Posted by: Patricia Salkin | August 16, 2016

NH Supreme Court Finds Board Could Apply Subsequent Application Doctrine as Basis not to Consider Campground Developer’s Second Site Plan Application

CBDA Development, LLC, appealed an order of the Superior Court, which affirmed a decision of the Planning Board of the defendant, Town of Thornton, not to consider CBDA’s second site plan application for a proposed recreational campground. The Board applied the subsequent application doctrine set forth in Fisher v. City of Dover, 120 N.H. 187, 412 A.2d 1024 (1980), and decided it could not consider CBDA’s second application because it did not materially differ in nature and degree from CBDA’s initial application. On appeal, CBDA argued that the trial court erred when it: upheld the Board’s decision to apply the Fisher doctrine to applications before a planning board; and found that the Board reasonably concluded that CBDA’s second application did not materially differ from its first application.

In Fisher, the court held that unless “a material change of circumstances affecting the merits of the application” has occurred or the application is “for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition.” In 2012, CBDA submitted a site plan application to the Board to develop a parcel of land in the Town, in which it proposed a campground with approximately 250 campsites, each of which would house a “park model” recreational vehicle with two parking spaces. In 2013, CBDA submitted a second site plan application for the same property. After comparing CBDA’s second application with its prior application, the Board decided that, although the second application addressed the issue of public access to the campground, it did not resolve the Board’s concern about the permanent nature of the park models on the campsites. Accordingly, the Board unanimously agreed that it could not review CBD’’s second application because the new application did not materially differ in nature and degree from the initial application.

The court found that the rule in Fisher was consistent with the majority rule that a new application for administrative relief or development permission may be considered by a board if there was a substantial change in the circumstances or the conditions relevant to the application. Here, although the Board identified two primary reasons for its denial of the initial application: that the campground was not open to the general public and the initial application presented park model units with a greater amount of permanency than what is intended in the Thornton Campground Regulations and State statutes, it was clear that the Board’s principal concern was the permanency and relative immobility of the proposed park model units. Thus, the record supported the Board’s refusal to consider CBDA’s second application, and the trial court therefore did not err by affirming the Board’s decision.

CBDA Development, LLC  v Town of Thorton, 137 A. 3d 1107 (NH 4/7/2016)

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