Articles Posted in Zoning, Planning & Land Use

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Defendant-landowner Carl Casagrande appealed a superior court order that granted summary judgment to plaintiff Town of Goshen. The issue before the trial court was whether a section of road abutting Casagrande’s property was an unmaintained town road, or whether, as Casagrande contended, it was private property because the residents of Goshen voted at a town meeting in 1891 to discontinue the road. After reviewing the record of the 1891 town meeting, including the language of the warrant article, the trial court concluded that the town had not voted to discontinue the road, and, therefore, the abutting road was a public highway. View "Town of Goshen v. Casagrande" on Justia Law

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The Town of Bow (town) appealed a superior court order granting plaintiff Public Service Company of New Hampshire (PSNH) an abatement of taxes on its property in the town for tax years 2012 and 2013. PSNH owns certain special-purpose utility property in the town, including Merrimack Station, two combustion turbines, and a high-voltage regional electric transmission and distribution network. Merrimack Station consists of two coal-fired units that produce steam to rotate turbines and generators to produce electricity. The combustion turbines cannot be remotely turned on and, instead, must be physically turned on in a control room at the Merrimack Station site. At trial, the sole issue was the determination of the proper value of this special-purpose utility property for the tax years in question. Following a six-day bench trial, the trial court found PSNH's expert “testimony [to be] more credible than” the town's and, therefore, ruled that PSNH had met its burden of demonstrating that it was entitled to an abatement for tax years 2012 and 2013 with respect to the disputed property. The town moved for reconsideration, which the court denied, and this appeal followed. Finding no reversible error, the New Hampshire Supreme Court affirmed the superior court's judgment. View "Public Service Company of New Hampshire v. Town of Bow" on Justia Law

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Plaintiff Dartmouth Corporation of Alpha Delta (Alpha Delta) appealed a Superior Court order affirming a Zoning Board of Adjustment (ZBA) decision in favor of defendant Town of Hanover (Town). The ZBA determined that the use of Alpha Delta’s property at 9 East Wheelock Street (the property) violated the Town’s zoning ordinance. Alpha Delta has been a fraternity for students at Dartmouth College (College) since the 1840s. In 1931, the Town enacted its first zoning ordinance. At that time, Alpha Delta’s property was located in the “Educational District” in which an “[e]ducational use, or dormitory . . . incidental to and controlled by an educational institution” was permitted as of right. Between 1931 and the mid- 1970s, the property was located in various zoning districts where its use by Alpha Delta as a fraternity was allowed as of right. In 1976, the Town enacted its current zoning ordinance, under which the property was located within the “Institution” district. A student residence in the Institution district was allowed only by special exception. In 2015, the College notified Alpha Delta by letter that, due to the fraternity’s violation of the school’s standards of conduct, it had revoked recognition of the fraternity as a student organization. “Derecognition” revoked certain privileges, pertinent here was recognition as a ‘college approved’ residential facility; and use of College facilities or resources. The College notified Alpha Delta that it would be removed from the College’s rooming system under which student room rents are paid through the College, and would no longer be under the jurisdiction or protection of the College’s department of safety and security. Furthermore, the College notified the Town that Alpha Delta no longer had a relationship with Dartmouth College, and notified Alpha Delta that it was the College’s “understanding that under the Town zoning ordinance no more than three unrelated people will be allowed to reside on the property.” The Town’s zoning administrator subsequently notified Alpha Delta by letter that use of the property violated the zoning ordinance. Alpha Delta appealed, but finding none of its arguments availing, the Supreme Court affirmed. View "Dartmouth Corp. of Alpha Delta v. Town of Hanover" on Justia Law

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Petitioner James Boyle, as trustee of the 150 Greenleaf Avenue Realty Trust, appealed a decision of the New Hampshire Transportation Appeals Board (TAB) affirming the denial of his application for a permit to construct a driveway onto a state highway. The TAB based its decision upon sections 7(a) and 7(e) of the New Hampshire Department of Transportation’s (DOT) “Policy for the Permitting of Driveways and Other Accesses to the State Highway System.” Although the TAB concluded that petitioner’s proposed driveway would adequately protect the safety of the traveling public, because it also determined that there was sufficient support for the hearings examiner’s conclusion that the proposed driveway would cause an unreasonable hazard to the traveling public, it upheld the hearings examiner’s denial of the petitioner’s permit application. On appeal, petitioner challenged the finding of an unreasonable hazard, arguing that it was impossible for a driveway to adequately protect the safety of the traveling public and simultaneously cause an unreasonable hazard to the traveling public. Thus, petitioner argued that the TAB erred in denying his permit application. The Supreme Court agreed with petitioner, and, therefore, reversed. View "Appeal of Boyle" on Justia Law

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Plaintiff owned a 105-acre tract of land in Wakefield. Approximately 68 acres of the tract was used for recreational vehicle campsites. In 1994, plaintiff obtained approval from the planning board to build 16 seasonal cabins on the remaining 37 acres of the tract. Each approved cabin was to be built on two acres. In 2001, the planning board decided that each cabin could be 600 square feet. Plaintiff then began creating the cabin development and as of 2007 it had constructed four cabins. In 2007, plaintiff consulted with the planning board about increasing the size of the remaining 12 cabins to approximately 850 square feet. Plaintiff’s request was denied and, despite the previous approval of 600 square feet per cabin, the permissible size of each of plaintiff’s remaining cabins was reduced to a maximum of 400 square feet. The matter was litigated and the Trial Court ordered that, because the plaintiff had relied upon the planning board’s prior approval in creating the cabin development, plaintiff was allowed to construct 600-square-foot cabins. In April 2011, plaintiff sought permission from the planning board to increase the size of the remaining 12 cabins to approximately 850 square feet. The request was again denied, and plaintiff appealed to the superior court. When the superior court upheld the planning board's decision, plaintiff appealed to the Supreme Court, arguing: (1) nothing in the language of RSA chapter 216-I precluded it from constructing “890 square foot” cabins; (2) the planning board lacked the authority to enforce compliance with RSA chapter 216-I; and (3) its rights to procedural due process were violated by confusion about which town entity defendant's attorney represented at a May 2011 planning board hearing. The Supreme Court concluded that the trial court erred in ruling that, to comport with RSA chapter 216-I, the plaintiff’s “cabins must be less than 400 square feet.” The case was remanded for the superior court to vacate the planning board’s decision and for the planning board to address plaintiff’s request to increase the size of the remaining cabins. View "Lake Forest R.V. Resort, Inc. v. Town of Wakefield" on Justia Law

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Plaintiffs, Paul and Sara Lynn, appealed a Superior Court order granting summary judgment to defendant Wentworth By The Sea Master Association (association), and denying summary judgment to plaintiffs. The parties disputed the validity of an easement on the plaintiffs’ property that provided members of the association beach access. Because the Supreme Court concluded that an easement was validly created, it affirmed. View "Lynn v. Wentworth By The Sea Master Association" on Justia Law

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Plaintiff CBDA Development, LLC (CBDA) appealed a superior court order affirming a decision of the Planning Board (Board) of defendant, Town of Thornton not to consider CBDA’s second site plan application for a proposed recreational campground. The Board decided that it could not consider CBDA’s second application because it did not materially differ in nature and degree from CBDA’s initial application. CBDA argued that the trial court erred when it: (1) upheld the Board’s decision to apply the "Fisher v. City of Dover" doctrine to applications before a planning board; and (2) found that the Board reasonably concluded that CBDA’s second application did not materially differ from its first application. Finding no reversible error, the Supreme Court affirmed. View "CBDA Development, LLC v. Town of Thornton" on Justia Law

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THI is a subsidiary of THI of New Hampshire, LLC, itself a subsidiary of a parent company that owns nursing home operators throughout the country. In approximately 2003, THI purchased and began operating a nursing home, Pleasant Valley Nursing Center (Pleasant Valley), in Derry. In 2012, THI had an opportunity to expand when Exeter Healthcare, Inc. closed its nursing home in Exeter and offered to sell its 109 licensed nursing beds. THI and Exeter Healthcare entered into a purchase and sale agreement for the beds in 2013, and THI made deposit payments to Exeter Healthcare in accordance with the agreement. The following month, THI requested that the Board grant approval for the transfer of the beds from Exeter Healthcare to THI. Because the Pleasant Valley building would not accommodate all of the beds to be transferred, THI also requested permission to apply for a Certificate of Need (CON) to construct a new building to house the beds in a different location. THI selected a site in Londonderry for the new building, which it planned to operate under the name Traditions at Londonderry. In its application, THI explained that the transfer would occur in the same nursing home region in Rockingham County, such that the number of beds in the region would not increase. THI also informed the Board that its contract conditioned its obligation to buy the beds from Exeter Healthcare upon the Board’s approval of the CON for Traditions at Londonderry. In this appeal of the Health Services Planning and Review Board's (Board) order, THI argued that the Board incorrectly interpreted RSA 151-C:4, III(a) as preventing the Board from granting a certificate of need (CON) to THI for the construction of the Pleasant Valley nursing home. Although the Board found that THI’s proposed facility would satisfy regulatory requirements for services offered, quality of care, and financial feasibility, among other criteria, the Board nevertheless denied THI’s application because the Pleasant Valley facility was not an “existing facility.” Finding no error, the Supreme Court affirmed the Board's decision. View "Appeal of THI of New Hampshire at Derry, LLC " on Justia Law

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Petitioner Merriam Farm, Inc. appealed a superior court decision dismissing its appeal of a Zoning Board of Adjustment (ZBA) decision of the respondent, Town of Surry (Town), on the basis that the appeal was barred by claim preclusion. Under the Town's zoning ordinance, to build on its property, petitioner had to establish that the property has at least 200 feet of frontage on a public street, which was defined, in pertinent part, as a Class V or better road. In 2009, petitioner applied to the Town's selectboard for a building permit to construct a single-family home on its property. The selectboard denied the application because the property lacked frontage on a Class V or better road. In 2013, petitioner applied to the ZBA for a variance from the frontage requirement in the Town's zoning ordinance in order to build a single-family residence on the property. The ZBA denied the application. After unsuccessfully moving for rehearing, the petitioner appealed to the trial court. The Town asserted, among other things, that petitioner's application for a variance was barred by the doctrines of claim preclusion and preemption. Petitioner argued, among other things, that the Town waived its claim preclusion argument and that the ZBA improperly applied the statutory criteria governing variances under RSA 674:33, I(b). "If, based upon res judicata, we were to bar a subsequent application for a variance after the denial of a building permit application, we would, as the petitioner notes, effectively require landowners to simultaneously apply for all potentially necessary land use permits, variances, and exceptions. Such would be costly and inefficient, and burden the zoning process by adding complexity to an already complicated process." Accordingly, the Supreme Court concluded that the denial of petitioner's application for a building permit gave rise to a cause of action different from the denial of its variance application, and, thus, res judicata did not preclude petitioner's variance application. Therefore, the Court reversed the trial court's ruling. View "Merriam Farm, Inc. v. Town of Surry " on Justia Law

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Defendant Edward C. Furlong, III appealed a circuit court order awarding judgment in favor of plaintiff the Town of Bartlett (Town) in a zoning enforcement action. Defendant's primary argument on appeal was that the trial court exceeded its jurisdiction by imposing a fine in excess of $25,000, but he also raised various collateral claims of error. Finding his arguments lacking in merit, the Supreme Court affirmed the trial court. View "Town of Bartlett v. Furlong" on Justia Law