Posted by: Patricia Salkin | July 5, 2008

NH Supreme Court Finds that Use of Conservation Easement on Required Yield-Plan for Open Space Did Not Satisfy Local Regulations

In 1989 the plaintiff’s predecessor in interest received approval from the town planning board to develop the 77-acre parcel by constructing 25 duplex buildings. In 1990, the previous owners conveyed a conservation easement to the town over approximately 50 of the 77 acres, and although the previous owners had discussed the easement with the planning board, the deed did not condition the grant of the easement upon the development or reserve the right of reverter to the grantors.  The former owners never completed the development and in 1994, they conveyed the property to the plaintiff. In 2006, the plaintiff submitted a subdivision application for the development of 14 single-family homes on the 27 acres that were not subject to the conservation easement. The planning board ruled that the plaintiff’s subdivision application did not comply with the zoning ordinance.  Specifically, the board determined that the required open space “yield plan” in which the applicant must show “that the net density will be no greater than permitted within that zoning district for a conventional subdivision or development” could not include the 50 acres already subject to the open space easement.  On appeal to the zoning board, the plaintiff argued that the 50 acres already restricted should be allowed to count favorably towards his yield, and in the alternative, the plaintiff requested a variance to allow him to use the conservation easement in the yield plan.  The plaintiff appealed the decision of the trial court which held that the yield plan did not satisfy the requirements of the zoning ordinance; that plaintiff did not show that the variance was not contrary to the public interest and consistent with the spirit of the ordinance; and that there was insufficient evidence to show his predecessor in interest gave the conservation easement to the town as a quid pro quo for planning board approval of the initial proposed development.

 

With respect to the yield plan, the New Hampshire Supreme Court examined the zoning ordinance which provides that “the total area of dedicated open space shall equal a percentage of 50% of the total buildable area…” and defines “buildable area” as “[t]he area of a site that does not include slope of 25% or more, submerged areas, utility right-of-ways, wetlands and their buffers.”  A yield plan is defined as “[a] plan submitted by the applicant showing a feasible conventional subdivision under the requirements of the specific zoning district in which the property is located and the requirements of any and all State and local subdivision regulations.” Further, the yield plan must show “that the net density will be no greater than permitted within the zoning district for a conventional subdivision or development.”   The law also requires that the yield plan must be realistic. The Supreme Court said that even assuming that the conservation easement land could be including in the yield plan and considered as part of the entire lot for purposes of satisfying the open space requirement, the yield plan submitted by the plaintiff did not satisfy the ordinance requirements for a yield plan.  This was because the plan placed lots within the conservation easement land, and such, the layout was not a realistic showing of a feasible conventional subdivision since the potential houses shown would not be ordinarily legally permitted.  Therefore, the Court upheld the planning board’s finding that the yield plan did not satisfy the provisions of the local ordinance.        

 

Naser v. Town of Deering Zoning Bd. of Adjustment, 2008 WL 2151530 (N.H. 5/22/2008).

 

The opinion can be accessed at: http://www.nh.gov/judiciary/supreme/opinions/2008/naser056.pdf


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