Justia New Hampshire Supreme Court Opinion Summaries

Petitioners James Beal, Mary Beth Brady, Mark Brighton, Lenore Weiss Bronson, Nancy Brown, William R. Castle, Lawrence J. Cataldo, Ramona Charland, Lucinda Clarke, Fintan Connell, Marjorie P. Crean, Ilara Donarum, Joseph R. Famularo, Jr., Philippe Favet, Charlotte Gindele, Julia Gindele, Linda Griebsch, Catherine L. Harris, Roy W. Helsel, John E. Howard, Nancy B. Howard, Elizabeth Jefferson, Cate Jones, Robert McElwain, Mary Lou McElwain, Edward Rice, April Weeks, Michael Wierbonics, and Lili Wierbonics, appealed a Housing Appeals Board (HAB) order that reversed a decision of the Portsmouth Zoning Board of Adjustment (ZBA), which, in turn, had reversed certain approvals granted by the Portsmouth Planning Board (Planning Board) to respondent, Iron Horse Properties, LLC (Iron Horse). Iron Horse owned real property at 105 Bartlett Street in Portsmouth. In 2021, it requested various approvals from the Planning Board in connection with its proposed redevelopment of the site: three multi-family apartment buildings with a total of 152 dwelling units. Iron Horse sought a site review permit, lot line revision permit, conditional use permit (CUP) for shared parking, and a wetland CUP. The Planning Board granted the approvals, and the petitioners, describing themselves as “a group of abutters and other concerned citizens,” then filed an appeal with the ZBA. The ZBA granted the appeal, effectively reversing the Planning Board’s site plan and CUP approvals. Following denial of its motion for rehearing, Iron Horse then appealed the ZBA’s decision to the HAB. The HAB reversed the ZBA’s findings as to six of the petitioners’ claims and dismissed the remaining three claims. Petitioners took their appeal to the New Hampshire Supreme Court, raising a number of issues that were consolidated under two overarching questions: (1) whether Iron Horse’s proposed project met the six criteria for a wetland CUP set forth in section 10.1017.50 of the Portsmouth Zoning Ordinance; and (2) whether Iron Horse’s permit requests were barred under the doctrine of Fisher v. City of Dover, 120 N.H. 187 (1980). Finding no reversible error in the HAB’s decision, the Supreme Court affirmed. View "Appeal of Beal, et al." on Justia Law

Plaintiffs Bradley Weiss and Cathleen Shea appealed a superior court order granting defendant Town of Sunapee's (Town) motion to dismiss. The trial court determined that, because plaintiffs failed to request a second rehearing from the Town’s Zoning Board of Adjustment (ZBA), the court did not have subject matter jurisdiction over their appeal. The New Hampshire Supreme Court reversed and remanded: pursuant to RSA 677:3, plaintiffs perfected their appeal to the superior court from the ZBA’s April 1 denial by timely moving for rehearing. View "Weiss, et al. v. Town of Sunapee" on Justia Law

Plaintiff Jeffrey Raymond, as Trustee of J&R Realty Trust, appealed a superior court order affirming a decision of the Zoning Board of Adjustment (ZBA) for the Town of Plaistow denying the plaintiff’s variance request and upholding the zoning determination of the town’s Building Inspector (BI). Plaintiff argued the court erred in affirming the ZBA’s decision because: (1) the record supported plaintiff’s contention that its proposed use of the property falls within the definition of a Trade Business; and (2) the ZBA unlawfully considered prior zoning violations at other properties operated by plaintiff’s anticipated tenant when making its determinations. After review, the New Hampshire Supreme Court concluded that, based upon the plain language of the town’s zoning ordinance, plaintiff’s proposed use of the property constituted a Trade Business. Accordingly, the Court reversed the trial court’s order upholding the ZBA’s decision denying plaintiff’s appeal of the BI’s zoning determination. View "Raymond v. Town of Plaistow" on Justia Law

Plaintiffs Juliana and David Lonergan appealed a superior court order affirming a Town of Sanbornton’s (Town) Zoning Board of Adjustment (ZBA) approval of a special exception for an excavation site for property that intervenor, R.D. Edmunds Land Holdings, LLC, owned. As a threshold matter, the Town and the intervenor argued that the New Hampshire Supreme Court lacked subject matter jurisdiction based upon plaintiffs’ failure to timely move for rehearing with the ZBA as required by RSA 155-E:9 (2014). To this, the Supreme Court concluded that RSA 155-E:9 applied to plaintiffs’ motion for rehearing to the ZBA and that plaintiffs did not meet the ten-day filing deadline set forth in the statute. Accordingly, the Supreme Court dismissed the appeal for lack of subject matter jurisdiction and vacated the superior court’s order. View "Lonergan v. Town of Sanbornton" on Justia Law

Plaintiffs Richard and Sanaz Anthony appealed a superior court order affirming a decision of the Town of Plaistow’s (Town) Planning Board granting site plan approval for the development and consolidation of two lots by the intervenor, Milton Real Properties of Massachusetts, LLC. Plaintiffs argued the superior court erred by: (1) ruling that it lacked subject matter jurisdiction to address plaintiffs’ argument that the proposed use was not permitted in the zoning district; (2) finding that the planning board made a sufficient regional impact determination pursuant to RSA 36:56 (2019); and (3) ruling that the planning board’s decision granting site plan approval was otherwise lawful and reasonable. The New Hampshire Supreme Court concluded that the superior court did not err in dismissing the plaintiffs’ zoning argument, in concluding that the planning board acted reasonably when it implicitly found that the project would not have a regional impact, and in finding that the planning board’s decision was otherwise lawful and reasonable. View "Anthony, et al. v. Town of Plaistow" on Justia Law

Plaintiff Town of Conway (Town) appealed a superior court order granting defendant Scott Kudrick's motion for judgment on the pleadings. The court ruled that the Conway Zoning Ordinance (2013) (hereinafter, “CZO”) permitted a non-owner-occupied short-term rental (STR) in the Town’s residential districts because such use of a property fell within the CZO’s definition of a “residential/dwelling unit.” The Town argued that the court erroneously interpreted the CZO to allow non-owner-occupied STRs in residential districts. After review, the New Hampshire Supreme Court concluded the trial court correctly interpreted the CZO and held that the CZO permitted non-owner-occupied STRs in the Town’s residential districts. View "Town of Conway v. Kudrick" on Justia Law

Petitioner Town of Amherst (Town) appealed Housing Appeals Board (HAB) orders vacating the denial by the Town’s planning board (Board) of subdivision and site plan approval sought by the respondents, Migrela Realty Trust II and GAM Realty Trust (collectively, Applicant). In November 2020, Applicant filed a subdivision/site plan approval application with the Board for 54 age-restricted and unrestricted housing units. Applicant previously had been granted a conditional use permit (CUP) for “an increased project density” of up to 54 units under the Town’s since-repealed Integrated Innovative Housing Ordinance (IIHO). During the review process with respect to the subdivision/site plan application, the project’s density was reduced from 54 to 49 units. The composition of age-restricted and unrestricted units was also modified, with the final plan designating 14 units as age-restricted, 65-and-older units and the remaining 35 units as unrestricted. In April 2021, the Board denied the site plan because: (1) the Board perceived conflicts between the proposed project and federal law; and (2) “the proposed design does not protect and preserve the rural aesthetic the Town has consistently valued, as is required by Section 4.16A of the Zoning Ordinance.” Finding no reversible error in the HAB's orders, the New Hampshire Supreme Court affirmed judgment in favor of Applicant. View "Appeal of Town of Amherst" on Justia Law

Plaintiff TransFarmations, Inc. appealed a superior court decision to uphold the Town of Amherst Planning Board's (Town) decisions to deny TransFarmations' two successive applications for a conditional use permit (CUP). In May 2019, TransFarmations requested a “Conceptual Meeting” with the Town’s planning board (Board) concerning its proposed development of an approximately 130-acre property known as the Jacobson Farm. It stated that the “development will be designed to meet many of the desired attributes the Town . . . has articulated in [its] Master Plan and [Integrated] Innovative . . . Housing Ordinance (IIHO),” including workforce housing and over-55 housing. TransFarmations subsequently submitted a CUP application under the IIHO for a planned residential development containing 64 residential units. In its challenge to the decisions, TransFarmations argued both that the decisions failed to adequately state the ground for denial and that the Board acted unreasonably because the second CUP application was materially different from the first. The trial court concluded that the Board adequately provided the reason for its first decision on the record because “the Board members discussed, in detail, their reasons for concluding that no material differences [between the first and second applications] existed.” The court also concluded that “the Board acted reasonably and lawfully in reaching [that] decision.” Accordingly, the court affirmed both of the Board’s decisions. TransFarmations contended the trial court erred in affirming the Board’s decision not to accept the second application because TransFarmations submitted that application “at the Board’s invitation and with the information the Board requested.” The New Hampshire Supreme Court concluded TransFarmations’ second application supplying the requested information was “materially different from its predecessor, thus satisfying Fisher.” Because the trial court’s decision concluding otherwise misapplied Fisher v. Dover, it was legally erroneous. Accordingly, the Court reversed the trial court’s order as to the second CUP decision and remanded. View "TransFarmations, Inc. v. Town of Amherst" on Justia Law

Petitioner Chichester Commons, LLC appealed a Housing Appeals Board (HAB) decision affirming a decision of the planning board for respondent Town of Chichester (Town), denying petitioner’s request for a waiver of the density requirement set forth in the Town’s zoning ordinance. Petitioner argued that the HAB erred by affirming the board’s decision because, in 2015, the board granted the petitioner a density waiver for a similar elderly housing project that petitioner had proposed for the same property. The New Hampshire Supreme Court concluded the 2015 density waiver did not apply to the current version of petitioner’s proposed elderly housing project and was not binding upon the board. Accordingly, it affirmed the HAB’s decision. View "Appeal of Chichester Commons, LLC" on Justia Law

Intervenors Micheline Elias and The Fakhourys, LLC (collectively, the developer), appealed a superior court order denying their motion to dismiss a petition filed by the petitioners, George Stergiou, Jen McCarthy, Brendan Sullivan, and Kirankumar Tamminidi (the abutters), challenging a conditional site plan approval granted to the developer by the planning board (the Board) for the respondent City of Dover (the City). In January 2019, the developer applied to the Board for permission to construct a mixed use development project in Dover. After a public hearing, the Board conditionally approved the site plan (the 2019 Approval). The 2019 Approval and Chapter 153, Article II, Section 153-8 of the City’s site review regulations (the Certification Provision) required the developer to provide the Board with copies of the plan in various formats within 90 days. Due to unforeseen circumstances, the developer was unable to meet this deadline. In July 2020, the developer asked the Board to “re-approve” the 2019 application so that the project could move forward. The Board held a duly-noticed meeting, at which it conditionally re-approved the Site Review Plan subject to specified “Conditions to be Met Prior to the Signing of Plans” (the 2020 Approval). The abutters petitioned pursuant to RSA 677:15, challenging the 2020 Approval as unlawful and unreasonable. The New Hampshire Supreme Court concluded the 2019 Approval was not timely appealed and remained in force, and the 2020 Approval was void ab initio. The Court thus affirmed in part, reversed in part, and remanded with instructions to dismiss, with prejudice, the abutters’ RSA 677:15, I, appeal as untimely. View "Stergiou et al. v. City of Dover" on Justia Law