Plaintiffs appealed the order of the Superior Court, which affirmed the ZBA’s decision to uphold the decisions of the City of Portsmuth’s Historic District Commission granting a conditional use permit and a certificate of approval to the intervenors, Deer Street Development Company, Inc., and North End Master Development, LP, to construct a multi-use complex.
On appeal, plaintiffs argued that the Superior Court erred because the ZBA refused to consider traffic, parking, and safety issues in reviewing the commission’s decisions to grant the intervenors a conditional use permit and a certificate of approval. Here, however, the record reflected the City’s planning board reviewed traffic, parking, and safety issues as part of its site plan review, and that the Superior Court upheld the site plan. Furthermore, the trial court held that the ZBA did not err in refusing to consider traffic, parking, and safety issues because the commission’s review criteria focus on the aesthetic and architectural characteristics of the proposed project and did not require the commission to consider traffic, parking, or safety issues.
Plaintiffs next argued that the commission, planning board, and ZBA failed to consider whether the project complied with the city’s master plan; however, the applicable zoning ordinance did not require the planning board to explicitly reference the master plan in its comments. Finally, the plaintiffs alleged that the principal for the intervenors told the council that most of the proposed building would be no higher than 45 feet, but that most of the building was 60 feet in height. The court found this issue was beyond the scope of the appeal because the ZBA lacked jurisdiction to overturn a council decision. Accordingly, the court upheld the trial court’s holding that the plaintiffs lack standing to raise this claim, and affirmed the dismissal of plaintiffs’ claims.
Clark v City of Portsmuth, 2017 WL 2797379 (NH 5/25/2017)
Posted by: Patricia Salkin | July 5, 2017
NH Supreme Court Upholds the Granting a Conditional Use Permit and a Certificate of Approval to Construct a Multi-Use Complex by Historic District Commission
Posted in Historic Preservation, Zoning Boards of Appeal
Categories
- Access to Government
- Accessory Uses
- ADA
- Adequate Public Facilities Ordinances
- Adirondacks
- Adult Entertainment Facilities
- Aesthetics
- Affordable Housing
- Aging
- Agricultural Uses
- Airports
- Alcohol Sales
- Alienation of parkland
- Amending Zoning
- Annexation
- Architectural Review Board
- Authority to Zone
- Big Box/Formula Retail
- Book Reviews
- Brownfields
- Building Codes
- Cemeteries
- Climate Change
- Collateral Estoppel
- Comprehensive Plan
- Condemnation/Eminent Domain
- Conditions on Approval
- Conservation Easements
- Constructive Approval
- Contract Zoning
- Current Caselaw
- Current Caselaw – New York
- Density Bonus
- Development Agreements
- Development Rights Agreements
- Discrimination
- Drones
- Dual Zone Parcel
- Due Process
- Easements
- Educational Use
- Endangered Species
- Energy
- Enforcement
- Environmental Justice
- Environmental Review
- Equal Protection
- Equitable Estoppel
- Ethics
- Exactions
- Exclusionary Zoning
- Exemption from Zoning
- Extraterritorial Jurisdiction
- Fair Housing Act Amendments
- Family
- Federal Preemption
- Fees
- FHA
- Financing
- first amendment
- Floating Zones
- Flood Control
- FOIL
- Food Trucks
- Formula Retail
- Fourth Amendment
- Fracking
- GIS
- Growth Management
- Hearings
- Highways and Roads
- Historic Preservation
- Home Occupations
- Homeland Security
- Host Community Agreements
- Hours of Operation
- Housing
- Immunity
- Impact Fees
- Incentive Zoning
- Intergovernmental Conflicts
- inverse condemnation
- Junkyards
- Laches
- Marcellus Shale Gas Drilling
- Mediation
- Medical Marijuana
- Mining
- Mobile Homes
- moratoria
- New Legislation
- Non-Conforming Uses
- Notice
- Nuisance
- Oceans
- official map
- Overlay Zone
- Paper Streets
- Pine Barrens
- Planned Development Districts
- Players in the Land Use Game
- Preemption
- Procedural Issues
- Certiorari
- Consent Decree
- Declaratory Relief
- Estoppel
- Final Decisions
- Findings
- Injunctive Relief
- Intervention
- Judicial Abstention
- Jurisdiction
- Legislative vs Adjudicatory
- Mandamus
- Mootness
- Necessary Parties
- Notice of Decision
- Prior Precedent
- Referral Requirements
- Res Judicata
- Rooker-Feldman Doctrine
- Time of Application Rule
- Property Rights
- Public Trust Doctrine
- Purchase of Development Rights
- qualified immunity
- Redevelopment
- Referenda
- Regional Planning
- Religious Uses – Non-RLUIPA
- Remedies
- Residency Restrictions
- Restrictive Covenants
- Rezoning
- Ripeness
- RLUIPA
- Second Amendment
- Section 1983 Liability
- Senior Housing
- Setback Requirement
- Short Term Rentals
- sign
- Signs
- Site Plan Review
- SLAPP Suits
- Smart Growth
- solar energy
- Special Facts Exception
- Special Use/Exception
- Spot Zoning
- Standing
- Statewide Planning
- Statute of Limitations
- Straddled Parcels
- Student Housing
- Subdivision Regulation
- Takings
- tatoo parlors
- Transfer of Development Rights
- Uncategorized
- Urbanism
- Utilities
- Variances
- Vested Rights
- Waivers
- Wetlands
- Wind Development
- Wireless Communications
- Younger Abstention Doctrine
- Zoning – Interpretation
- Zoning Administration
- Zoning Boards of Appeal
- Zoning Map
- Zoning-Adopting/Amending
Leave a Reply