When the planning board votes to disapprove any application submitted to it, the board must issue a final written decision, RSA 676:3, and the ground for such disapproval “shall be adequately stated upon the records of the planning board.” RSA 676:4, I(h). In this case, the planning board did not issue a written decision that outlined its reasons for denying the application for a special use permit, instead relying on its meeting minutes to set out its reasoning for denying the application. While the Court did not rule that such a practice was a per se violation of the statute, it did find that the meeting minutes failed to sufficiently apprise the applicant, Motorsports, of the planning board’s reasoning for denial.
Prior cases of the Court have held that a written denial letter, even a general one, when combined with meeting minutes that adequately state the grounds and reasoning for the denial, can satisfy the statutory requirements of RSA 676:4, I(h). Here, the Court pointed to two legal flaws in the meeting minutes that rendered them insufficient for purposes of those statutory requirements. First, the minutes revealed that there was confusion among the board members as to how the town’s Wetlands Conservation Ordinance (WCO) should be applied to the Motorsports property and, thus, when the board voted on the project as a whole, it is unknown whether the board members properly applied the applicable section of the WCO. Second, while the planning board voted on each of the seven criteria contained within the WCO and noted which of the seven were not met by Motorsports, it did not specify which of the wetland impacts or buffer zones were considered problematic. The Court concluded that the planning board did not provide an adequate record of its reasoning to allow a reviewing court to render a meaningful review. The Court rejected the suggestion that “the superior court was required to comb through the voluminous record to ascertain, if possible, what portion of the proposed project caused which disqualifying wetland impacts.” The lesson here is to create a record that makes it clear, both to the parties to the case and to a potential reviewing court, the reasoning that led the planning board to disapprove the application. Meeting this obligation will require careful and precise discussion in the meeting minutes or a detailed written decision.
An interesting but unanswered theory was raised by Motorsports. It argued that, since a majority of the original planning board members who heard the case are no longer on the board, a remand is no longer available and the Court should vacate the planning board’s denial. The Court referred to it as a “novel notion” premised on the theory that the applicant is entitled to the same planning board members to decide the matter on remand. However, the Court refused to address the argument because an adequately developed legal argument and legal support were not supplied. Given that it is not unusual for particularly complicated and involved cases like this one to take many months to conclude, with resignations, elections and term expirations occurring during the process, it seems hard to imagine that a court could hold that remand is only an option when a majority of the original planning board members remain on the board.
On this final point, it is well to remember that as new members come on board, or serve as alternates for one or more meetings on a case that is heard over several months, these members should review all records of the case prior to their participation to bring themselves “up to speed” on the case. This will ensure that all members have the same information and will likely greatly reduce the chance of a successful challenge to the member’s participation in the case.