For the complete appeal the download is below: III. SUMMARY OF THE APPEAL 16. The proposed Project is a proposed re-development of the existing Green Meadow Golf Club and surrounding land into the Hillwood Logistics Center, a large logistics and fulfillment center in Hudson, New Hampshire. 17. The proposed Project would be a “commercial development consisting of three (3) new distribution and logistics buildings with associated access ways, parking, stormwater/drainage infrastructure and other site improvements.” Meeting Minutes, Town of Hudson Planning Board, April 7, 2021. 18. The three buildings are proposed to include approximately 2,600,400 square feet in total and have additional associated stormwater management, parking, and loading areas. 19. The Project as proposed includes approximately 399.12 acres of land with approximately 39.9 acres (roughly 10% of the total area) of wetlands. 20. The Planning Board’s decision to grant the site plan was illegal or unreasonable because the decision is contrary to the evidence, is unsupported by the evidence submitted by the Project applicant, and the Project does not meet the requirements of the Town of Hudson Site Plan Regulations. 4 IV. PROCEDURAL HISTORY 21. The Project application was submitted to the Hudson Planning Board on April 21, 2020, including an application for a Conditional Use Permit for impacts in the Wetland Conservation District as described in the Zoning Ordinance, Article XI. 22. The full Project application, including the full site plan application, consisted of many documents and supplements which will be more specifically identified once the Town produces the certified record. 23. The Planning Board declared this application to be a Development of Regional Impact pursuant to RSA 36:55 on May 6, 2020. 24. The Planning Board has held at least ten public meetings and public hearings since May 27, 2020. 25. Since the beginning, this Project has seen significant public participation and comment, including thirty-four in-person comments and forty-three written comments at the first meeting alone, and this during one of the more heightened periods of the pandemic. 26. Though the Planning Board subjected much of the Applicant’s information concerning site plan to third- party peer review, upon information and belief to be confirmed upon production of the certified record, the Planning Board did not have the benefit of thirdparty peer review for all submissions and updates by the applicant. 27. Throughout the Planning Board’s process, Plaintiffs (and others) submitted multiple letters to the Planning Board summarizing the concerns of both citizens and experts regarding concerns over the site plan. 5 28. On April 7, 2021, public comment was received and deliberations on the Wetland Conditional Use Permit and Site Plan application began but were continued to the April 21 meeting. Attorney Manzelli also submitted written comment on the site plan. 29. On April 21, 2021, the Planning Board deliberated further and approved the Wetland Conditional Use Permit. An appeal of that decision has already been filed and is Docket No. 226-2021-CV-00268. 30. On May 5, 2021, the Planning Board approved the Project site plan with over seventy conditions. This appeal follows. 31. On May 11, 2021, the Selectboard denied reconsideration of its prior reconsideration and approval upon reconsideration of a new sewer allocation. 32. Appeal of the Selectboard’s decision was filed on June 2, 2021. V. STANDARD OF REVIEW 33. This appeal is made pursuant to RSA 677:15. 34. Pursuant to RSA 677:15, I, “[a]ny persons aggrieved by any decision of the planning board concerning a plat or subdivision may present to the superior court a petition, duly verified, setting forth that such decision is illegal or unreasonable in whole or in part and specifying the grounds upon which the same is claimed to be illegal or unreasonable.” 35. Planning Board decisions on site plan applications are appealed directly to Superior Court. 36. Pursuant to RSA 677:15, V, “[t]he 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.”6 37. The Planning Board’s factual determinations must be treated by the Court as “prima facie lawful and reasonable and cannot set aside [the Planning Board’s] decision absent unreasonableness or an identified error of law.” Summa Humma Enterprises, LLC v. Town of Tilton, 151 N.H. 75, 79 (2004). 38. Instead, the Court must evaluate the record and decision to “determine whether there is evidence upon which [the Planning Board’s factual findings] could have been reasonably based.” Id. (citation omitted). 39. As the appellant, any plaintiff “bears the burden of persuading the trial court that, by the balance of probabilities, the board’s decision was unreasonable.” Summa Humma Enterprises, LLC, 151 N.H. at 79. 40. If an appeal raises questions of law, those questions are reviewed de novo. See Appeal of St. Joseph Hosp., 152 N.H. 741, 744, 886 A.2d 1005 (2005). VI. LEGAL ANALYSIS 41. The Planning Board’s decision to approve the site plan application for this Project was unlawful and unreasonable because the decision was contrary to the weight of the evidence and did not comply with the legal standards in the Town of Hudson Site Plan Regulations. 42. Here, the Planning Board was faced with significant public opposition and a lack of sufficient, credible evidence submitted by the Project applicant to support the grant of the site plan approval. 43. Several issues arose during review and approval of the site plan, including property values, traffic, due process, recusal of Town board members, noise, aesthetics, and setbacks, which are discussed fully in the following sections. 7 A. Applicant Provided No Evidence to Prove No Significant Decrease in Property Values 44. The applicant is required to prove that the Project would not significantly decrease the values of surrounding property values pursuant to Town of Hudson Site Plan Regulations Section 275-6(A). 45. That section states, the Planning Board “shall require that adequate provisions be made” for “no significant diminution in value of surrounding properties ….” 46. The applicant provided documents related to property values of nearby properties in June 2020 which, overall, opined the Project would have no diminution in value of surrounding properties. 47. The Town’s peer reviewing consultant, Russ Thibeault of Applied Economic Research, submitted written and verbal testimony that the applicant did not provide any information that would satisfy this requirement to prove no significant decrease in the values of surrounding properties. 48. Members of the Planning Board also expressed concerns about the applicant’s evidence on this requirement, including that the applicant erroneously excluded relevant sales from its market analysis. 49. There was also no discussion of the failure of 5 Par Lane to sell after the application for the proposed Project was made known to the general public. 50. Eventually, the applicant submitted additional documentation about property values in or around November 2020. 51. However, the additional documentation was mostly in the nature of an update, given the passage of nearly a year since the applicant’s consultant’s original analysis.8 52. The additional documentation did not cure any of the methodological or other foundational flaws and omissions the Town’s peer reviewing consultant had previously identified. 53. The Town’s peer reviewer did not review the updated documentation. 54. Therefore, as the Planning Board’s record stands, the Town’s peer reviewer has opined verbally and in writing that the applicant has provided no evidence to meet this legal standard and the applicant has provided nothing to cure that omission. 55. Instead, the Planning Board based its decision on property value information that was criticized and effectively rejected by its own peer reviewing expert. 56. That property value data cannot support a finding by the Planning Board that the Project would not cause a significant diminution in value of surrounding properties. B. Record Demonstrates Insufficient Evidence to Support Applicant Met Traffic Requirements 57. The Planning Board is required to consider the impact the Project would have on traffic circulation and access pursuant to Town of Hudson Site Plan Regulations Section 275- 6(B) and Section 275-6(K). 58. The area where the proposed Project would be located already suffers from high levels of traffic congestion. 59. Adding significant additional truck traffic as is characteristic of a logistics and fulfillment center will make traffic in this area of Hudson significantly worse. 60. Plaintiffs’ traffic expert, Kim Hazarvartian, submitted a report dated October 21, 2020 and stated that the applicant has not provided sufficient, credible evidence, including a failure to analyze the impact of queueing caused by the proposed Project upon the residential and commercial driveways along Lowell Road, the area’s main thoroughfare. 9 61. Mr. Hazarvartian, as well as many others, including many Planning Board members, also highlighted many issues with the applicant’s analysis of the evidence the applicant did provide. 62. As one important example, Mr. Hazarvartian, noted that the application called for more docks and more parking spaces than were noted and accounted for in the traffic analysis. 63. The applicant’s response was that it purposefully planned to have empty and unused docks and parking spaces. Accordingly, the applicant never submitted, and no one else ever prepared, a traffic analysis accounting for full usage of all planned docks and parking spaces. 64. Another important flaw is that the applicant has not proven it has the legal right to construct traffic improvements necessitated by the Project. 65. The applicant proposed certain traffic improvements that it proposes to make, under the guise of merely helping out Hudson, and claiming the traffic improvements were needed regardless of the Project because the traffic in Hudson is already bad. 66. The applicant specifically disavows that the said improvements it proposes to voluntarily provide to the Town would be required to prevent significant increases in traffic congestion due to truck traffic to and from the proposed Project. 67. Vanasse Hangen Brustlin, Inc. (“VHB”) peer reviewed traffic for the Town. 68. In its October 15, 2020 letter, VHB noted that the improvements to local intersections were necessary for the site-generated vehicle trips from the Project. 69. VHB also noted the applicant had not provided any proof that it owned or could acquire the property along the exiting right-of-way required to construct the improvements.10 70. VHB noted that the applicant “needs to demonstrate that there is available ROW, or the ability to acquire the needed ROW to construct the roadway upgrades that are being proposed while meeting design requirements.” VHB Peer Review Letter, dated October 15, 2020, contained in Planning Board Meeting Packet for October 21, 2020. 71. Those rights would have to be obtained from the private landowners abutting the streets, because the applicant, the Town, and the State do not own sufficient width to fit the proposed improvements. 72. Nothing in the record demonstrates the applicant has obtained these required rights or any type of option to acquire them in the future. 73. Further, under Part I, Article 12 of the New Hampshire Constitution, the Town cannot take private land for the benefit of this private development. Merrill v. City of Manchester, 127 N.H. 234, 236–37 (1985). 74. Another notable problem among many is that in addition to the prior concerns for vehicular traffic, the applicant has overlooked or neglected to fully consider bicycle traffic in its traffic plan though the Town of Hudson Site Plan Regulations at Section 275–6(C) require consideration of both pedestrian and bicycle safety. 75. The addition of or changes to the turn lanes on the vehicular roadway will have impacts on the width and accessibility of the shoulder lanes for bicycle passage and safe bicycle turning, as noted in the Packet for October 21, 2020, p. 91. 76. Without full consideration of bicycles, any site plan is not sound. C. Members of the Planning Board Participated Despite Having Conflicts of Interest 77. Several members of the Planning Board, including members of the Selectboard seated as Planning Board members, have shown prejudice against the Plaintiffs, shown bias and 11 prejudgment in favor of the applicant, and/or have other disqualifying conflicts of interests, but failed to recuse themselves even after requests to do so. 78. “No member of a . . . planning board . . . shall participate in deciding or shall sit upon the hearing of any question which the board is to decide in a judicial capacity if that member has a direct personal or pecuniary interest in the outcome which differs from the interest of other citizens, or if that member would be disqualified for any cause to act as a juror upon the trial of the same matter in any action at law.” RSA 673:14, I. 79. “Administrative officials who serve in an adjudicatory capacity are presumed to be of conscience and capable of reaching a just and fair result. The burden is upon the party alleging bias to present sufficient evidence to rebut this presumption.” Webster v. Town of Candia, 146 N.H. 430, 441–42 (2001) (citation omitted). 80. Additionally, Hudson Planning Board Rules of Procedure, Section IV(5)(a) states, “[i]f any Member finds it necessary to disqualify him/herself from sitting in particular case, he/she shall notify the Chairman as soon as possible so that an Alternate may sit in his/her place. The disqualification shall be announced before the beginning of the public hearing on the case by the Chairman or the Member disqualifying him/herself. The Member disqualifying him/herself shall absent him/herself from the Board table during the public hearing and during all deliberations on the case.” 81. Specifically, Selectman Morin was heard making statements to members of the public who oppose the Applications to the effect of: (1) we have ways to take care of people like you; and (2) we aren’t going to put up with your bullshit anymore. 82. Selectman Coutu had prior knowledge of this project since at least January 22, 2019, participated in advocacy efforts with the Governor’s Office related to furtherance of the 12 Project prior to the application being filed, and has been an outspoken proponent of the so-called Circumferential Highway, which is connected to the approval of the proposed Project due to State funding commitments. 83. In addition, Planning Board Member Ulery has shown an inability or unwillingness to be impartial through his membership and outspoken support of far-right political organizations and inappropriate comments about now-Vice President Harris. 84. Because it is impossible to estimate the influence that any member participating with a conflict of interest may have had on the rest of the board, the remedy for any decision rendered with the participation of any member who had a conflict is voiding the decision and the board repeating the process anew, in its entirety, without the conflicted member/s. Appeal of City of Keene, 141 N.H. 797 (1997). D. Planning Board Wrongfully Accepted Erroneous Noise Study 85. The Planning Board approved the site plan despite the applicant’s evidence on noise being in error, at least in part. 86. The Town of Hudson Site Plan Review Regulations require that the Planning Board “shall require that adequate provisions be made” for “[e]limination of undesirable and preventable elements of pollution, such as noise …” Section 275-6(H). 87. In addition to the general requirement above, the Town of Hudson has its own noise ordinance which is detailed and technical and imposes several different types of noise limits. Section 249:1 – 9. 88. As one example of the errors contained in the applicant’s evidence on noise, the study the applicant most recently submitted to the Planning Board misstated the requirements of the Town of Hudson ordinance. 13 89. Perhaps the clearest occurrence is where the applicant’s study states that Section 249-4(B) “limits continuous sound from a site . . .” when the regulation actually limits “the continuous sound level . . ..” 90. The difference is that the continuous sound level includes both sound from the site as well as all other sources already present, a difference of up to three decibels, which could be the difference between satisfying the legal requirements or not. 91. As one more example, the sound wall was initially proposed to be constructed of a composite material especially for acoustical abatement but was later redesigned to be a simple wooden wall. However, the applicant did not update its analysis so the record contains nothing about how effective (or not) the wooden wall is expected to be. 92. The Planning Board did not require the applicant to make appropriate corrections and, therefore, wrongfully approved the site plan because, with these errors present and evident in the record, the record does not evince that the Project meets the legal requirements for noise limits. E. Planning Board Deprived Plaintiffs of Due Process Rights 93. The Planning Board did not provide adequate due process to members of the public, including the Plaintiffs, when reviewing and evaluating this site plan application. 94. During a Planning Board public hearing “any . . . abutter, . . ., or any person with a direct interest in the matter may testify in person or in writing” and “[o]ther persons may testify as permitted by the subdivision regulations or the board at each hearing.” RSA 676:4, I(e). 95. New Hampshire law recognizes the important role of the public in land use proceedings. See 1808 Corp. v. Town of New Ipswich, 161 N.H. 772, 774 (2011) (affirming the decision of a Zoning Board of Adjustment that included the statement “[g]iven the significant 14 change of use, the abutters and other interested parties are due the opportunity to participate in the due process offered through the variance and special exception application process”). 96. Members of the public have a constitutional right to due process in the Planning Board’s proceedings on the Applications. See Appeal of Lathrop, 122 N.H. 262, 265 (1982) (citing U.S. Const. amends. V and XIV; N.H. Const. pt. 1, art. 35; In re Murchison, 349 U.S. 133, 136 (1955); Withrow v. Larkin, 421 U.S. 35, 46 (1975); Gibson v. Berryman, 411 U.S. 564, 579 (1973); In re Jack O’Lantern, Inc., 118 N.H. 445, 449 (1978); N.H. Milk Dealers’ Ass’n v. Milk Control Board, 107 N.H. 335, 337-38 (1966)). 97. Pursuant to RSA 676:4, IV, “Procedural defects shall result in the reversal of a planning board’s actions by judicial action only when such defects create serious impairment of opportunity for notice and participation.” 98. The two cornerstones of due process are notice and an opportunity to be heard. See e.g. Starr v. Governor, 154 N.H. 174, 180 (2006) (holding that the New Hampshire legislature satisfied due process requirements because members of the public were provided adequate notice to be able to attend hearings at which they had and used their opportunity to speak). 99. Here, public participation was routinely and systematically impaired or prohibited. While the public had some notice and some opportunity to be heard, it was not meaningful and, as a consequence, the public’s due process was violated. 100. Following are some examples of the ways in which the Planning Board limited public participation. 101. First, opportunity for public comment was often scheduled as the last item on the agenda of meetings that often ran late into the night. That meant that a couple of the applicant’s 15 representatives were given leave to present for hours, from approximately 7:00 p.m. to 10:00 p.m. or later, and then many members of the public and their counsel were each given only three minutes at a very late hour, after many members of the public and others had already had to leave the meeting and after most people’s ability to speak or listen effectively had expired. 102. Second, because of the rushed and late nature of public comment, at least once during the Planning Board’s proceedings, Plaintiffs’ counsel, who was attending remotely (as a result of having covid symptoms that were later diagnosed as covid) was prevented from making legal argument to the Planning Board and instead the Planning Board muted Plaintiffs’ counsel in the middle of her oral argument, leaving her with no option to complete her statement. 103. Third, the Planning Board opted to dedicate its meetings on the application to specific topics (traffic, economics, etc.). However, it did not consistently provide advance notice of what topics would or would not be covered at which meeting. Also, for some topics it did not allow any public testimony at all. 104. Fourth, the Planning Board repeatedly held public hearings in a venue too small to allow for all of the members of the public who desired to attend to fit inside the venue while also maintaining the required social distancing. Because the Planning Board conducted the proceedings primarily in an in-person fashion, remote options were not meaningfully equivalent to in-person options. Remote availability to these proceedings was not even available at the initial proceedings, therefore preventing many people from any participation in those hearings. 105. For several of the initial months of the Planning Board’s proceedings, a large portion of the venue was left empty because of the placement of the Planning Board’s seating towards the middle of the room rather than towards one end of the room, where they eventually relocated.16 106. The overflow space for Planning Board hearings consisted of a large screen outside in a parking lot with no chairs, making it difficult or impossible for many members of the public to observe and participate during multi-hour meetings, especially in inclement weather. 107. Fifth, the Planning Board effectively waived its established two-weeks-ahead deadline and often accepted new materials from the applicant up to and at the time of Planning Board meetings. Yet, the Planning Board expected members of the public and counsel to provide testimony on the content of that new material the very same night it was provided and did not allow the public any opportunity to comment after having had a meaningful time to review it. 108. Sixth, members of the public, including Plaintiffs, requested records pursuant to the right-to-know law (RSA 91-A) but the Town, including the Planning Board, did not comply with legal requirements when responding, including that not all responsive records have been produced to date. Though the violation of RSA 91-A is the subject of a separate lawsuit, Docket No. 226-2021-CV-00161, the deprivation of this information also amounted to a violation of Plaintiffs’ due process rights. 109. For all of these reasons, the Planning Board has violated the Plaintiffs’ rights to procedural due process. F. Overwhelming Weight of Evidence Does Not Support Applicant Satisfied Required Standards on Aesthetics 110. The Town of Hudson Site Plan Regulations require the Planning Board to consider aesthetics of the proposed development under Town of Hudson Site Plan Regulations Section 275-6(A). 111. Planner Carol Ogilvie submitted letters to the Planning Board and the applicant dated October 9, 2020 and December 21, 2020. 17 112. Ms. Ogilvie outlined the impacts of the proposed Project and discussed the visual impact of the Project as a whole and of a proposed berm and sound wall on abutters in the residential neighborhood. 113. Between Ms. Ogilvie’s expert opinion, the credibility of which was never challenged, and the voluminous public input, the weight of the evidence in the Planning Board’s record does not support any finding that the Project would satisfy the required standards for aesthetics. G. Planning Board Wrongfully Allowed Improvements Inside Setback 114. By approving the site plan, the Planning Board did not properly apply the setbacks required by Hudson Law. 115. Because of the impactful nature of the Project and the close proximity of it to the abutting residential neighborhood, the Project proposes an earthen berm larger than approximately forty average-sized homes lined up end to end, and an acoustical sound wall on top of the berm. 116. Town of Hudson, NH, Land Use General and Administrative Requirements and Definitions, Section 276-11.1.B(12)(a) (“Setback Regulation”) states, “In the General (G) and the General-One (G-1) Zoning Districts, where a proposed industrial use abuts or is across a HIGHWAY from a residential use, there shall be a two-hundred-foot distance from the residential property line to any improved part of the industrial development.” 117. This is a typical regulatory provision to protect residential uses from abutting nonresidential uses.18 118. The sound wall, berm, and stormwater structures on the proposed Project are “any improved part of the industrial development,” the Project is in the G-1 District, and is an industrial use abutting a residential use. 119. Consequently, sound wall, berm, and stormwater structures are subject to the 200- foot setback established by this section. 120. However, the site plan the Planning Board approved has substantial parts of all of types of these improvements located within, in some cases mere feet away from, abutting residential property lines. 121. The record, and therefore the Planning Board, lacked any lawful basis upon which to allow these structures to be located inside the setback. CONCLUSION For the foregoing reasons, the decision of the Town of Hudson Planning Board to approve the applicant’s site plan for the proposed Project was unlawful and/or unreasonable and, consequently,
Plaintiffs respectfully seek the relief requested below.
WHEREFORE, Plaintiffs respectfully request this Honorable Court: A. Issue a certiorari order: (1) directing the Planning Board to review its decision and prescribe a time for the return of the Planning Board decision to be served upon Plaintiffs’ attorney; and (2) directing that the order appealed from is stayed; B. Order the Planning Board to produce its certified record by a prescribed time; C. Schedule a hearing on the merits based on the certified record; or, alternately, order the parties to confer and attempt to propose an agreed upon case schedule;19 D. Find and rule that the Town of Hudson Planning Board’s decision to approve the site plan was unlawful and/or unreasonable and reverse the decision; and E. Grant any other relief as is just. Respectfully submitted, Rita Banatwala, Jerome Bento, Linda Bento, James Crowley, Kathleen Crowley, Sandra Dubuc, Michael Hancock, Leonard J. Leone, Rachel McGraw, Christopher Mulligan, Brian Noone, Gregory Palmer, Mary Palmer, Forrest L. Ruby, Michael T. Ruby, Ruth Sessions, and Peter Sessions By their Attorneys, BCM Environmental & Land Law, PLLC Dated: June 3, 2021 /s/ Amy Manzelli, Esq. By: Amy Manzelli Esq. (17128) 3 Maple Street Concord, NH 03301