Posted by: Patricia Salkin | July 27, 2009

New Hampshire Supreme Court Requires Remand to Planning Board of Conservation Development Subdivision Application

The town planning board approved a conservation development subdivision (CDS) proposal and yield plan by developer Graystone Builders, Inc. (Graystone). The neighbors of the CDS appealed and the superior court affirmed the CDS but remanded the yield plan to the board to resolve a wetlands compliance issue. Plaintiffs then appealed the superior court’s approval of the board’s decision and Graystone cross-appealed the court’s remand of the wetlands issue. With respect to the CDS proposal, the New Hampshire Supreme Court held that the board applied the wrong standard in its waiver of the regulation prohibiting more than ten lots on a dead-end street, reversed the superior court’s decision to uphold the board’s approval of the CDS proposal and remanded for further proceedings. On remand, the superior court granted Plaintiffs motion for entry of final order reversing the board’s approval of the CDS proposal and yield plan. Graystone appealed claiming that the superior court erred in its interpretation of the mandate, and that the mandate required the superior court to remand the proceeding to the board.  

The New Hampshire Supreme Court held that the mandate required the superior court to remand the proceeding to the board. Instead of requiring evidence that Graystone would suffer undue hardship or injustice if the regulation was applied, the board simply waived the requirement. Graystone was therefore never given the opportunity to produce evidence under the correct standard and the board was not given the opportunity to apply the correct standard. The court held that its mandate on remand did not permit the trial court to reverse the board’s decision but rather required the trial court to remand the proceeding to the board. 

Auger v. Town of Strafford, 2009 WL 1098476 (N.H. 4/24/2009).

The opinion can be accessed at:  http://www.courts.state.nh.us/supreme/opinions/2009/auger051.pdf


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