Thomas v. Hooksett
JOSEPH THOMAS & a. v. TOWN OF HOOKSETT
Argued: March 8, 2006, Opinion Issued: July 20, 2006 (vesting, "active and substantial building and development", 674:39)
Plan-link discussion, July 2006
Thu 7/20/2006 9:45 AM
[Plan-link] Thomas v. Town of Hooksett (Issued July 20, 2006)
Another interesting land use case from our Supremes that should put property owners on notice not to rely too much on what the code enforcement officer says.
Mr. Boisvert received a site plan approval from the Hooksett Planning Board to build a gas station and convenience store. The approval was challenged and litigated, and the challenge failed (via a Supremes opinion) on January 23, 2003. While the litigation was pending, the zoning ordinance was changed in a manner that would prohibit the gas station.
After the litigation ended, Boisvert asked the town’s code enforcement officer (and a planning board member) about the status of his site plan approval. Both officials advised Boisvert very clearly and specifically: if Boisvert obtained a building permit within one year after January 23, 2003, and started to build within six months thereafter, his approval was valid and would not be rescinded.
These facts are not ambiguous; they are stated in the Supremes’ opinion.
Boisvert obtained the building permit within the year he was advised to do so, and started building within the six month period he was advised to do so.
In May 2004, the code enforcement officer changed his mind and issued a letter to Boisvert rescinding the building permit. The code enforcement officer cited RSA 674:39 and stated that Boisvert had failed to engage in "active and substantial development" in the one year period after the approval date on January 23, 2003. Thus, because of the new zoning changes adopted during the litigation, the gas station would not be allowed.
Boisvert appealed the revocation of his building permit to the ZBA, and the ZBA reversed the revocation. The appeal to the Supremes followed.
The Supremes held that the revocation of the building permit, on these facts, was valid.
"Boisvert’s reliance upon the town’s representations [as to the timetable he had to follow to keep his site plan approval] was not reasonable. … Although [the code enforcement officer and planning board member] informed Boisvert … that the permit would be valid so long as construction began within six months following issuance of the permit…, Boisvert … should have been aware that those representations were incorrect."
Why? According to the Supremes, because Boisvert should have been on notice of and followed the one year "active and substantial development" rule of 674:39, instead of the specific directions of the code enforcement officer.
The Supremes’ analysis was pinned to the doctrine of "municipal estoppel".
This seems like another example where the Supremes give extraordinary deference to town actions, even when there is a clear and material adverse effect on an individual’s legitimate expectations and property rights.
As for a practical conclusion: don’t rely on what the code enforcement officer says, particularly if there is any variance from a narrow reading of a town-protective statute.
Here’s the case: http://www.courts.state.nh.us/supreme/opinions/2006/thoma073.pdf