New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court Reaffirms Municipalities’ Duty to Assist Applicants

The Richmond Company, Inc. v. City of Concord
No. 2002-314, 4/11/2003

The Concord Planning Board denied Richmond’s site plan approval to build a retail shopping center on 34 acres off South Main Street in the redevelopment district. Richmond appealed to the superior court, which said the planning board’s decision was not supported by the evidence and that the board failed to share its concerns about the project with Richmond, thereby depriving the developer of an opportunity to remedy problems with the plan. The city appealed to the Supreme Court, arguing that it had sufficient evidence to support its decision and that it engaged in good faith discussions with Richmond in an effort to assist it in meeting site plan approval requirements.

The Court noted that in previous decisions, it has held that under the state constitution municipalities have “an obligation ‘to provide assistance to all their citizens’ seeking approval under zoning ordinances,” and that “it is their function to provide assistance to their citizens [which] includes informing applicants not only whether their applications are substantively acceptable but also whether they are technically in order.”

In this case, the Court disagreed with Richmond’s assertions that the planning board failed to assist it because the board didn’t comment on the application or answer inquiries raised during public hearings. The Court said that Richmond acknowledged that the board and city staff had given input prior to and throughout the application process. “That the board did not comment on the suitability of the project in response to Richmond’s inquiries prior to its deliberative session and vote is neither inappropriate nor unusual since the purpose of the board’s deliberative session is to decide the issues,” the Court wrote. It held that the planning board had not failed to fulfill its “constitutional obligation to provide assistance to its citizens.”

As to Richmond’s claim that there was insufficient evidence to support the board’s denial, the Court also disagreed. Noting that if any of the reasons offered by the board to reject a site plan application supports its decision the applicant’s appeal must fail, the Court said public hearing testimony and documents submitted in the case supported the board’s finding that the proposal didn’t meet the design criteria of the ordinance. The board had found the proposal to be suitable for a “suburban strip retail shopping center,” but incompatible with the historic character, urban design and land use pattern of the state capital.

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