New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Developer not entitled to preliminary subdivision approval before pursuing state and federal permits

Limited Editions Properties, Inc. v. Hebron
No. 2010-586, 9/22/2011

The petitioner applied to the Hebron Planning Board (Board) for approval to develop a 20-lot subdivision on a lot which was large, but contained steep slopes. The proposed access road would be 2,600 feet in length, with a 10 percent grade for about 1,600 to 1,700 feet, and would have a "switch back" with a 150-foot curve radius. Construction of the road would include creating three substantial retaining walls, topped with a six-foot metal fence. The petitioner requested that the Board grant preliminary conditional approval of the plan's "overall concept" before the petitioner sought required state and federal permits. The petitioner particularly desired preliminary approval of the proposed road and lot layout. The petitioner acknowledged that the plan would not meet then-current state regulations; it intended to revise the plan to obtain the necessary permits after the Board granted preliminary approval. Once it obtained the permits, the petitioner intended to return to the Board for consideration of any necessary changes to the plan. However, the Board determined that it would not approve the subdivision application in stages; rather, it would either conditionally approve the application or deny it. After several hearings, the Board voted to deny the requested preliminary approval. Upon appeal, the Superior Court affirmed the Board decision, as did the Supreme Court.

This is a case about planning board procedure, and the Court reaffirmed several basic principles which are important to all local boards. First and foremost, the burden is placed upon the applicant to provide sufficient information for the board to consider the requested relief under the terms of the local ordinance. As the Court stated,

[I]t was the responsibility of the petitioner to present the Board with evidence sufficient for it to make a decision.… As the trial court determined, "The record shows that the Board did not inhibit the petitioner from presenting evidence to support the application," and the petitioner's decision not to first invest in the permitting process, while perhaps understandable, "is not an error attributable to the Board."

Second, if a planning board should deny an application, it is required by statute to state the reasons for the denial in writing. This case clarifies that a written notice of decision, coupled with minutes that discuss the reasoning behind the decision in some detail, satisfy that requirement. "[T]his statutory requirement anticipates an express written record that sufficiently apprises an applicant of the reasons for disapproval and provides an adequate record of the board's reasoning for review on appeal.… A written denial letter combined with the minutes of a planning board meeting can satisfy the statutory requirement."

Finally, the applicant argued that as a result of the holding in Derry Senior Development, LLC v. Derry, 157 N.H. 441 (2008), there was a presumption that any applicant meeting the requirements of applicable state and federal regulations had adequately protected the public interest, thereby shifting the burden to the planning board to identify specific deficiencies to support a denial of the application. The Court clarified the Derry decision, noting that such a presumption was created, if at all, by the underlying local ordinance, and not by their prior holding. To the extent that the language of the local ordinance did not create such a presumption, compliance with applicable state and federal regulations did not serve to demonstrate compliance with local requirements.

Please be advised that the foregoing case summaries are based upon Supreme Court slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court's opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC's annual conference. The 2011 Court Update will be available in mid-November.

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