NH Supreme Court Holds Waiver Granted to Different Project Five Years Earlier Did Not Apply to Subsequent Application for Elderly Housing Facility

This post was authored by Tracy Feldman, Jacob D. Fuchsberg Touro Law Center

Property owners, who are seeking to construct an elderly housing facility, appealed from a denial of a requested waiver of density requirements set forth in the zoning ordinance. The requested waiver had been denied, first by the town planning board and then its denial was reaffirmed by the Housing Board of Appeals (“HAB”). The petitioner argued that the HAB had erred because there was a similar project in which the board had been granted a density waiver (in 2015) for the same property.

The first project was proposed in 2015, which was for 14 units to be built on 2,360 acres of property along with a retail development. The property owner had requested a waiver of the zoning ordinance and it was granted.

Under the Town zoning ordinance, the Board may waive a particular requirement rather than its strict adherence, if 1) doing so would not be detrimental to the public’s health, safety and welfare, cause injury or damage to other property or fail to promote public interest ; 2) not weigh against the Town of Chichester Master Plan; 3) ensure that the goals and objectives of the sections are maintained; 4) be reasonable and unambiguous with respect to the size and the scale of the proposed project; and 5) protects the natural features that would otherwise be impacted.

The petitioner (property owner) argued that the 2015 waiver that had been granted would apply prospectively to the project that he is currently considering now. However, the Court held that the current project was vastly different from the original proposal. The 2020 project was for a number of units as it proposed to build 24 elderly housing units, it relocated the placement of the proposed elderly housing facility, and it excluded the 10,000 sq. foot retail facility that was proposed in the original plan. It also expanded the size of the acreage that it planned on building from 2,369 to 5.5.

Furthermore, the Court made a decision, purely on the merits of the case, without evaluating the petitioner’s timeliness argument (stating that the waiver in 2015 was granted had not expired). The Court applied a similar method of interpretation to zoning ordinances as it does to statutes. Thus, the Court decided the case through a plain language reading of the ordinance. The Court did not need to go into a legislative intent analysis because the words of the ordinance were plain and unambiguous. The Court found that the consideration of the waiver was in response to the statute’s first factor which corresponded purely to the development of the original project. This factor forced the Board to determine whether the then current project 2015 would have a negative impact on the health, safety and welfare of the community. This factor forced the Court to consider the current 2015 and the immediate result that would occur.

Thus, the granted waiver forced the Board to look directly at the circumstances that were presented by the original proposed 2015 design. Therefore, the granting of this waiver did not apply prospectively to the other proposed projects that were vastly different.

Here, neither the doctrine of subsequent applications no stare decisis would apply. The court clearly concluded that each project must have its own waiver and such granting of a waiver could not be applied to each and every successive project.

Since decisions are decided on a case-by-case basis, and the subsequent application doctrine did not apply here, and the statute must have been interpreted purely on the basis of the 2015 project specifically. Therefore, the granting of the waiver did not correspond to the property owner’s 2020 project. Thus, the HAB and the planning board may have been correct in their granting of the waiver the first time around but it could not be extended or applied by the owner to the current project.

Appeal of Chichester Commons, LLC, 2022 WL 4005666 (NH Sept. 2, 2022)

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