Reference Library

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

Dannis [jsdannis@adelphia.net]

[Plan-link] Thomas v. Town of Hooksett (Issued July 20, 2006)

Hi –

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year after January 23, 2003, and started to build within six months thereafter, his approval was valid and would not be rescinded.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 

Thanks, Jim

Thu 7/20/2006 8:10 PM
BetseyH44@aol.com
Re: [Plan-link] Thomas v. Town of Hooksett (Issued July 20, 2006)

Hi -- Do Hooksett’s Zoning Ordinance, Subdivision Regs, and/or Site Plan Review Regs define "active and substantial development", or is the Supreme Court now (and maybe earlier,in ways I’m not aware of) applying the RSA 674:39 wording even to towns that don’t specifically state how that phrase will be interpreted? Thanks, Betsey Harding, Jackson

Fri 7/21/2006 11:20 AM
Jim Campbell [jcampbell@ci.durham.nh.us]
RE: [Plan-link] Thomas v. Town of Hooksett (Issued July 20, 2006)

Good question Betsey. I believe we are now supposed to define "active and substantial development" in our regulations/ordinance or we can’t apply that term to deny someone under 674:39. Perhaps because this case was before the change in the statute they can apply it. Are there any (and I hate to use the word) "lawyers" out there that can help or confuse the situation?!?!?!? Just kidding Ben but I am serious.

Fri 7/21/2006 11:31 AM
Ben Frost [bfrost@nhhfa.org]
RE: [Plan-link] Thomas v. Town of Hooksett (Issued July 20, 2006)

Jim is right, and that’s why we elected him President of the New Hampshire Planners Association.

Hooksett’s revocation of the building permit happened two weeks before the effective date of the change to RSA 674:39 that requires planning boards to define what is meant by "active and substantial" either by regulation or as a condition of plat or site plan approval. Timing is everything.

Sat 7/22/2006 9:32 AM
Neil Faiman [Neil.planlink2@faiman.org]
Re: [Plan-link] Thomas v. Town of Hooksett (Issued July 20, 2006)

There is one thing in this decision which everyone involved (including the court) seems to have taken for granted, but which doesn’t seem at all obvious to me. That is the assumption that RSA 674:39 is even relevant to the case. For example, the court wrote, "Pursuant to RSA 674:39, Boisvert had one year from the date of the issuance of our opinion in Hooksett Conservation Comm’n to begin "active and substantial" development of the property in order to secure protection from the zoning changes." and "RSA 674:39, I, governs the time period within which a right to construct remains vested after a zoning ordinance is amended to prohibit a proposed project." But that certainly isn’t what RSA 674:39 says on it’s face. What it says is, "Every plat or site plan approved by the planning board and properly recorded in the registry of deeds shall be exempt from all subsequent changes in subdivision regulations, site plan review regulations, and zoning ordinances . . . "

That is, RSA 674:39 specifically says that it protects plans approved by the Planning Board and recorded in the Registry of Deeds. It DOES NOT say that it is a general protection (and limitation) for all vested rights pertaining to land use, however they may arise, including favorable decisions on an appeal to the ZBA or the Supreme Court.

This feels to me like a huge leap. NH case law does not, in general, assume that language in a statute that specifically addresses a particular land use board is applicable in any other context. (For example, consider the case where the court explicitly apply to the "automatic approval" rule for Planning Board applications to Zoning Board cases.)

Am I missing something obvious here? Or did the Supreme Court miss something obvious?

Regards,
Neil Faiman, Wilton ZBA and Planning Board

Wed 8/2/2006 9:50 PM
Ben Frost [bfrost@nhhfa.org]
RE: [Plan-link] Thomas v. Town of Hooksett (Issued July 20, 2006)

Hi Neil,

Granted, there are several layers in this opinion. I think the issue you identify is a bit confused by the court’s treatment of the facts. What they apparently were saying was that the site plan originally approved by the planning board, which was held in abeyance pending the resolution of the litigation, was protected from zoning changes that might have wrought by the town in the interim for one year from the date of the court’s decision. I don’t think that the issues of the ZBA in this case pertain to the court’s application of RSA 674:39, except insofar as the ZBA reviewed the administrative decision of the building inspector to revoke the building permit.

That’s my take, anyway.

Ben

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