New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Conditional Approval of Site Plan Not Final Approval

Simpson Development Corporation v. City of Lebanon
No. 2005-207, 5/17/2006

The purpose of allowing conditional approvals by planning boards is to avoid requiring that any impediment to full approval result in formal disapproval and the wasteful necessity of starting all over. Thus, according to the Court, a conditional approval under RSA 676:4, I(i) is only an “interim step in the process of the board’s consideration” and is not a final approval. For a valid final approval under the statute, there must be no unfulfilled conditions precedent.

The planning board granted the developer approval for a 57-lot cluster subdivision containing 53 single-family homes. The approval was conditioned upon, among other things, the creation of an open space area that included all land not encompassed by the curtilage of the subdivided lots within the developed portion of the property. On January 13, 2003 the developer sought to amend its cluster subdivision plan to add nine lots. On June 9, 2003, the board approved the amendment with conditions and on July 14, 2003 amended its June 9, 2003 approval to add the following language: “When the Planning Office is notified that Conditions 3, 9 &10 above have occurred, this approval shall become FINAL APPROVAL and the Notice of Action and Subdivision Agreement shall be prepared and signed by the Chairperson as provided in Sections 6.13, 6.25 and 7.4(f) of the Subdivision Regulations.”

Subsequent to the board’s conditional approval, their attorney informed them that they did not have the authority to permit the amendment because the additional nine lots would be sited in the designated open space area. As a result, on October 14, 2003, the board voted to void its conditional approval of the amendment.

The developer argued, among other things, that the board’s June 9, 2003 decision was a final approval that barred the board’s October 14, 2003 action. The Court did not agree, finding that the conditional approval never became final because not all of the conditions precedent were satisfied before the conditional approval was revoked.

Specifically, condition 10 required the developer to “submit for review and approval of the Planning Office any amended declarations of covenants and restrictions that will govern the homeowner’s association.” The city’s zoning ordinance required review by the city attorney who determined that the board did not have the legal authority to approve the plan amendment because to do so would violate the zoning provision that prohibited development in the designated open space area of the cluster subdivision. Further, RSA 674:21-a provides that any open space or other development restriction that is part of a cluster development submitted with or contained in an application which is subsequently approved shall be deemed a condition of the approval. As a result, the Court found that the developer did not receive the approval required by condition 10 of the June 9, 2003 approval so the approval never became final. Because the June 9, 2003 conditional approval was not final, the board was not barred from reviewing and voting to void the approval.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

< Back to Court Update Home