New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court upholds planning board's site plan regulation waiver

Property Portfolio Group, LLC v. Derry
No. 2011-496, 6/29/2012

Property Portfolio Group, LLC (PPG) owns an apartment building that abuts a restaurant and bar housed in a converted fire station owned by MTM Realty, LLC (MTM). This is the second site plan review appeal on this property to reach the Supreme Court. See Prop. Portfolio Group v. Derry, 154 N.H. 610 (2006). In this case, MTM sought a waiver of a site plan regulation that requires a 25-foot setback for solid waste storage areas, in order to move its dumpsters closer to PPG's property. RSA 674:44, III(e) requires site plan review regulations to authorize waivers. A planning board may grant a waiver under the statute if it finds that either:

(1) Strict conformity would pose an unnecessary hardship to the applicant and waiver would not be contrary to the spirit and intent of the regulations; or

(2) Specific circumstances relative to the site plan, or conditions of the land in such site plan, indicate that the waiver will properly carry out the spirit and intent of the regulations.

RSA 674:44, III(e). "The basis for any waiver granted by the planning board shall be recorded in the minutes of the board."

The planning board received and discussed evidence concerning the need to move the dumpsters close to the PPG lot line to allow improved access for delivery, emergency and refuse collection vehicles, and improved screening of the dumpsters. The board voted to waive the setback with the condition that the dumpsters be enclosed by a fence and appropriate screening, but the board did not specifically state the basis for its grant of the waiver in the minutes. PPG appealed to the superior court under RSA 677:15, claiming that the waiver was unlawful because the board had not made specific findings on the record. The trial court upheld the planning board decision.

On appeal to the Supreme Court, the Court affirmed the trial court and planning board decisions:

"Nothing in RSA 674:44, III(e) obligated the board to make specific finding of fact. Rather, it simply required that the 'basis' of the board's decision 'be recorded in the minutes.' … We construe RSA 674:44, III(e), therefore, to require only that the underlying rationale of the board's decisions to grant a waiver be adequately reflected in its minutes."

The Court found that there was sufficient evidence to support the board's decision, and the minutes adequately recorded the basis of the decision.

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