New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Board’s Preference Not a Substitute for ‘Undue Hardship or Injustice’

Philip Auger & a. v. Town of Strafford & a.
No. 2006-646, 8/23/2007

The plaintiffs, abutters and neighbors of a proposed conservation development subdivision (CDS), appealed the planning board’s approval of the proposed CDS and yield plan. The proposed CDS plan contains 17 building lots serviced by a cul-de-sac, and 31.8 acres of open space burdened by a permanent conservation easement. The yield plan contains 18 lots serviced by a loop road and shows less than 20,000 square feet of wetlands impact.

The zoning ordinance provides a CDS as “a method of subdivision design that provides for the protection of natural, environmental, and historic land features by permitting variation in lot sizes and housing placement.” It allows a residential subdivision where dwellings are allowed on reduced lot sizes and when a portion of the tract is set aside and will never be built upon. A CDS must meet certain requirements specific to such developments as well as all other zoning and subdivision requirements. In order to determine the number of houses that may be built in a CDS, the planning board may require a “yield plan” which shows the number of houses that could be built in a conventional development that meets all applicable state and local requirements.

The CDS as approved by the planning board included a waiver of a subdivision regulation that states that no more than ten lots may be serviced by a dead-end street. The board’s subdivision regulations allow for the granting of waiver when “strict conformity to these regulations would cause undue hardship or injustice to the owner of the land.” The plaintiffs argued that there was no evidence that the loop road would cause the owners “undue hardship or injustice” and that without such a finding, the board could not grant the waiver. The Court agreed, finding that the board had no evidence before it that the loop road configuration would cause any hardship to the property owner, much less “undue hardship.” Instead, the record revealed the sole reason that the board decided to waive the 10-lot requirement was because it preferred the cul-de-sac design, not because the loop road design would cause “undue hardship or injustice” to the property owner. Absent evidence of “undue hardship or injustice”, the board could not waive the subdivision regulation provision. Thus, the Court reversed the trial court’s decision to uphold the board’s approval of the proposed CDS.

The Court, in the interest of judicial economy, addressed other issues raised by the plaintiffs since they would likely arise on remand. Of particular interest to all land use boards was the Court’s discussion of the claim by the plaintiffs that their procedural due process rights were violated because a board member that voted on the CDS missed two of the multiple hearings on the proposal. In rejecting this argument, the Court noted that the board member in question missed only two hearings over several years and voted after having visited the site and reviewing the applicable notes. The Court explained that prior decisions relied upon by the plaintiffs that held that all panel members must be present to hear all testimony were cases that turned on issues of credibility. When credibility is a factor to be considered in the decision-making process, all members who will vote on the case must be present to hear the testimony in order to effectively assess the issue of credibility. However, since the planning board’s decision in approving the CDS did not turn upon credibility, the requirement that all board members hear all testimony did not apply in this case.

Land use boards should note that the Court found it compelling that the board member missed only two of multiple hearings on the proposal, visited the site and reviewed all notes on the case before voting. When a board member has not been to all hearings on a proposal, it is important to make sure that he or she is sufficiently apprised of all aspects of the case if he or she intends to vote. If this is not possible, a discussion of whether it is appropriate for the member to participate in the vote should be held.

Next the Court turned to issues relating to the board’s approval of the yield plan. The subdivision regulations required the plan to show all wetlands and proposed wetlands disturbance in sufficient detail so that the board could assess the impact, and to show that the proposed wetlands disturbance would be minimized in accordance with DES requirements. The yield plan as approved by the board depicted the location of the wetlands but it did not contain detailed information about the proposed disturbances and impact on those wetlands as required by the subdivision regulations. The Court held that such a finding by the trial court required it to reverse this aspect of the board’s decision, and thus vacated the trial court’s decision to remand this issue to the board.

Finally, the Court addressed the plaintiff’s argument that the board erred when it approved the yield plan with a right of way that was less than 50 feet, as required by the subdivision regulations. The board approved the yield plan with a 45-foot right of way on the condition that if a court, in related litigation ruled that the right of way could not be used for the project, the yield plan would be nullified. Later, when approving the CDS, the board required that the road with the right of way be upgraded to provide access to the CDS. All parties agreed that the street with the right of way exists only as a paper street. Once again, the Court held that to the extent the board waived the 50-foot requirement contained within the subdivision regulations, it did so in error absent evidence of undue hardship or injustice.

This case illustrates the importance of observing the requirements of subdivisions regulations with respect to granting waivers. In order to grant a waiver, the board must find that the conditions necessary for granting the waiver, as described in the regulations, exist—board preference in not enough.

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