Brady Sullivan was the successor in interest of a two-phase planned residential subdivision development first approved in 2005. By 2010, when Brady Sullivan purchased the property, Phase I of the project was partially complete. In 2014 the Planning Board amended deadlines for active and substantial development and substantial completion of improvements as provided in RSA 674:39, III. These deadlines were again modified by the Planning Board in 2014, 2016 and 2018. The last extension required active and substantial development by December 10, 2020, and substantial completion of improvements by December 10, 2023.
On March 23, 2020, the City sent an e-mail reminding the Brady Sullivan that the active and substantial development deadline of December 10, 2020 and provided a list of the conditions of approval that still had to be satisfied prior to commencing any site work for Phase II. Despite this warning, Brady Sullivan did not achieve active and substantial development by December 10, 2020, and the City declared the project in default on January 6, 2021. Brady Sullivan sought a further extension that was denied by the Planning Board on March 8, 2021.
On appeal to the Housing Appeals Board (HAB) the issue was whether the Planning Board denial of the Brady Sullivan’s request to extend the time for substantial completion of Phase II was illegal or unreasonable. Focusing on whether, as stated in RSA 674:39, IV, there was “good cause” to grant further time extensions the HAB ruled that the prior granting of an extension request should not be a factor in determining whether to grant the current extension request. The HAB also concluded that changes to city regulations since 2005 that would necessitate significant revision of the Phase II plan was a factor that merits consideration. In addition, a relevant factor in judging “good cause” would include what limitations were faced by Brady Sullivan with carrying out development during the COVID-19 pandemic. Moreover, the significant time and energy invested by Brady Sullivan to clean up the completion of work left undone by the original developer also merited consideration as a factor on the question of good cause.
Ultimately the HAB remanded the decision on good cause to grant an extension under RSA 674:39, IV back to the Planning Board and in so doing the HAB ordered the Board to reconsider its decision, requiring that the review focus on “good cause” in the following manner: a) the fact that the Applicant has previously requested and received plan extensions under RSA 674:39 shall not be factored into any decision, b) prior facts which remain relevant to the current request may be considered; c) Other relevant factors for consideration can include, but are not limited to:
1) The Applicant’s ability to have commenced substantial completion of improvements and active and substantial development of the project in light of existing business conditions including the impact of the COVID-19 pandemic; and,
2) The current overall municipal impact, if any, resulting from the Applicant’s failure to commence construction of Phase II during the previous extension.