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

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)

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