Justia Zoning, Planning & Land Use Opinion Summaries

Plaintiff Town of Conway (Town) appealed a superior court order granting defendant Scott Kudrick's motion for judgment on the pleadings. The court ruled that the Conway Zoning Ordinance (2013) (hereinafter, “CZO”) permitted a non-owner-occupied short-term rental (STR) in the Town’s residential districts because such use of a property fell within the CZO’s definition of a “residential/dwelling unit.” The Town argued that the court erroneously interpreted the CZO to allow non-owner-occupied STRs in residential districts. After review, the New Hampshire Supreme Court concluded the trial court correctly interpreted the CZO and held that the CZO permitted non-owner-occupied STRs in the Town’s residential districts. View "Town of Conway v. Kudrick" on Justia Law

Petitioner Town of Amherst (Town) appealed Housing Appeals Board (HAB) orders vacating the denial by the Town’s planning board (Board) of subdivision and site plan approval sought by the respondents, Migrela Realty Trust II and GAM Realty Trust (collectively, Applicant). In November 2020, Applicant filed a subdivision/site plan approval application with the Board for 54 age-restricted and unrestricted housing units. Applicant previously had been granted a conditional use permit (CUP) for “an increased project density” of up to 54 units under the Town’s since-repealed Integrated Innovative Housing Ordinance (IIHO). During the review process with respect to the subdivision/site plan application, the project’s density was reduced from 54 to 49 units. The composition of age-restricted and unrestricted units was also modified, with the final plan designating 14 units as age-restricted, 65-and-older units and the remaining 35 units as unrestricted. In April 2021, the Board denied the site plan because: (1) the Board perceived conflicts between the proposed project and federal law; and (2) “the proposed design does not protect and preserve the rural aesthetic the Town has consistently valued, as is required by Section 4.16A of the Zoning Ordinance.” Finding no reversible error in the HAB's orders, the New Hampshire Supreme Court affirmed judgment in favor of Applicant. View "Appeal of Town of Amherst" on Justia Law

Plaintiff TransFarmations, Inc. appealed a superior court decision to uphold the Town of Amherst Planning Board's (Town) decisions to deny TransFarmations' two successive applications for a conditional use permit (CUP). In May 2019, TransFarmations requested a “Conceptual Meeting” with the Town’s planning board (Board) concerning its proposed development of an approximately 130-acre property known as the Jacobson Farm. It stated that the “development will be designed to meet many of the desired attributes the Town . . . has articulated in [its] Master Plan and [Integrated] Innovative . . . Housing Ordinance (IIHO),” including workforce housing and over-55 housing. TransFarmations subsequently submitted a CUP application under the IIHO for a planned residential development containing 64 residential units. In its challenge to the decisions, TransFarmations argued both that the decisions failed to adequately state the ground for denial and that the Board acted unreasonably because the second CUP application was materially different from the first. The trial court concluded that the Board adequately provided the reason for its first decision on the record because “the Board members discussed, in detail, their reasons for concluding that no material differences [between the first and second applications] existed.” The court also concluded that “the Board acted reasonably and lawfully in reaching [that] decision.” Accordingly, the court affirmed both of the Board’s decisions. TransFarmations contended the trial court erred in affirming the Board’s decision not to accept the second application because TransFarmations submitted that application “at the Board’s invitation and with the information the Board requested.” The New Hampshire Supreme Court concluded TransFarmations’ second application supplying the requested information was “materially different from its predecessor, thus satisfying Fisher.” Because the trial court’s decision concluding otherwise misapplied Fisher v. Dover, it was legally erroneous. Accordingly, the Court reversed the trial court’s order as to the second CUP decision and remanded. View "TransFarmations, Inc. v. Town of Amherst" on Justia Law

Petitioner Chichester Commons, LLC appealed a Housing Appeals Board (HAB) decision affirming a decision of the planning board for respondent Town of Chichester (Town), denying petitioner’s request for a waiver of the density requirement set forth in the Town’s zoning ordinance. Petitioner argued that the HAB erred by affirming the board’s decision because, in 2015, the board granted the petitioner a density waiver for a similar elderly housing project that petitioner had proposed for the same property. The New Hampshire Supreme Court concluded the 2015 density waiver did not apply to the current version of petitioner’s proposed elderly housing project and was not binding upon the board. Accordingly, it affirmed the HAB’s decision. View "Appeal of Chichester Commons, LLC" on Justia Law

Intervenors Micheline Elias and The Fakhourys, LLC (collectively, the developer), appealed a superior court order denying their motion to dismiss a petition filed by the petitioners, George Stergiou, Jen McCarthy, Brendan Sullivan, and Kirankumar Tamminidi (the abutters), challenging a conditional site plan approval granted to the developer by the planning board (the Board) for the respondent City of Dover (the City). In January 2019, the developer applied to the Board for permission to construct a mixed use development project in Dover. After a public hearing, the Board conditionally approved the site plan (the 2019 Approval). The 2019 Approval and Chapter 153, Article II, Section 153-8 of the City’s site review regulations (the Certification Provision) required the developer to provide the Board with copies of the plan in various formats within 90 days. Due to unforeseen circumstances, the developer was unable to meet this deadline. In July 2020, the developer asked the Board to “re-approve” the 2019 application so that the project could move forward. The Board held a duly-noticed meeting, at which it conditionally re-approved the Site Review Plan subject to specified “Conditions to be Met Prior to the Signing of Plans” (the 2020 Approval). The abutters petitioned pursuant to RSA 677:15, challenging the 2020 Approval as unlawful and unreasonable. The New Hampshire Supreme Court concluded the 2019 Approval was not timely appealed and remained in force, and the 2020 Approval was void ab initio. The Court thus affirmed in part, reversed in part, and remanded with instructions to dismiss, with prejudice, the abutters’ RSA 677:15, I, appeal as untimely. View "Stergiou et al. v. City of Dover" on Justia Law

Defendant Joseph Chenard appealed a superior court ruling that he operated or maintained a junk yard in violation of RSA 236:114. Plaintiff Town of Lincoln (town) cross-appealed the trial court’s denial of its request for costs and attorney’s fees. Defendant owned the property at issue, consisting of four lots located in the town's "General Use" zoning district, which allowed junk yards only by special exception. The properties contained “large amounts of personal belongings” stored “both outdoors and in a number of sheds, which are generally in a dilapidated condition.” During its view of the properties, the court observed “old or used scrap metal including numerous machine or automotive parts, tires, wheels, cables and wiring, woodstoves, snowplows, construction debris, steel drums, plastic barrels, and other detritus.” In addition, the court observed “several automobiles that did not appear to be in working order, as well as old snowmobiles, lawnmowers, and ATVs, an old boat, and two semi-trailers.” All of the materials stored on defendant’s properties belonged to him and were stored there for his personal use. Defendant did not have a license to operate a junk yard business, nor did he have a special exception from the town. The superior court ultimately ordered defendant to end his violation of RSA 236:114 and abate the nuisance by a certain date and, if he failed to do so, authorized the town to impose a civil penalty of up to $50 per day for every day the nuisance continued and until such time as the nuisance was abated to the town’s satisfaction. The trial court denied the town’s request for costs and attorney’s fees. Finding that the trial court did not err in finding that provisions of RSA 236:111-:129 applied to defendant’s properties, and that defendant was operating or maintaining a junk yard in violation of RSA 236:114, and that the town was not entitled to attorney's fees, the New Hampshire Supreme Court affirmed. View "Town of Lincoln v. Joseph Chenard" on Justia Law

Petitioner City of Berlin (City) appealed a New Hampshire Board of Tax and Land Appeals (BTLA) order determining that the City over-assessed respondent Public Service Company of New Hampshire d/b/a Eversource Energy (PSNH), for tax year 2017. The City challenged the BTLA’s decision to apply the New Hampshire Department of Revenue Administration (DRA) 2017 median equalization ratio to determine the proportionality of the City’s assessment of PSNH’s J. Brodie Smith hydroelectric facility (Smith Hydro). It argued the 2016 median equalization ratio — the most recent DRA ratio available at the time the City prepared the 2017 tax assessment — should have applied. Because the New Hampshire Supreme Court agreed, it reversed and remanded. View "Appeal of City of Berlin" on Justia Law

Plaintiffs Merrimack Premium Outlets, LLC and Merrimack Premium Outlets Center, LLC, appealed, and defendant Town of Merrimack (Town), cross-appealed superior court orders in an action challenging the Town’s reassessment of taxable property. Merrimack Premium Outlets, LLC owned a large property in Merrimack (the Property) that it leased to Merrimack Premium Outlets Center, LLC. The latter entity operated a retail outlet shopping mall, known as the Merrimack Premium Outlets, on the Property. In 2016, the Town conducted a revaluation of all taxable property within the municipality. As a result, the Property was assessed at $86,549,400. Later that year, the Town became aware that the Property had been used in or about 2013 as collateral for a loan and had been valued for that purpose at $220,000,000. Based on this information, the Town believed that it had severely undervalued the Property. Accordingly, the Town reassessed the Property for the 2017 tax year at $154,149,500 (the 2017 reassessment). Plaintiffs then brought this action for declaratory judgment and injunctive relief, alleging there were no changes in either the Property or the market that justified the 2017 reassessment. The superior court ruled in favor of the Town. The New Hampshire Supreme Court concluded that the trial court erred in ruling that the Town had the authority to correct its undervaluation of the Property by adjusting its assessment pursuant to RSA 75:8. Given this disposition, the Court did not address the parties' remaining arguments. View "Merrimack Premium Outlets, LLC et al. v. Town of Merrimack" on Justia Law

Plaintiff Bellevue Properties, Inc. (Bellevue) appealed a superior court order dismissing its petition to quiet title and for declaratory judgment brought against the defendants, 13 Green Street Properties, LLC and 1675 W.M.H., LLC (collectively, 13 Green Street). Bellevue owned and operated the North Conway Grand Hotel, which abutted Settlers’ Green, an outlet shopping center owned by 13 Green Street. Common Court, a road that encircled the hotel and much of Settlers’ Green, provided access to the properties. Half of the road is private, and half is public. A recorded easement allowed hotel guests to travel over a private road and the private section of Common Court. 13 Green Street planned to construct a mixed-use development in Settlers’ Green, including a supermarket and parking lot, on an undeveloped parcel of land (Lot 92) and an abutting lot (Lot 85). McMillan Lane ran through Lots 92 and 85. To construct a single, continuous development across both lots, 13 Green Street sought to replace McMillan Lane with a new private road that, like McMillan Lane, would run from Barnes Road to the public section of Common Court. In November 2019, Bellevue filed this petition to “[q]uiet title to the land” underneath McMillan Lane “by declaring that [Bellevue] has an easement in the form of a private right of access over same” pursuant to RSA 231:43, III. 13 Green Street moved to dismiss, arguing that Bellevue could not assert a statutory right of access under RSA 231:43, III because its property did not directly abut McMillan Lane. The trial court agreed with 13 Green Street and dismissed Bellevue’s petition. Finding no reversible error in the trial court's judgment of dismissal, the New Hampshire Supreme Court affirmed. View "Bellevue Properties, Inc. v. 13 Green Street Properties, LLC et al." on Justia Law

Defendant Town of Windham (Town) appealed a superior court order denying its motion to dismiss the tax abatement appeal of plaintiff Shaw’s Supermarkets, Inc. (Shaw’s), for lack of standing. The Town also appealed the superior court's order granting Shaw’s requested tax abatement. The owner of the property at issue leased 1.5 acres of a 34.21-acre parcel in Windham established as Current Use. The lease, in relevant part, required Shaw’s to pay the Owner its pro rata share of the real estate taxes assessed on the entire parcel, and the Owner was required to pay the taxes to the Town. If the Owner received a tax abatement, Shaw’s was entitled to its pro rata share of the abatement. In 2017, Shaw’s was directed by the Owner to pay the property taxes directly to the Town, and it did. Shaw’s unsuccessfully applied to the Town’s selectboard for a tax abatement and subsequently appealed to the superior court. The Town moved to dismiss, arguing that Shaw’s lacked standing to request a tax abatement on property it did not own. Finding the superior court did not err in finding Shaw's had standing to seek the abatement, or err in granting the abatement, the New Hampshire Supreme Court affirmed the superior court's orders. View "Shaw's Supermarkets, Inc. v. Town of Windham" on Justia Law