Wetlands Conditional Use Permit (CPU)

October 14, 2023
Appeal of Beal, et al.
Docket: 2022-0182

Opinion Date: October 12, 2023

Judge: Gary E. Hicks

Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

     Petitioners James Beal, Mary Beth Brady, Mark Brighton, Lenore Weiss Bronson, Nancy Brown, William R. Castle, Lawrence J. Cataldo, Ramona Charland, Lucinda Clarke, Fintan Connell, Marjorie P. Crean, Ilara Donarum, Joseph R. Famularo, Jr., Philippe Favet, Charlotte Gindele, Julia Gindele, Linda Griebsch, Catherine L. Harris, Roy W. Helsel, John E. Howard, Nancy B. Howard, Elizabeth Jefferson, Cate Jones, Robert McElwain, Mary Lou McElwain, Edward Rice, April Weeks, Michael Wierbonics, and Lili Wierbonics, appealed a Housing Appeals Board (HAB) order that reversed a decision of the Portsmouth Zoning Board of Adjustment (ZBA), which, in turn, had reversed certain approvals granted by the Portsmouth Planning Board (Planning Board) to respondent, Iron Horse Properties, LLC (Iron Horse).

Iron Horse owned real property at 105 Bartlett Street in Portsmouth.  In 2021, it requested various approvals from the Planning Board in connection with its proposed redevelopment of the site: three multi-family apartment buildings with a total of 152 dwelling units.  Iron Horse sought a site review permit, lot line revision permit, conditional use permit (CUP) for shared parking and a wetland CUP.   The Planning Board granted the approvals and the petitioners, describing themselves as “a group of abutters and other concerned citizens,” then filed an appeal with the ZBA.  The ZBA granted the appeal, effectively reversing the Planning Board’s site plan and CUP approvals.

Following denial of its motion for rehearing, Iron Horse then appealed the ZBA’s decision to the HAB.  The HAB reversed the ZBA’s findings as to six of the petitioners’ claims and dismissed the remaining three claims.  Petitioners took their appeal to the New Hampshire Supreme Court, raising a number of issues that were consolidated under two overarching questions:

(1) whether Iron Horse’s proposed project met the six criteria for a wetland CUP set forth in section 10.1017.50 of the Portsmouth Zoning Ordinance; and

(2) whether Iron Horse’s permit requests were barred under the doctrine of Fisher v. City of Dover, 120 N.H. 187 (1980).   Finding no reversible error in the HAB’s decision, the Supreme Court affirmed.


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