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                 THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________

Grafton
No. 2014-0775


                              CBDA DEVELOPMENT, LLC

                                          v.

                                TOWN OF THORNTON

                          Argued: September 16, 2015
                          Opinion Issued: April 7, 2016

      Cronin, Bisson & Zalinsky, P.C., of Manchester (John G. Cronin and
Daniel D. Muller, Jr. on the brief, and Mr. Cronin orally), for the plaintiff.


      Drummond Woodsum, of Manchester (Matthew R. Serge on the brief and
orally), for the defendant.

      BASSETT, J. The plaintiff, CBDA Development, LLC (CBDA), appeals an
order of the Superior Court (MacLeod, J.) affirming a decision of the Planning
Board (Board) of the defendant, Town of Thornton (Town), not to consider
CBDA’s second site plan application for a proposed recreational campground.
Applying the subsequent application doctrine set forth in Fisher v. City of
Dover, 120 N.H. 187 (1980), the Board decided that it could not consider
CBDA’s second application because it did not materially differ in nature and
degree from CBDA’s initial application. CBDA argues that the trial court erred
when it: (1) upheld the Board’s decision to apply the Fisher doctrine to
applications before a planning board; and (2) found that the Board reasonably
concluded that CBDA’s second application did not materially differ from its first
application. We affirm.

       Fisher involved a challenge to a zoning board’s grant of a second variance
application. Fisher, 120 N.H. at 188-89. In Fisher, the applicant conceded
that in its second application it sought a variance that “was substantially the
same as the variance previously requested and ultimately denied by the
[zoning] board.” Id. at 188. We held that unless “a material change of
circumstances affecting the merits of the application” has occurred or the
application is “for a use that materially differs in nature and degree from its
predecessor, the board of adjustment may not lawfully reach the merits of the
petition.” Id. at 190. Otherwise, we explained, “there would be no finality to
proceedings before the board of adjustment, the integrity of the zoning plan
would be threatened, and an undue burden would be placed on property
owners seeking to uphold the zoning plan.” Id. at 188. Thus, we concluded
that the zoning board erred as a matter of law when it reviewed and approved
the subsequent application “without first finding either that a material change
of circumstances affecting the merits of the application had occurred or that
the second application was for a use that materially differed in nature and
degree from the use previously applied for and denied by the board.” Id. at
191. We have never held that Fisher applies to successive site plan
applications before a planning board.

       The pertinent facts are as follows. In 2012, CBDA submitted a site plan
application to the Board to develop a parcel of land in the Town. The
application proposed a campground with approximately 250 campsites, each of
which would house a “park model” recreational vehicle with two parking
spaces. As described by the Board, the proposed park models were “basically
. . . mobile home[s]” that were “meant to be permanent.” (Quotations omitted.)
CBDA would sell the park models to campers with one-year leases for each
campsite, renewable for up to 60 years. The park models required professional
removal and could remain on the campsites year-round; nonetheless, the
campground would be closed to visitors for several months during the winter
and spring. The campground would not accommodate campers who did not
own park models.

       The Board held several public hearings on the application, during which
it expressed concerns about the apparently permanent nature of the proposed
campground as evidenced by the mandatory use of park models on each site,
the long-term lease agreements, the year-round storage of park models on
campsites, and the need for professional removal of the park models. The
Board ultimately denied CBDA’s application, noting that “the two basic
reasons” for the denial were that the campground was “not . . . open to the
general public” and that “the initial application presented park model units
with a greater amount of permanency than what is intended in the Thornton
Campground Regulations and State statutes.” In particular, the Board focused


                                       2
upon the permanence and lack of easy portability of the park model structures,
noting that, because the park models required professional removal, they were
more similar to permanent dwellings than to campsites. It also emphasized its
view that a “campground,” as defined in the Town regulations and state
statutes, must be a facility where visitors can come and go on a temporary
basis. (Quotation omitted.) CBDA’s subsequent administrative appeals were
denied, and we affirmed.

       In 2013, CBDA submitted a second site plan application for the same
property. The application proposed a “267 site campground, with associated
access roads, onsite septic systems with site hook-ups, community wells and
[a] public water system with site hook-ups.” The Board held public hearings,
during which, citing the Fisher doctrine, it questioned CBDA about the
differences between the two applications. The Board noted that it could not
consider the merits of CBDA’s second application unless “at a minimum the
new application [had] changed in such a way that it addresse[d] the reasons for
denial [of] the initial application.” CBDA explained that, in response to the
concerns raised by the Board during CBDA’s initial application process, the
second application proposed “more campsites, no requirement for a park model
to be on every site, no requirement for the park model to be purchased on site
from the developer, no long[-]term lease agreement,” and “smaller [camp]sites
for pop-ups and tents.” CBDA also stated that the new application was
designed to “capture as much of the transient business” from the public as
possible, rather than focusing on use by long-term tenants. When asked
whether “the recreational vehicles [would] be stationary on site for the season,”
CBDA responded that the vehicles could be stored on the campsites when
unoccupied, and that there would be “no maximum length of stay.”

       After comparing CBDA’s second application with its prior application, the
Board decided that, although the second application addressed the issue of
public access to the campground, it did not resolve the Board’s concern about
the permanent nature of the park models on the campsites. The Board
unanimously agreed that it could not review CBDA’s second application
because the new application did not materially differ in nature and degree from
the initial application. See Fisher, 120 N.H. at 190.

       CBDA appealed the Board’s decision to the trial court by way of writ of
certiorari. See DHB v. Town of Pembroke, 152 N.H. 314, 318 (2005) (allowing
appellate review by writ of certiorari of planning board’s decision not to accept
an application). CBDA argued that the Board erred when it refused to consider
CBDA’s second application “under the subsequent application doctrine”
because that doctrine “was created in the context of zoning board appeals” and
was not applicable to planning board decisions. Alternatively, CBDA argued
that, even if the subsequent application doctrine applied to applications before
a planning board, the Board acted unreasonably when it concluded that
CBDA’s second application did not materially differ from the initial application.


                                        3
      The trial court affirmed the Board’s decision to apply the subsequent
application doctrine to CBDA’s second application, observing that the policy
goals of Fisher — the finality of proceedings, upholding the integrity of the
zoning plan, and protecting the interests of those who rely upon the zoning
plan, see Fisher, 120 N.H. at 190 — “are as relevant and critical in the
planning board context as they are in zoning board appeals.” The trial court
also ruled that the Board “reasonably found that [CBDA’s] subsequent
application was not materially different” from its original application because
the subsequent application “did not adequately address [the Board’s] explicit
concern about the permanency of the campsites in its proposal.” This appeal
followed.

                                        I

       On appeal, CBDA first argues that the subsequent application doctrine
does not apply in the planning board context. CBDA argues that the policy
rationales underlying our decision in Fisher reflect the particular context of
zoning board appeals, and that there are meaningful differences between the
zoning and planning contexts. CBDA also argues that, because a planning
board is statutorily required to “define through regulation the conditions under
which it will accept an application,” planning boards can achieve finality in
proceedings by adopting regulations that define a “complete application” as one
“which satisfies a standard akin to the subsequent application doctrine.”
Therefore, CBDA argues, the subsequent application doctrine is not needed in
this context. The Town counters that the principles underlying our decision in
Fisher — particularly that of finality — apply with equal force to planning
board decisions, and, therefore, the subsequent application doctrine should
apply in this context. The Town also argues that the fact “[t]hat an application
is technically complete for regulatory purposes . . . does not affect the
applicability of the Fisher doctrine.” We agree with the Town.

      Superior court review of planning board decisions is limited. Upton v.
Town of Hopkinton, 157 N.H. 115, 118 (2008). The appealing party bears the
burden of persuading the trial court that, by the balance of probabilities, the
board’s decision was unreasonable. Id. The review by the superior court is not
to determine whether it agrees with the planning board’s findings, but to
determine whether there is evidence upon which they could have been
reasonably based. Id. Our review of the superior court’s decision is equally
deferential. Upton, 157 N.H. at 118. We will uphold the decision on appeal
unless it is unsupported by the evidence or legally erroneous. Id.

       Although we have never held that the Fisher doctrine applies to
successive site plan applications before a planning board, we agree with the
trial court’s observation that the policy rationales underlying our decision in
Fisher “are as relevant . . . in the planning board context as they are in zoning
board appeals.” See Fisher, 120 N.H. at 188-90. First, finality is essential to


                                        4
planning board proceedings. Administrative finality “prevents repetitive
duplicative applications for the same relief, thereby conserving the resources of
the administrative agency and of interested third parties that may intervene.”
Johnston Ambulatory Surg. Assoc. v. Nolan, 755 A.2d 799, 810 (R.I. 2000); see
also Appeal of Town of Seabrook, 163 N.H. 635, 655 (2012) (observing that the
subsequent application doctrine is a “similar doctrine” to administrative
finality). It also “limits arbitrary and capricious administrative decision-
making, while still preserving the ability of an agency to revisit earlier decisions
when circumstances have changed.” Johnston, 755 A.2d at 810.

      Just as zoning boards act in a quasi-judicial capacity when interpreting
a zoning ordinance and determining whether to grant a variance, see Taber v.
Town of Westmoreland, 140 N.H. 613, 616 (1996), planning boards act in a
quasi-judicial manner when approving or denying a site plan application, see
Winslow v. Holderness Planning Board, 125 N.H. 262, 267 (1984) (referring to
certain actions of a planning board as quasi-judicial). See also Weeks
Restaurant Corp. v. City of Dover, 119 N.H. 541, 544 (1979) (noting that “[t]he
interests of the parties and the type of issues presented in a site plan review do
not differ substantially from those present in the granting of a special exception
or a variance” before a zoning board). Thus, allowing applicants to continue
submitting substantially similar site plan applications would, just as in zoning
board appeals, result in uncertainty about the administrative decision.
Accordingly, we conclude that finality is no less important in the planning
context than in the zoning context. Cf. Johnston, 755 A.2d at 810 (observing
that there “is no inherent reason that the rule [of administrative finality] should
not be generally applicable to most areas of administrative regulation”).

       Moreover, the fact that planning boards must accept for review any
“completed” application does not preclude the application of Fisher in the
planning board context. As CBDA correctly observes, planning boards are
required by statute to “specify by regulation what constitutes a completed
application sufficient to invoke jurisdiction to obtain approval.” RSA 676:4, I(b)
(Supp. 2015). However, determining whether an application is “complete” is an
administrative task by which a planning board ensures only that the applicant
has provided “sufficient information . . . to allow the board to proceed with
consideration and to make an informed decision” as to whether the proposed
development satisfies basic requirements. Id.; see Accurate Transp., Inc. v.
Town of Derry, 168 N.H. 108, 115 (2015) (“According to the plain language of
RSA 676:4, I . . . accepting jurisdiction of a site plan application is merely a
procedural prerequisite to a planning board’s consideration of the merits of an
application.” (emphasis added)). In making that determination, the Board here
utilizes a “Site Plan Review Checklist,” which includes such items as the name
of the site plan and whether the site plan includes provisions for snow removal.

      In contrast, whether a subsequent site plan application materially differs
from a prior application involving the same property is a fact-sensitive inquiry


                                         5
that cannot easily be condensed into a simple checklist. See Fisher, 120 N.H.
at 190-91 (“The determination of whether changed circumstances exist is a
question of fact which necessitates a consideration of the circumstances which
existed at the time of the prior denial.” (quotation omitted)). Thus, as the trial
court observed:

             The fact that planning boards are required by statute to
      consider “completed” applications does not supersede the interests
      of finality and judicial efficiency embodied by the Fisher doctrine.
      Indeed, it would be a waste of administrative resources for the
      planning board to repetitiously reconsider an application it had
      previously denied simply because each time the application
      submitted contains all materials to be considered “complete” under
      the planning board’s regulations.

      As to the two remaining rationales underlying our decision in Fisher —
upholding the integrity of the zoning plan and protecting the interests of those
relying upon the plan — CBDA argues that, because site plan review “does not
concern whether a use is appropriate for a particular parcel of land,”
subsequent site plan applications do not constitute a threat to the zoning plan.
We disagree.

       Although site plan review “does not give the planning board the authority
to deny a particular use simply because it does not feel that the proposed use
is an appropriate use of the land,” Summa Humma Enters. v. Town of Tilton,
151 N.H. 75, 78 (2004) (quotation omitted), we have recognized that site plan
review is not merely a “mechanical exercise” of implementing the “specific
limitations imposed by ordinances and statutes.” Id. at 79. Rather, the
planning board has the authority to impose conditions upon site plans that are
reasonably related to land use goals and other considerations within its
purview, including assuring that sites “will be developed in a safe and
attractive manner and in a way that will not involve danger or injury to the
health, safety, or prosperity of abutting property owners or the general public.”
Id. at 78 (quotation omitted). For instance, in Summa Humma, the plaintiff
argued that the planning board lacked the authority to deny a proposal to
construct a 90-foot flagpole because there was no controlling statute or zoning
ordinance regulating the height of flagpoles. Id. We disagreed, holding that,
because the planning board had concluded that a flagpole of no more than 50
feet in height was necessary for the “safe and attractive development” of the
site, the planning board had the authority to limit the height of the proposed
flagpole. Id. at 78-79 (quotation omitted).

       Thus, as Summa Humma makes clear, planning board decisions — like
zoning board decisions — affect the development of municipalities. Indeed, site
plan review is designed to ensure that, in “cases where it would not be feasible
to set forth in the [zoning] ordinance a set of specific requirements upon which


                                        6
a building inspector could readily grant or refuse a permit,” sites are developed
in such a way that they “fit into the area in which they are being constructed
without causing drainage, traffic, or lighting problems.” Id. at 78 (quotations
omitted). Thus, just as community members rely upon zoning boards to
uphold the integrity of zoning plans, they may reasonably expect planning
boards to make decisions that will not negatively affect their properties.

       Finally, we note that nothing in our case law restricts Fisher to zoning
board decisions. As we have recognized, “[t]he rule in Fisher is consistent with
the majority rule that a new application for administrative relief or development
permission may be considered by a board if there is a substantial change in the
circumstances or the conditions relevant to the application.” Brandt Dev. Co.
of N.H. v. City of Somersworth, 162 N.H. 553, 556 (2011) (quotation and
ellipsis omitted); see 4 E. Ziegler, Jr., Rathkopf’s The Law of Zoning and
Planning § 68:9 (2012). Accordingly, we hold that the subsequent application
doctrine set forth in Fisher applies in the planning board context. Thus, the
trial court did not err when it upheld the Board’s decision to apply the
subsequent application doctrine to determine whether it could properly
consider CBDA’s second site plan application.

                                        II

      CBDA next argues that its second application was materially different
from its prior application, and, consequently, the trial court erred by upholding
the Board’s decision not to consider the merits of the application. CBDA
argues that the Fisher doctrine “does not bar subsequent applications in which
the applicant makes an effort to address [the] concerns raised [by the Board]
with respect to the initial denied application.” The Town counters that the
Board properly denied CBDA’s subsequent application under the Fisher
doctrine because it concluded that the modified application did not sufficiently
resolve the Board’s concerns about the initial application. We agree with the
Town.

       Applying the Fisher doctrine in this context, an applicant before a
planning board bears the burden of demonstrating that a subsequent
application “materially differs in nature and degree from its predecessor.”
Fisher, 120 N.H. at 190. The determination of whether changed circumstances
exist is a question of fact. Id. at 190-91. This determination must be made, in
the first instance, by the Board. See Hill-Grant Living Trust v. Kearsarge
Lighting Precinct, 159 N.H. 529, 536 (2009). On appeal, the board’s factual
findings are deemed prima facie lawful and reasonable. Morgenstern v. Town
of Rye, 147 N.H. 558, 565 (2002). We will uphold the trial court’s decision
unless it is not supported by the evidence or is legally erroneous. Id.

     We have held that Fisher does not preclude consideration of a
subsequent application ― explicitly or implicitly invited by a zoning board ―


                                        7
which has been modified to address the board’s concerns about the initial
application. Hill-Grant, 159 N.H. at 536. For example, in Morgenstern, we
concluded that the trial court erred when it upheld the zoning board of
adjustment’s (ZBA) conclusion that, under Fisher, it could not consider the
plaintiff’s second application for a variance. Morgenstern, 147 N.H. at 566. We
explained:

      Throughout the litigation in this case, the town has taken the
      position that it denied the plaintiff’s request for a variance because
      of concerns about the particular proposed structure’s impact on
      the wetlands. Yet, when the plaintiff submitted a new application
      . . . that allegedly addressed these concerns, the ZBA declined to
      hear the application on the merits because it concluded that the
      application did not differ materially from the [original] application.

Id. at 564-65. Thus, we concluded that, “[g]iven the nature of the plaintiff’s
initial application and the ZBA’s reasons for denying the variance,” the trial
court erred when it upheld the ZBA’s refusal to consider the subsequent
application because it was submitted “at the town’s invitation” and addressed
the ZBA’s specific concerns “about the proposed structure’s impact on the
wetlands.” Id. at 566.

       Similarly, in Hill-Grant we concluded that Fisher did not preclude the
consideration of a second application for a variance when the ZBA had
expressed that it was willing to consider an application with specific
modifications. Hill-Grant, 159 N.H. at 535-37. In that case, the plaintiff
sought a permit to build a house at an elevation higher than the zoning
ordinance limit of 900 feet. Id. at 531. The ZBA denied the initial request, but
stated that, although it would not grant a general variance to build above the
proscribed height, if the applicant resubmitted its application with a “specific
location” and “certain elevation,” the ZBA might grant a variance. Id. at 531,
536 (quotations omitted). We observed that “it is logical to presume that if the
ZBA invites submission of a subsequent application modified to meet its
concerns, it would find an application so modified to be materially different
from its predecessor, thus satisfying Fisher.” Id. at 536 (emphasis added).
Thus, we concluded that the ZBA could consider the plaintiff’s subsequent
application to build on its property. Id. at 536-37.

      Accordingly, before accepting a subsequent application under the Fisher
doctrine, a board must be satisfied that the subsequent application has been
modified so as to meaningfully resolve the board’s initial concerns. When a
board has identified fundamental issues with an application, those issues must
be addressed before the board — as well as the interested community members
— should be required to invest additional time and resources into considering
the merits of the application. An administrative board “should not be required
to reconsider an application based on the occurrence of an inconsequential


                                        8
change, when the board inevitably will reject the application for the same
reasons as the initial denial.” Brandt, 162 N.H. at 556 (quotation omitted).

       Here, the Board reasonably concluded that CBDA’s modified application
was not “materially different” from CBDA’s initial site plan application.
Although the Board identified two primary reasons for its denial of the initial
application — that the campground was “not . . . open to the general public”
and “the initial application presented park model units with a greater amount
of permanency than what is intended in the Thornton Campground
Regulations and State statutes” — it is clear from the record that the Board’s
principal concern was the permanency and relative immobility of the proposed
park model units. When denying the initial application, the Board noted that
the park models were more similar to permanent dwellings than to campsites,
and emphasized that a “traditional campground” was occupied on a temporary
basis. (Quotation omitted.) When reviewing CBDA’s subsequent application,
the Board expressed continued concerns about the permanency of the
proposed campground. In particular, the Board noted that whether the park
model units would be able “to stay year round” was “a critical issue relative to
the initial application.” The Board also cited CBDA’s statement that, despite
the changes contained in the new application, 219 campsites could still be
occupied by park models, and observed that, given this fact, and because park
models “are not generally set up for temporary use,” the “temporary occupancy
of the campsites ha[d] not been addressed in the second application.” The
Board noted that if CBDA had prohibited the use of park models on the
campsites or limited the time that each campsite could be occupied by a park
model, CBDA’s proposal would have been materially different because it would
have resolved its concern about the permanency of the campsites.

       Although under CBDA’s second application, it was only possible —
rather than certain — that 219 campsites would be occupied by park models,
the Board was not, for that reason, required to conclude that the second
application was materially different from the first. As CBDA acknowledges on
appeal, “the public’s preferences will dictate the camping units present on the
site as well as [the] length[] of stay during the time when the campground is
open.” Thus, the principal issue of concern to the Board was not resolved.

       Accordingly, we conclude that the record supports the Board’s refusal to
consider CBDA’s second application and that the trial court did not err by
affirming the Board’s decision. Although CBDA identifies other arguments in
its brief, because these issues were not raised in the notice of appeal, the
issues were not properly preserved and are deemed waived. See Dupont v.
N.H. Real Estate Comm’n, 157 N.H. 658, 662 (2008).

                                                 Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.


                                       9
