The Town of Windham and PPI Enterprises have been involved in ongoing litigation regarding PPI’s proposed site plan application to construct a self-storage facility. In August of 2021, after a prior appeal was remanded to the Windham Planning Board, the Board denied site plan approval due in part to safety concerns regarding the ten-percent grade of an access road. On appeal to the Superior Court, PPI argued the Board’s consecutive denials of the site plan application rendered the property “essentially undevelopable, therefore resulting in an inverse condemnation without just compensation.” In upholding the Board’s August 2021 decision, the trial court ruled the Board’s safety concerns arising from the grade of the proposed access road were sufficient to support denial of the application. The trial court also rejected PPI’s claim for inverse condemnation because there remained plausible ways to develop the property if a second means of egress was sought or by resubmission of an application with an 8% road grade as required by the Chief of Police.
The Supreme Court concluded that there was an adequate reason for the Planning Board to reject the site plan due to the safety concerns arising from the proposed 10% grade of the access road to the self-storage facility. The Court then addressed whether PPI’s claim of inverse condemnation was sufficiently developed to permit that claim to move forward.
PPI argued since the site plan was rejected by the Planning Board because a 10% grade for the access road was deemed unsafe, and the Board vigorously opposed the use of blasting operations to permit construction of an access road with an 8% grade, this demonstrated that further application for approval was futile. The Court explained that there is no set test to determine when regulation has gone too far and becomes a taking, an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A takings claims must be ripe for legal review, and the Court explained:
Although we have not adopted a formal test for ripeness, we have found persuasive a two-pronged analysis that evaluates the fitness of the issue for judicial determination and the hardship to the parties if the court declines to consider the issue. With respect to the first prong of the analysis, fitness for judicial review, a claim is fit for decision when: (1) the issues raised are primarily legal; (2) they do not require further factual development; and (3) the challenged action is final. The second prong of the ripeness analysis requires that the contested action impose an impact on the parties sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.
Because the town represented to the Court that the Planning Board would not necessarily deny a subsequent application that conforms with the 8% grade deemed acceptable to the Police Chief, the takings claims was not deemed ripe for review.
*This decision is a final order of the court. Final orders are distinguished from court opinions in that they decide the merits of a case but do not create binding precedent. Final orders may be cited in briefs but only if identified as a non-precedential order. They can be helpful as guidance but are not law. See N.H. Sup. Ct. Rule 12-D(3).