New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Compliance with Planning Board Procedures Is Not Strictly Scrutinized

Property Portfolio Group, LLC v. Town of Derry
No. 2005-867, 1/24/2007

This opinion was originally discussed in last month’s Court Update and has since been updated by a modified opinion issued by the Court in January 2007. The case involved an appeal by an abutter of the planning board’s approval of a site plan. The abutter’s case had been dismissed because the appeal was not filed within the statutory appeal period. Disagreeing with all of the abutter’s arguments, the Court found that the case had been dismissed properly. The modified opinion does not disturb that conclusion but does add some language of interest to planning boards.

One of the abutter’s arguments was that the time limit for filing an appeal from a planning board “decision” did not apply in this case because the board had not issued a decision. The abutter argued instead that there was no application before the board and therefore the board could not have issued a decision. The Court found that the board had followed the procedures for an expedited site plan review and that there was, in fact, an application that was filed and acted upon. The modified opinion clarifies that, although “the official [application] form was submitted after the fact, the record showed that the proposal submitted before the hearing, which was sufficiently publicized to abutters and the public, functioned as an application. The proposal came in response to the town’s request for proposals and met the requirements of that request.” The Court made a point to note that RSA 676:4, VI “commands” that the planning board’s procedures not be subjected to strict scrutiny for technical compliance. Procedural defects by the planning board “shall result in the reversal … only when such defects create serious impairment of opportunity for notice and participation.”

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