Posted by: Patricia Salkin | September 18, 2010

NH Supreme Court Refuses to Apply Most Restrictive Regulations Where Project Crossed Several Zoning Districts Based on Law of Case Doctrine

Plaintiffs appealed the Superior Court’s decision to affirm the Zoning Board of Adjustment’s (ZBA) approval of a site plan for construction of a retail grocery store within a rural residential district. One-third of the parcel in question lies within the Town’s Historic District and the remainder within the Rural Residential District.  The supermarket, however, would have been on the property within the Rural Residential District.  In 2004, the Town of Kingston’s zoning ordinance was amended to prohibit most retail uses in the Rural Residential District unless a certificate of approval was obtained from the Historic District Commission.  In 2006, intervenor, Konover Development applied for a certificate of approval to build a Hannaford Brother’s Supermarket.  The certificate was denied and Konover Development appealed to the Zoning Board of Adjustment (ZBA), which granted the approval.

Then in 2008, the Kingston Planning Board granted Konover a conditional site plan for the proposed supermarket. Plaintiffs appealed alleging that the approval violated the Kingston ordinance prohibiting retail use in the Historic District but the ZBA denied the appeal. Plaintiffs appeal arguing that the planning board was required to apply the most restrictive zoning provision, the ZBA erred when it refused to consider plaintiff’s argument that the development by Konover violated the zoning ordinance, and the trial court lacked subject matter jurisdiction because the planning board decision was not final.

The Supreme Court rejected Plaintiffs’ argument that the trial court lacked subject matter jurisdiction stating that both RSA 677:15 and RSA 676:5 “afford a person aggrieved by a planning board decision two distinct avenues of appellate review depending upon the nature of the claim.”  And in this instance, Plaintiffs could appeal to both the ZBA and the trial court. 

Plaintiffs’ contended that because the property fell within the Historic, Rural Residential and Wetlands Conservation Districts, the planning board was required by the Kingston Zoning Ordinance and state law to apply the most restrictive provision.  The trial court declined to address this argument based on a position taken by all the parties in a previous case.  In the previous case, all parties “conceded that Town of Kingston Regulation 4.10.2 exclusively controlled the determination as to whether or not [Konover’s] supermarket would be allowed.”  By taking that position, all parties, including the plaintiffs, were prohibited by the law of the case doctrine from later asserting that regulations of different zoning districts apply to the project in question.  The Supreme Court upheld this determination by the trial court.

Lastly, the Supreme Court held that plaintiffs should have provided specific grounds for the trial court’s decision being unreasonable rather than asserting that “numerous other provisions” were violated.  Plaintiffs should have also demonstrated why they believed the ZBA and planning board made an error when it granted Konover’s certificate of approval.

Saunders v. Town of Kingston, 2010 WL 2869545 (N.H. 7/23/2010)

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2010/2010079saund.pdf


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