New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Conservation Easement Land Not Available for Yield Plan Density Requirement

Robert E. Naser d/b/a Ren Realty v. Town of Deering Zoning Board of Adjustment
No. 2007-620, 5/22/2008

In an application for a cluster-style development on a 77-acre parcel, the plaintiff included for density purposes 50 acres that are subject to a conservation easement to support 14 homes on the 27 buildable acres. The tract had been approved for 25 duplex buildings in 1989, when the previous owner granted the town an unconditional 50-acre conservation easement but then never developed the land. The town’s zoning ordinance permits an applicant to increase density by decreasing lot sizes, provided a requisite amount of open space is preserved on the property. To determine the appropriate density, an applicant is required to submit a yield plan that shows that the net density will be no greater than permitted within the zoning district for a conventional subdivision or development. The plaintiff’s application was rejected because the planning board interpreted the zoning ordinance as disallowing the use of the 50 acres subject to the conservation easement to satisfy the yield plan density requirements.

The plaintiff appealed the planning board’s decision to the zoning board of adjustment (ZBA) and, in the alternative, requested a variance from the zoning ordinance to allow the use of the conservation easement land in the yield plan. The ZBA denied the appeal, agreeing with the planning board’s interpretation of the ordinance, and denied the request for a variance. The trial court upheld both the planning board and ZBA decisions. The plaintiff appealed, arguing to the Supreme Court that (1) the yield plan did satisfy the requirements of the zoning ordinance and, alternatively, (2) the evidence required the granting of a variance from the yield plan criteria.

Turning first to the yield plan requirements of the zoning ordinance, the Court found compelling the requirement that the yield plan must show a feasible conventional subdivision, one that must be realistic and not show potential house sites or streets in areas that would not ordinarily be legally permitted in a conventional layout. Pointing to the conservation easement provisions that prohibit subdivision or the construction of any dwellings, the Court concluded that including the conservation easement land would not meet zoning requirements for depicting a “feasible” and “realistic” subdivision, because the land could not be subdivided and no buildings could be placed on it.

The Court reversed the trial court’s ruling that the plaintiff had failed to satisfy two of the criteria for a variance: (1) the variance will not be contrary to the public interest; and (2) the variance is consistent with the spirit of the ordinance. (The trial court focused only upon two of the four criteria identified by the ZBA as not being satisfied by the plaintiff. Thus, the Court could review only those two criteria used to deny the variance: the public interest and the spirit of the ordinance.) In reviewing these two criteria the Court pointed to the zoning ordinance’s objectives of conserving and preserving open space, and concluded that granting a variance to allow the plaintiff to use 50 acres already permanently preserved as open space to satisfy the open space requirements for his subdivision would not “unduly, and in a marked degree conflict with the ordinance,” the test set forth in Malachy Glen Assocs. v. Chichester, 155 N.H. 102 (2007). On remand, the trial court must consider the other two criteria cited by the ZBA to deny the variance: unnecessary hardship and substantial justice criteria. If the trial court finds that the ZBA’s denial of one or both of these criteria was proper, the variance denial will be upheld, despite the finding of the Court that the variance was not in conflict with the public interest and spirit of the ordinance.

Municipalities should be aware that land subject to a conservation easement may, nevertheless, be used for development indirectly as cluster subdivision open space. If this is viewed as undesirable, it should be addressed by specific language in the easement.

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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