The petitioners owned property in a commercial zone in Wilmot. In 1997, they received subdivision approval to divide the property into 12 lots for an office park. However, the office park was not developed, and in 2004, the petitioners applied for subdivision and site plan approval to build an eight-unit residential condominium structure on each of four of the original 12 lots. The planning board denied both applications.
In its opinion, the Court reviewed the planning board’s reasons for denying the applications. The first reason was that the 2004 applications were not consistent with the original intent of the 1997 subdivision approval for the same property. The applicants proposed to further subdivide the lots that had been created in the original 1997 approval, and to develop them in a different way than originally planned. However, the Court noted that no statute or regulation requires a resubdivision of property to meet any standard or requirement different from an initial subdivision. On the contrary, RSA 672:14, I specifically provides that a “subdivision” includes “resubdivision.” As a result, the Court held that the applicants “were entitled to have their new applications reviewed on their own merits under the applicable regulations, unconstrained by the prior subdivision approval.”
The other reason given by the planning board was that the applications did not meet the density requirements of the zoning ordinance. Under the ordinance, a multi-unit residential condominium project would be considered a “cluster subdivision.” The Court reviewed the ordinance to see whether or not any minimum acreage was required for each dwelling unit in a cluster subdivision. Although the town asserted that several different sections of the ordinance, read together, did impose a density requirement for each unit, the Court did not agree. Until 2004, one section of the zoning ordinance actually did require a certain minimum acreage per unit; however, the town amended the ordinance that year and removed the explicit language in that section. Noting that the town “knew how to impose density limits expressed as a number of units,” the Court said it would not imply a limit where the town had not done so because an ordinance should not be interpreted to “add words that the drafters did not see fit to include.”
Much of this case involved the interpretation of very specific language in one town’s zoning ordinance. However, the opinion illustrates the importance of carefully drafting zoning ordinances and amendments so that they contain a clear statement of the requirements that the town intends to impose.