Transfarmations applied for a conditional use permit (CUP) from the Amherst Planning Board seeking permission for a 64 unit planning residential development with a mixture of workforce housing and over-55 housing under the Town’s Integrated Innovative Housing Ordinance. The town ordinance required that the applicant must establish that there will be no significant adverse impacts upon the public health, safety and general welfare from the proposed use. At a public hearing held on December 4, 2019 the board voted to deny the application in part because a traffic study had not yet been completed. After the vote to deny was taken the Board chair then stated that the applicant could reapply for a CUP with more information.
After filing an appeal with the Superior Court, Transfarmations resubmitted its application along with a 43-page traffic study. The planning board first scheduled a public hearing to address whether the application met the materially different standard for subsequent applications that were previously denied under Fisher v. Dover and CBDA Development LLC v. Thornton. A planning board having rejected one land use application may not review subsequent applications absent a material change of circumstances affecting the merits of the application. Following its discussion, the Board voted that the revised application was not materially differ from the first precluding acceptance and consideration of the application on the merits.
On appeal the NH Supreme Court stated its post-Fisher cases recognize that evidence of an invitation to submit a modified application to meet a land use board’s concern acts as additional evidence that a subsequent application so modified is materially different. The Court observed that the only information mentioned by any voting Amherst Planning Board member as missing from the first application was a traffic study. Accordingly, the Court agreed with Transfarmations that the Board expressly invited a revised application with more information, a completed traffic study.
The court reiterated that when a denial identifies a lack of information as the deficiency in the initial application, the court has held that a reapplication proposing a project substantially identical to the prior proposed project is materially different under Fisher if the new application provides the information missing from the prior application.