Notice to Abutter is Required when Abutter is “Directly” not “Diagonally” Across a Street; and Planning Board Condition that Approvals be Obtained from all Necessary Approving Bodies Validates Conditional Approval

Seabrook Onestop, Inc. & a. v. Town of Seabrook & a.
New Hampshire Supreme Court Case No. 2020-0251
Thursday, September 16, 2021

A developer purchased a lot in a commercial zoning district along a Class V or better highway. The developer received site plan approval to develop a large shopping center on the lot. Several years later, the developer received subdivision approval to carve out a 1-acre lot from the remainder, and the necessary variances related to the dimensional requirements to offer that lot as retail space. Subsequently, the developer sought approval to amend the site plan to allow a gas station to be constructed. Gas stations are allowed uses in the commercial zone. The planning board granted conditional approval.

An interested party objected, resulting in the case coming before the New Hampshire Supreme Court. Its objections centered on four arguments: (1) the dimensional requirement variances were void; (2) using the lot for a gas station was outside the scope of those variances; (3) the planning board’s conditional approval violated RSA 674:41; (4) the planning board did not consider the objector’s concerns about traffic and well contamination.

The first argument pertained to notice to  the objector of  the ZBA hearing on granting the variances. The Court found that the statue was clear as to the meaning of the term “abutter,” and “diagonally across the street” is not the same as “directly across the street.” Further, as the variances were for dimensional requirements, not the use of the property. Therefore, the use of the lot as a gas station was not outside the scope of the variances.

The third argument pertaining to RSA 674:41 was resolved by the Court by pointing to the Planning Board’s conditional approval, with a condition subsequent being “[a]ll approvals that are required from . . . any . . . party,” presumably including the select board pursuant to RSA 674:41.

The fourth and final argument pertained to the conditions relating to traffic control and potential well contamination. The Court held that the planning board acted in accordance with its statutory obligations.


Additional Information: 

Practice Pointer:  Planning boards would be wise to include a condition that all approvals that are required from any party be part of the conditional approval process in order to avoid arguments over unlawful approvals.