Justia Zoning, Planning & Land Use Opinion Summaries

Defendant Town of Madison Planning Board appealed and Plaintiffs Thomas and Margaret Ettinger cross-appealed a superior court's decision which held that a private session of the Board violated the state's Right-to-Know Law (RTK) and denied Plaintiffs' request for attorney fees. In June 2009, the Pomeroy Limited Partnership (Pomeroy) received conditional approval from the Board to convert the buildings on its property to a condominium ownership form and to convey part of the property to the Nature Conservancy. In January 2010, Plaintiffs, whose property abuts the Pomeroy property, requested a public hearing to allow them to challenge the approval of the condominium plan. The Board scheduled a public hearing for March 3, 2010, to consider whether to grant final approval of the Pomeroy application. Plaintiffs' attorney appeared at that hearing. At the scheduled time of the hearing, the Board went into a private session for thirty minutes in which they read emails from the Board's attorney, a memorandum that summarized legal advice and letters from Plaintiffs' attorney. The Board then reopened the hearing and then after hearing Plaintiffs' attorney on the matter, granted final approval of the Pomeroy application. Plaintiffs sued alleging the Board violated the RTK law. The superior court agreed that the private session violated the RTK law, but refused to invalidate the Board's approval of the Pomeroy application. Upon review, the Supreme Court found that while the Board's written communications from its counsel may be protected from disclosure under the RTK law, the meeting itself need not have been closed to the public. Further, the Court affirmed the trial court's denial of Plaintiffs' attorney fees: "[w]e cannot find that … the Board should have known that the nonpublic session violated the Right-to-Know Law" to therefore entitle them to fees. View "Ettinger v. Town of Madison Planning Board " on Justia Law

Petitioners Thomas Morrissey, Dorothy Sears, Reginald Rogers, John Quimby, Michael O’Donnell, Jonathan Chamberlain, Patricia Reynolds, Richard and Barbara Sanders, Margaret Russell, and Robert and Judith Dupuis, appealed a superior court order that granted motions to dismiss filed by Respondents New Hampshire Department of Environmental Services and New Hampshire Fish and Game Department (collectively referred to as the State), and Town of Lyme (Town). Post Pond is in Lyme, held in trust by the State for public use. Petitioners own properties with frontage on Post Pond and the west side of the Clay Brook wetlands. The Town owns property on the east side of the Clay Brook wetlands as well as a contiguous parcel with frontage on Post Pond, which consists of a recreation area. In May 2009, Petitioners filed a petition in equity and writ of mandamus alleging that the Town's removal of beaver dams in the Pond that controlled the natural mean high water mark adversely affected their properties and disrupted the entire Clay Brook wetlands ecosystem. Upon review, the Supreme Court found that Petitioners' writ allegations were insufficient to state a claim for taking or nuisance against the Town, and that the trial court did not err in dismissing their claims. Further, the Court concluded that Petitioners failed to plead a claim entitling them to declaratory relief. View "Morrissey v. Town of Lyme" on Justia Law

Petitioner Town of Newington appealed a superior court order that granted summary judgment to the State through the the Pease Development Authority (PDA) and the New Hampshire Department of Environmental Services (DES). Before land from the former Pease Air Force Base was deeded to the PDA, the United States Air Force engaged in a series of environmental impact analyses required by federal law. Following several iterations of environmental documents and deed restrictions, PDA accepted title to the Pease AFB land in three title transfers between 1999 and 2005. Shortly thereafter, the Town began the process of designating prime wetlands within its borders pursuant to state law. Six wetlands were located within the former Pease base. DES initially "approved" the Town's request, but later clarified that it "did not purport to 'approve' the legality of the Town's designation of prime wetlands located within PDA boundaries, nor would the agency have statutory authority to do so." Several months later, as part of a proposed construction project on PDA land to expand an existing office building, an alteration of terrain permit application was filed with DES. The Town rejected, asserting that it involved fill within 100 feet of wetlands that the Town had designated as "prime" and, therefore, required a wetlands permit. DES disagreed. After the Wetlands Council dismissed its appeal for lack of jurisdiction, the Town filed a petition for declaratory and injunctive relief in superior court. The trial court concluded that PDA was not required to comply with the Town’s prime wetlands designations and, therefore, granted PDA and DES’s motion for summary judgment. Upon careful consideration of the superior court records and the deeds of the wetlands in question, the Supreme Court concluded that the DES' reservation when first 'approving' the six wetlands within the PDA did not confer the Town with standing to challenge any subsequent development. As such, the Court affirmed the superior court's grant of summary judgment. View "Town of Newington v. New Hampshire" on Justia Law

Petitioners Curtis and Deborah Avery appealed a superior court order that dismissed their petition for a declaratory judgment for pertaining to a lot size waiver that was granted to Respondent Concord School District (District) by Respondent New Hampshire Department of Education (DOE). In 2009, the School Board for the District voted to demolish and rebuild Kimball School. The lot size for the proposed new building did not meet the minimum lot size requirements in the state Administrative Rules. As a result, the District applied for a waiver of the lot size requirements with the DOE. Petitioners owned rental property adjacent to the school lot. In 2010, they sought a declaratory judgment that the waiver was "invalid and void." Upon review, the Supreme Court found that the trial court's ruling that Petitioners lacked standing to challenge the waiver was correct. The Court affirmed the trial court's decision to dismiss Petitioner's case.

Petitioner Brandt Development Company of New Hampshire, LLC (Brandt) appealed a Superior Court order that upheld a decision of Respondent City of Somersworth’s (City) zoning board of adjustment (ZBA). The ZBA denied its application for a variance. Brandt owned a house and attached barn in the residential multi-family district of the City. In November 1994, Brandt applied for a variance from size and frontage requirements to convert the property, then being used as a duplex, into four dwelling units. The ZBA denied the application after finding that the property failed to satisfy the five criteria for a variance. From 1995 to 1997, Brandt added four bedrooms to the upstairs unit after receiving permits to do so. In December 2009, Brandt again sought to convert the property into a four-unit dwelling, and again applied to the ZBA for a variance from the City’s area, frontage, and setback requirements. The ZBA declined to consider the merits of the variance application on the basis that “circumstances [had] not changed sufficiently to warrant acceptance of the application.” The superior court affirmed the ZBA’s decision in August 2010. Upon review, the Supreme Court found that the legal criteria the ZBA used in making its determination were not "discreet and unrelated criteria, but interrelated concepts that aim to ensure a proper balance between the legitimate aims of municipal planning and the hardship that may sometimes result from a literal enforcement of zoning ordinances." As such, the Court found that the ZBA's denial of Brandt's variance application was not reasonable in light of state law, and it reversed the ZBA's and Superior Court's decisions, and remanded the case for further proceedings.

Petitioner Limited Editions Properties, Inc., appealed a superior court order upholding a decision to deny Petitioner's subdivision application by the planning board of Respondent Town of Hebron (Town). Petitioner owned 112.5 acres of property in Hebron on the northwest end of Newfound Lake with frontage on West Shore Road. A portion of the lot lay within the Hebron lake district, and the remainder lay within the rural district. In an earlier decision, the Board determined that because Petitioner had materially revised its plan for the property, it was required to submit a new application to develop it. Petitioner sued, and the Board was reversed. When the Board resumed consideration of the application, Petitioner requested that it grant preliminary conditional approval of the plan's overall concept before Petitioner sought the required state and federal permits. Petitioner acknowledged that the plan would not meet then-current state regulations; it intended to revise the plan to obtain the necessary permits after the Board granted preliminary approval. Once it obtained the permits, Petitioner intended to return to the Board for consideration of any necessary changes to the plan. However, the Board determined that it would not approve the subdivision application in stages; rather, it would either conditionally approve the application or deny it. After holding several hearings on the application, a motion to deny the application was introduced and seconded, and after further discussion, three of the five members of the Board voted to deny the application. Petitioner subsequently appealed to the superior court, which upheld the Board's decision. Upon review, the Supreme Court held that Petitioner failed to establish that the trial court erred in affirming the Board's decision. Accordingly, the Court affirmed the trial court's decision.

Respondent Parade Residence Hotel, LLC (Parade) appealed and Petitioner Harborside Associates, L.P. (Harborside) cross-appealed a superior court decision that partially affirmed and partially reversed the decision of the Portsmouth Zoning Board of Adjustment (ZBA) to grant Parade variances to install two parapet and two marquee signs on its hotel and conference center site. Upon review, the Supreme Court found evidence in the record to support the ZBA’s factual findings: "[b]ecause the ZBA used the correct test to determine whether the public interest and spirit of the ordinance factors were met and because there is evidence to support the ZBA’s findings on these factors, to the extent that the trial court ruled that the ZBA acted unlawfully when it found that the factors were met, the trial court erred." Further, the Court found there was evidence in the record supporting the ZBA’s finding that the signs would not "negatively impact surrounding property values ... the ZBA was also entitled to rely upon its own knowledge, experience and observations." The Court partially affirmed and partially reversed the superior court's decision, and remanded the case back for further proceedings.

Petitioners Peter Gordon and the Peter Gordon Revocable Trust of 1999 own six oceanfront properties adjacent to and at the end of a road in the Town of Rye. Petitioners unsuccessfully appealed an order from the Town Board of Selectmen that a portion of the road had become public by prescription. On appeal to the Supreme Court, Petitioners argued that the Board’s conclusion was wrong. Central to the Board's conclusion was Petitioner's 1997 request to remove snow from the road. The Board reasoned that if the road was private, the Town would have had no duty to remove the snow. Upon consideration of matter, the Supreme Court found the evidence presented at the Board hearing was insufficient to declare the road a public road by prescription. The Court vacated the Board's decision, and remanded the case to the superior court for further proceedings.

Bower Road in Henniker was originally designated a "public highway" in 1797. In 1895, the Town voted to discontinue the road. In 2002, Timothy Hanson purchased a parcel of land in Henniker which could only be accessed by the road. The neighbors disputed Mr. Hanson's use of the road, and he successfully brought suit to establish a right-of-way in the road. In 2009, Plaintiff Russell Forest Management acquired the Hanson property. Plaintiff applied to the Town Board of Selectmen for a building permit to construct a single-family home there. Following a hearing, the Board rejected Plaintiff's application, holding that the discontinued road could not be used as planned. The Board found that Plaintiff's property did not have the required frontage, rather, a simple right-of-way. Plaintiff unsuccessfully appealed to the Zoning Board of Appeals (ZBA) and the superior court. On appeal to the Supreme Court, Plaintiff argued that over time, the discontinued "public highway" became a "private road" due to the nature of Mr. Hanson's original use to access his property. As a private road, Plaintiff argued the Board erred in finding that it did not meet the statutory requirements for frontage to the proposed single-family house. The Supreme Court found that the "road" indeed did not meet the Town's requirements of a private road nor as frontage to the property. Furthermore, the Court found that the "road" did not meet the criteria for being a qualified easement. Accordingly, the Court affirmed the lower court's and the ZBA's decisions to deny Plaintiff its building permit.