moving, demolition or use of . . . structures and places [within historic districts]." As the quoted language makes clear, the historic district legislation authorizes regulation of far more than architectural design and serves very different purposes than RSA 674:44. Consequently, while there may be some degree of overlap between the authority granted for site plan review and that granted to an historic district commission, the court cannot say that recognizing the board's authority to reject an application for site plan review based upon architectural design obviates the need for the historic district statutes. Moreover, the mere fact that the historic district statute specifically references the word "architecture" (i.e., "architectural history," see RSA 674:45, I) while the site plan review enabling legislation does not, is not a sufficient basis for concluding that site plan review must eschew architectural considerations, in light of the fact that such considerations so obviously do play a role in determining whether a proposed development will be "harmonious" and "aesthetically pleasing" in the context of the area where it is located.

Second, in its site plan review regulations, the city did confer authority upon the board that is broad enough to include architectural considerations. The regulations permit the board to reject an application if "[t]he layout and arrangement of structures are not visually or functionally related ...to adjoining properties in a reasonable manner...." Manchester Subdivision and Site Plan Regulations 6.4(E)(1) (emphasis added). The phrase "not visually or functionally related...to adjoining properties in a reasonable manner" is the equivalent of the "harmonious and aesthetically pleasing" language used in the enabling statute, and clearly demonstrates the city's intent to permit the board to review a variety of factors, including architectural design, in determining whether a building will appropriately "fit" into the area where it is proposed to be built.3

Lastly, plaintiffs assert that the city's site plan regulations are not sufficiently specific to comply with RSA 674:44, III(c). They argue that the regulations fail to specify the standards and requirements an applicant must meet in order to win approval of its architectural design. The recent decision of the New Hampshire Supreme Court in Webster v. Town of Candia, ___ N.H. ___, Nos. 99-046 & 00-348 (May 21, 2001), plainly establishes that this argument is without merit. In Webster, the court found that the phrase "scenic beauty" as used in the scenic roads statute, RSA 231:158 (1993), was not unconstitutionally vague. As was the case in Webster, "[w]hile determination of what is [‘visually or functionally related' or ‘inconsistent with the type of adjoining development'] may on first impression be thought to be a matter of arbitrary and subjective judgment, upon consideration it proves not to be. The language takes clear meaning from the observable character of the district to which it applies." Id., slip op. at 5 (quoting Deering v. Tibbetts, 105 N.H. 481, 485-86 (1964)). The court finds that 6.4(E)(1) and (5) of the regulations provide sufficient guidance for applicants with regard to building design.

Here, the board adjudged the petitioners' proposed building against the Victorian character of the adjoining neighborhood, and found that the design was not visually or functionally consistent with surrounding structures. Under RSA 674:44 and the city's site plan regulations, the board was entitled to make these findings and its decision therefore was neither unlawful nor unreasonable. See Mt. Valley Mall Assocs., 144 N.H. at 646.

III.

For the reasons stated above, the decision of the board is hereby affirmed and plaintiffs' petition is dismissed.

 

BY THE COURT:

 

June 21, 2001   _____________________
                        ROBERT J. LYNN
                        Associate Justice

 

 

1 Although the notice sent to plaintiffs on September 27, 2000 cited only 6.4(E)(1) and (5) of the site plan regulations as the reasons for denial, the minutes of the board's September 21, 2000 meeting making it clear that the board also relied upon 6.4(E)(4) as a basis for denial. Despite the fact that the omission of reference to 6.4(E)(4) appears to be merely an inadvertent oversight, plaintiffs argue that by failing to include that subsection in the notice of denial the board may not now rely upon it as a ground to uphold the decision below. Because the court determines that 6.4(E)(1) and (5) afford adequate alternative grounds for the board's decision, the court need not address this argument.

2 Indeed, it must be noted that plaintiffs do not dispute the fact that the proposed design of their building is not in keeping with the primarily Victorian character of the neighborhood to the east of Elm Street; and the court's own observations made during the view confirm that the proposed building would be significantly out of character with that neighborhood.

3 Section 6.4(E)(1) indicates that consideration also must be given to whether the proposed structure "could be improved through plan modification." At the hearing before the court in this case, plaintiffs' architect, Lee Berard, acknowledged that the proposed dental office could be constructed in a more Victorian-oriented design for roughly the same price and with only a slight sacrifice in "efficiency" from the modern design he proposed.