AWL Power, Inc. v. City of Rochester
No. 2001-533, 12/9/2002
The Rochester Planning Board revoked the 1987 project approval at that time. Rochester had since enacted a zoning ordinance in 1988 that rendered much of the proposed construction non-conforming. The planning board found that the developer’s rights had not permanently vested where the developer had completed 43 percent of the public improvements and 10 percent of the total private and public improvements. The planning board also found that continued construction on the project was barred by the 1988 ordinance.
At issue in this case is the common law permanent vesting right that developers may obtain by completing “substantial construction” as established in Piper v. Meredith, 110 N.H. 291 (1970) and further interpreted and defined by the Court in later cases. In concluding that the developer had not completed substantial construction, the lower court had measured the amount spent to date against the cost of the entire plan. The cost of the entire development was about $6 million.
“[An] owner, who, relying in good faith on the absence of any regulation which would prohibit his proposed project, has made substantial construction on the property or has incurred substantial liabilities relating directly thereto, or both, acquires a vested right to complete his project in spite of the subsequent adoption of an ordinance prohibiting the same.” Piper, 110 N.H. at 299.
The Supreme Court disagreed with the lower court, stating that it was improper to look only at the comparison of dollars spent to overall cost. The Court said the main rationale for the common law vesting right is the developer’s good faith reliance on the absence of applicable zoning regulations and that the completion of a certain percentage of a project cannot be the exclusive method by which developers’ rights vest. Questions of permanent vesting must be reviewed on a case-by-case basis looking at the facts and circumstances of each scenario.
The Court’s consideration of the following factors should provide some direction to municipalities in determining when rights have vested:
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.< Back to Court Update Home