New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Amendment to site plan negates vested rights

Harborside Associates, L.P. v. Portsmouth
No. 2011-236, 3/23/2012

This case is the latest installment in the continuing story of a hotel being built by Parade Residence Hotel, LLC, and objected to by the neighboring property owner, Harborside Associates, L.P. Parade obtained site plan approval from the City in 2008 for a hotel, restaurant, and retail space. Construction began in 2009. Later in 2009, the City’s zoning ordinance was amended to include different parking requirements than those in effect when Parade obtained its approval. In 2010, Parade applied for an amendment to the site plan, asking to change the retail space into a conference center. The issue in this case was whether amending the site plan made Parade subject to the newly-adopted parking regulations.

Under RSA 674:39, approved site plans and subdivisions are exempt from subsequent changes in zoning ordinances for a period of four years so long as active and substantial development or building begins on the site within 12 months in accordance with the approved plan or in accordance with the approval. (Note that in 2011 the statute was amended to extend the time period to five years with development within 24 months, but the prior version applied to this case.) Active and substantial development on the project had begun within 12 months after the original approval. Therefore, ordinarily the project would not have been subject to the new parking requirements.

However, by requesting an amendment to the approved plan, the Court found that the applicant had negated its vested rights. Although RSA 674:39 does not directly address whether a site plan remains exempt from zoning ordinance amendments if the plan is amended, the law does require that, to be vested, the project be developed “in accordance with the terms of the approval.”

The applicant argued that the change from retail space to a conference center was not significant enough to destroy vested rights under RSA 674:39. The Court disagreed, holding that an amendment can no longer be said to be “in accordance” with the terms of a previously-approved site plan if it substantially changes that plan. Whether something is a “substantial change” to a plan depends on all of the facts and circumstances in each case. In this case, however, the Court found that a conference center was an entirely new use, held that it is “qualitatively different” from retail space, and noted that the Table of Uses in the zoning ordinance itself differentiated between conference centers and retail space.

The applicant also argued it should be exempt from the parking requirements because the zoning ordinance stated that those requirements applied only to a change or expansion of “existing uses.” Since the project did not yet have a certificate of occupancy, the applicant said it had no “existing uses” to change. The Court disagreed. The ordinance defined “use” as any purpose for which a lot “may be designated, arranged, [or] intended,” and thus the use existed from the date of the original site plan approval.

Please be advised that the foregoing summaries of New Hampshire Supreme Court cases are based on 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. For your copy of the 2010 Court Update, call 800.852.3358, ext. 100.

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