Property Portfolio Group, LLC v. Town of Derry
48 A.3d 937
N.H.2012Background
- MTM sought a waiver from the LDCR 25-foot solid waste setback to move dumpsters closer to MTM’s boundary with PPG.
- The site is at West Broadway and Central Street in Derry; MTM’s dumpsters are near a fire lane and loading zone.
- The board granted the waiver with a fencing/screening condition after a public hearing and discussion about safety, traffic flow, and visibility.
- PPG and an abutter appealed to Superior Court, arguing lack of explicit findings and improper waiver process.
- The trial court and this Court review the board’s decision under a deferential standard, focusing on the basis reflected in the minutes and the record evidence.
- The Court affirms, holding the minutes adequately reflected the basis for the waiver and the record supports the board’s determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RSA 674:44, 111(e) requires express findings | PPG argues explicit findings were required | MTM/Board contends minutes suffice to show the basis | No explicit findings required; basis must be recorded in minutes |
| Whether minutes adequately reflect the basis for the waiver | Minutes do not reveal the basis for waiver | Minutes show consideration of alternatives and hardship | Minutes adequately reflect the basis for the waiver under the statute |
| Whether the record supports the waiver given hardships and safety concerns | Waiver not justified by hardship or safety | Record shows unnecessary hardship from strict compliance and safety benefits | Record supports the waiver with fencing/screening as a condition |
| What is the proper standard of review for the board’s decision | Trial court erred in reviewing for ministerial error | Court properly reviews for reasonableness, not mere agreement | Trial court did not err; standard is deferential, reviewing for reasonableness under the record |
Key Cases Cited
- Ltd. Editions Properties v. Town of Hebron, 162 N.H. 488 (2011) (trial court review of planning board decisions; substantial evidence standard)
- Clare v. Town of Hudson, 160 N.H. 378 (2010) (statutory interpretation; plain meaning governs; legislative history only if ambiguous)
- Vogel v. Vogel, 137 N.H. 321 (1993) (precludes extended consideration; standard of review for contested matters)
- DHB v. Town of Pembroke, 152 N.H. 314 (2005) (deferential review of board findings; reasonableness in light of the record)