Posted by: Patricia Salkin | November 28, 2016

NH Supreme Court Upholds Planning Board’s Approval of Site Plan

The petitioner, Kulick’s, Inc. (abutter), appealed an order of the Superior Court upholding a decision by the planning board of the respondent, the Town of Winchester, to approve a site plan submitted by the intervenor, S.S. Baker’s Realty Co., LLC (hereinafter “applicant”). The abutter contended that the trial court erred because: the site plan did not constitute a material change from a prior site plan, which the board had rejected; the board imposed an illegal condition subsequent; the applicant’s special exception had expired; the board improperly granted the applicant two waivers from the town’s site plan regulations; and the applicant’s storm water management plan violated the town’s storm water management regulations.

The abutter first argued that the changes in the second site plan were “not significant” and were not “physical changes”; however, it failed to cite any authority requiring that changes be “significant” or “physical.” As to the issue of whether the trial court erred in upholding the board’s requirement that the applicant “hire a qualified engineer to oversee the construction site work … and report to the town,” which the abutter argued was an “illegal” condition, the court found that planning boards have the authority to condition site plan approval.

The court next determined whether the trial court erred in upholding the board’s finding that the applicant’s special exception had not expired. Here, the special exception was granted on February 22, 2012, and the applicant filed its first site plan in March 2012, which the board denied and the applicant appealed. That appeal was not resolved until March 19, 2014. On June 24, 2013, while that appeal was pending, the applicant filed its second site plan. Effective September 22, 2013, RSA 674:33, IV (Supp. 2015) was amended to provide that a special exception is valid for two years “or as further extended by local ordinance or by the zoning board of adjustment for good cause, provided that no such special exception shall expire within 6 months after the resolution of a planning application filed in reliance upon the special exception.” Accordingly, the court found that the special exception’s one-year deadline was stayed by the appeal.

The court also found that the evidence supported the board’s determination that requiring a landscape bed separating the parking area from the building would cause unnecessary hardship and that waiving this requirement was not contrary to the spirit and intent of the regulations. Additionally, the court held that the evidence supported the board’s determination that requiring a ten-foot buffer on one site boundary would cause unnecessary hardship and that permitting a five-foot buffer and a six-foot solid fence instead was not contrary to the spirit and intent of the regulations. Thus, upon consideration of all the regulations, the court held that the applicant’s storm water management plan was authorized by the regulations.

Kulick’s, Inc. v. Town of Winchester, 2016 WL 6472134 (NH 9/16/2016)


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