New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Planning Board’s Expedited Site Review Process Upheld

Property Portfolio Group, LLC v. Town of Derry
No. 2005-867, 12/21/2006

The Derry Planning Board approved a site plan determination application submitted by Hall Business Restorations to convert a former fire station into a restaurant. The application was approved with the condition that Hall submit a landscaping plan. Five months later, Property Portfolio Group (PPG), an abutter to the Hall property, petitioned the superior court for an injunction and a declaratory judgment against the town and Hall. The superior court ruled that it lacked jurisdiction because RSA 677:15 requires persons aggrieved by a planning board decision to appeal to the court within 30 days.

PPG appealed to the New Hampshire Supreme Court, arguing that the 30-day appeal period didn’t apply because there was no application before the planning board under site plan determination and, therefore, no decision. The Supreme Court disagreed, pointing out that RSA 676:4, III specifically authorizes planning boards to provide for expedited review and approval for proposals involving minor subdivisions (not more than three lots) or that do not create lots.

Hall’s application was submitted on the town’s application form under the planning board’s site plan regulations that permit the granting of “site plan determination.” Under the town’s regulations, if site plan determination is denied, the applicant may submit an application under the more rigorous “site plan review,” which provides a three-part process beginning with informal conceptual consultation, design review (optional but strongly recommended) and final review with approval or denial. The Court said, “By approving the application for site plan determination and, therefore, waiving site plan review, the planning board followed the expedited procedure for site plan determination set forth in the applicable regulations.”

PPG also argued that even if there was an application, the planning board decision wasn’t final because Hall had not fulfilled the condition requiring a landscaping plan, citing previous decisions of the Court that planning board approval is not final until conditions precedent are fulfilled. The Court ruled, however, that the landscaping plan condition was not a condition precedent to final approval, but a condition subsequent. It explained the difference: “[C]onditions precedent contemplate additional action on the part of the town and, thus, cannot constitute final approval. Conditions subsequent, on the other hand, do not delay approval.” The Court said the landscaping condition was not required to be fulfilled before renovations of the fire station began; therefore, it was a condition subsequent, not a condition precedent. This meant that the planning board decision was final and appealable under the 30-day period allowed by RSA 677:15.

PPG argued that its petition for declaratory judgment should have been allowed by the trial court even if it was untimely. The Court acknowledged that it has permitted declaratory judgment actions to challenge the validity of zoning regulations even if filed beyond the 30-day appeal period because such challenges involve questions of law rather than a question of the exercise of administrative discretion, and in such cases the exhaustion of administrative remedies is not required. “[I]t is proper to permit the use of the declaratory judgment procedure to challenge the validity of a zoning ordinance, even if the challenge is outside the applicable time period, where … the question is one peculiarly suited to judicial rather than administrative treatment and no other adequate remedy is available to the plaintiff.” However, the Court said it has not extended this exception to appeals of planning board decisions. Without deciding whether exceptions to the 30-day appeal period should be made for appeals of planning board decisions, the Court said that PPG’s challenge “did not raise a question of law, but rather contested the planning board’s exercise of administrative discretion. Therefore, the [30]-day appeal period applied.” The Court ruled that the lower court had not erred in granting the town’s motion to dismiss PPG’s petition for lack of jurisdiction.

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

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