New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Project with DES Sewage Disposal Permit May Not Be Denied by Planning Board Without More Stringent Local Regulations or Solid Evidence of Health or Safety Risk

Derry Senior Development, LLC v. Town of Derry
No. 2007-569, 7/2/2008

The applicant proposed an independent adult community development in Derry on 60 acres of land. The applicant obtained approval of the proposed sewage disposal system from the New Hampshire Department of Environmental Services (DES), which had reviewed the project in accordance with applicable state statute and administrative rules governing the design of such systems. The planning board’s site plan regulations referred to the DES on-site sewage disposal standards and did not impose more stringent local standards. Despite DES approval, the Department of Public Works (DPW) in Derry opposed approval of the project, citing concerns with design of the sewage system, based on the failures of other on-site sewage systems in previous projects in town.

The planning board denied approval of the site plan, because the applicant had refused to alter the plans as requested by the local DPW. The Superior Court affirmed, finding that the concerns of the local DPW were valid, and that the proposal did not adequately protect the health and safety of abutting property residents.

On appeal, the Supreme Court reversed and remanded the case to the trial court, finding that the DES approval creates a presumption that the project adequately protects the public interest in assuring proper sewage disposal. The Town’s approved site review regulations did not impose additional or more rigorous standards, although they could have done so validly. The record showed no additional evidence that the proposal would have a negative effect upon the health and safety of town residents. The Court found that the concerns of the Department of Public Works were vague and based upon the mere personal opinion of a member of the planning board, and that the record lacked evidence of an identifiable danger to abutting properties.

Thus, planning boards must take care not to impose conditions during site review proceedings which are more stringent than those contained in the adopted regulations in the absence of clear evidence of a risk of harm to others. If there are special conditions in the municipality which justify standards that are higher than the minimums sets in State administrative rules, the planning board must adopt those standards in site plan review regulations in accordance with statutory procedure in advance of an application where they may need to be used.

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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