Reference Library

General Information/Legal Updates

• "New Hampshire Court Decisions Affecting Zoning and Land Use Regulations", OSP, June, 1994 [Word file]
• New Hampshire Supreme Court Land Use Cases compiled by Atty. Peter J. Loughlin for the 2006 OEP Spring Conference, Track II - Basics for the Zoning Board of Adjustment, Session A - Getting Organized
• Legislative/Legal Updates
  • Legislative/Legal Update from the OSP Spring Planning & Zoning Conference, April 20, 2002, by Ben Frost
  • Legal Update from the OSP Spring Planning & Zoning Conference, April 12, 2003, by Tim Bates
  • Legal Update from the OEP Spring Planning & Zoning Conference, May 8, 2004, by Tim Bates
  • Legal Update from the OEP Spring Planning & Zoning Conference, April 9, 2005, by Tim Bates
  • 2007 Land Use Law Update from the OEP Spring Planning & Zoning Conference, April 28, 2007, by Tim Bates
  • A New Hampshire Planner’s Review of Recent Court Decisions and Legislation from the OEP Spring Planning & Zoning Conference, April 26, 2008, by Ben Frost, Esq.
  • A New Hampshire Planner’s Review of Recent Court Decisions and Legislation from the OEP Spring Planning & Zoning Conference, May 2, 2009, by Ben Frost, Esq.
  • A New Hampshire Planner’s Review of Recent Legislation and Court Decisions from the OEP Fall Planning & Zoning Conference, October 17, 2009, by Ben Frost, Esq.
  • New Hampshire 2009-10 Land Use Law in Review - Cases and Statutes from the OEP Spring Planning & Zoning Conference, May 8, 2010, by Ben Frost, Esq.
  • New Hampshire 2010 Land Use Law in Review - Statutes and Cases from the OEP Fall Planning & Zoning Conference, November 13, 2010, by Ben Frost, Esq.
  • New Hampshire 2010-2011 Land Use Law in Review - Statutes and Cases from the OEP Spring Planning & Zoning Conference, June 11, 2011, by Ben Frost, Esq.
  • Land Use Law Update
    NHMA law lecture #3, Fall 2011
    Every three or four years it's time to put recent developments in land use law in perspective. This lecture provides the latest information on legislation affecting the roles, powers and procedures of land use boards and officials and the important decisions of the courts, including the 2011 legislation on residential sprinklers, lot mergers, shoreland protection and more.
    • Part One: New Hampshire Statutes
      Attorney Benjamin D. Frost, New Hampshire Housing Finance Authority
    • Part Two: New Hampshire Supreme Court Cases
      Attorney Christopher L. Boldt, Donahue, Tucker & Ciandella, PLLC

Superior Court Decisions

• Carroll County
  • James W. Bennett, Jr. & Donald J. McWhirter v. Town of Brookfield Planning Board 04-E-0037, February 9, 2005

Selected Supreme Court Decisions [also see the NH Supreme Court slip opinions]

1991 | 1995 | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | 2009 | 2010 | 2011 | 2012 | 2013

1991

WAYNE BRITTON & a. v. TOWN OF CHESTER , July 24, 1991

• "The Chester Court Case" , by Jim Rollins, State Planning News, August/September 1991
• "AFFORDABLE HOUSING: NH Supreme Court Issues Its First ‘Exclusionary Zoning’ Decision" , H. Bernard Waugh, Jr., Staff Attorney, NH Municipal Association, August 1991

1995

• THOMAS P. QUIRK d/b/a FRIENDLY BEAVER CAMPGROUND v. TOWN OF NEW BOSTON 140 N.H. 124; 663 A.2d 1328; 1995 N.H. LEXIS 116 No. 94-100, August 14, 1995

2000

• EDWIN AND STEPHANIE SIMONSEN v. TOWN OF DERRY, November 15, 2000
  • Excerpt (PDF ) from LGC Law Lecture #1, Fall 2005: "Off-site Exactions and Impact Fees: Balancing Municipal Interests and Private Property Rights" outlining the history leading up to Simonsen and the resulting 2004 legislation amending RSA 674:21.

2001

• SIMPLEX TECHNOLOGIES, INC. v. TOWN OF NEWINGTON & a. January 29, 2001

  • Court Establishes New Definition for Variance Hardship By Susan Slack, NHMA Legal Services Counsel - 2001
  • Variance Standard Changes in Simplex By Ben Frost, Esq. - 2001
• THOMAS MORGENSTERN v. TOWN OF RYE Argued: September 19, 2001, Opinion Issued: April 15, 2002 (vesting of nonconforming lots)

  • Seacoastonline news article
  • Summary of the case by Ben Frost, April 2001

2002

• NEW HAMPSHIRE DEPARTMENT OF RESOURCES AND ECONOMIC DEVELOPMENT v. E. MILTON DOW and E. MILTON DOW d/b/a DOW SAND AND GRAVEL Argued: March 7, 2002, Opinion Issued: July 17, 2002
  • Summary of the case, by Ben Frost
• HEARTZ V. CONCORD Argued: June 5, 2002 Opinion Issued: September 17, 2002
  • Summary of the case by Ben Frost, September 2002
• GREGORY RALLIS v. TOWN OF HAMPTON PLANNING BOARD Opinion Issued: February 7, 2001
  • Plan-link question about amendments to regulations and submission of applications with a response and summary of the case by Ben Frost, October 2002
• WILLIAM TIDD v. TOWN OF ALTON Argued: January 3, 2002 Opinion Issued: October 11, 2002
  • Summary of the case by Ben Frost, October 2002
• AWL POWER, INC. v. CITY OF ROCHESTER Argued: October 17, 2002 Opinion Issued: December 9, 2002
  (relative to "substantial completion" of projects and RSA 674:39)
  • Summary of the case by Ben Frost, December 2002
• HENRY TORROMEO & MDR CORPORATION v. FREMONT Argued: July 11, 2002 Opinion Issued: December 13, 2002
  (relative to growth management and the adoption of a CIP)
  • Summary of the case by Ben Frost, December 2002
• MONAHAN-FORTIN PROPERTIES v. HUDSON Argued: October 17, 2002 Opinion Issued: December 24, 2002
  (relative to properties being subjected to both a growth management ordinance and an impact fee ordinance)
  • Summary of the case by Ben Frost, December 2002
• R.J. MOREAU COMPANIES, INC. v. LITCHFIELD Argued: November 13, 2002 Opinion Issued: December 24, 2002
  (relative to changes to an impact fee assesment schedule)
  • Summary of the case by Ben Frost, December 2002

2004

• MAUREEN BACON v. TOWN OF ENFIELD Argued: June 12, 2003, Opinion issued: January 30, 2004
  (This is a deliciously complex opinion that addresses (though does not necessarily clarify) some of the aspects of hardship delineated three years ago in Simplex v. Newington.)
  • Confusion Over the Application of the Simplex Unnecessary Hardship Standard, from "Court Update", by Gary H. Bernier, Esquire, New Hampshire Town and City, March 2004, New Hampshire Municipal Association
  • Plan-link posting by Ben Frost summarizing the case, February 3, 2004
    • reply by Neil Faiman, Chairperson, Wilton ZBA, February 3, 2004
    • and a final reply by Ben Frost, February 10, 2004
• ERNEST M. CHERRY, JR. & A. v. TOWN OF HAMPTON FALLS & A., Argued: October 9, 2003, Reargued: March 10, 2004, Opinion Issued: April 16, 2004
  (Planning boards and applicants must work together - it is a two-way street. Municipalities may adopt more restrictive wetlands rules because the statute specifically states that DES rules shall serve as a minimum.)
  • Plan-link posting by Ben Frost summarizing the case, April 19, 2004
• TOWN OF LYNDEBOROUGH v. BOISVERT PROPERTIES, LLC & a. Argued: February 11, 2004, Opinion Issued: April 21, 2004
  (Municipalities are NOT preempted by state law from regulating OHRV/ATV [Off-Highway Recreational Vehicle/All Terrain Vehicle] use on private property.)
  • Plan-link posting by Ben Frost summarizing the case, April 21, 2004
• THOMAS IRELAND v. TOWN OF CANDIA, Argued: March 11, 2004, Opinion Issued: May 17, 2004
  (Timelyness of filing a Motion for Rehearing.)
  • Plan-link posting by Ben Frost summarizing the case, May 17, 2004
• Summa Humma Enterprises, LLC d/b/a MB Tractor v. Town of Tilton & a. Argued: March 11, 2004, Opinion Issued: May 24, 2004
  (Authority of the planning board in conducting site plan review.)
  • Plan-link posting by Ben Frost summarizing the case, May 24, 2004
• Michael Boccia & a. v. City of Portsmouth & a. Argued: March 11, 2004 Opinion Issued: May 25, 2004
  (Use and area variances)
  • Plan-link posting by Ben Frost summarizing the case, May 25, 2004
• Russell Shopland & a. v. Town of Enfield Argued: October 8, 2003 Opinion Issued: July 15, 2004
  • Supreme Court Applies Boccia Standard for Establishing Unnecessary Hardship Factor as Part of Obtaining an Area Variance (LGC summary)

2005

• Leonard Vigeant v. Town of Hudson Argued: September 23, 2004 Opinion Issued: February 23, 2005
  (Use and area variances)
  • Plan-link posting by Ben Frost, March 9, 2005
  • Court Interprets Area Variance Standard, Susan Slack, NHMA Legal Services Counsel, Arpil 2005
• John R. Harrington & a v. Town of Warner Argued: December 9, 2004 Opinion Issued: April 4, 2005
  (Use and area variances)
  • Purpose of Zoning Regulation Key to Distinguishing Use and Area Variances (LGC summary)
• DHB, Inc. v. Town of Pembroke, No. 2004-397, June 14, 2005
  • No Right to Be Heard on Completeness of Subdivision Application (LGC summary)
• FRANK CAPARCO & a. v. TOWN OF DANVILLE, NORMA DROWNE & a. v. TOWN OF SANDOWN Argued: June 22, 2005 Opinion Issued: November 15, 2005
  (Impact fees can be adjusted.)
  • Court Upholds Planning Board’s Ability to Set and Adjust Impact Fees (LGC summary)

2006

• STANLEY COLLA & a. v. TOWN OF HANOVER
  Submitted: November 16, 2005 Opinion Issued: January 27, 2006
  (Adequacy of motion for rehearing.)
  • Rehearing Motion Satisfies Statute’s Requirement (LGC summary)
• Chester Rod and Gun Club, INC. v. Town of Chester Argued: May 10, 2005 Opinion Issued: September 2, 2005
  • Court Defines "Public Interest"
• Boulders at Strafford, LLC v. Town of Strafford Strafford No. 2005-140, June 13, 2006
  • Jim Dannis Plan-link posting 6/13/06
  • Ben Frost Plan-link posting 6/14/06
  • Court Clarifies Rational Basis Test Applied to Validity of Municipal Ordinances (LGC summary)
• 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
  • Property Owner’s Reliance on Municipal Officials’ Mistake Not Reasonable (LGC summary)
• ROBERT L. GARRISON & a. v. TOWN OF HENNIKER
  Argued: March 9, 2006 Opinion Issued: August 2, 2006
  (Unnecessary hardship, expert testimony, sufficiency of evidence of the uniqueness of the property.)
  • "Just What is ‘Unique’: The NH Supreme Court’s Most Recent Variance Decision" by Christopher L. Boldt, Esq., Donahue, Tucker, & Ciandella, PLLC
  • Further Clarification of the Test for a Use Variance (LGC summary)
• ARNOLD GOLDSTEIN v. TOWN OF BEDFORD & a.
  Argued: May 10, 2006 Opinion Issued: November 22, 2006
  (Standing, person aggrieved)
  • Summary of the case from the 2007 OEP Spring Conference, legal update materials by Atty. Tim Bates
• MICHELLE J. ROBINSON v. TOWN OF HUDSON
  Argued: September 13, 2006 Opinion Issued: December 20, 2006
  (ZBA can impose variance conditions.)
  • Court Upholds Variance Conditions (LGC summary)

2007

• MALACHY GLEN ASSOCIATES, INC. v. TOWN OF CHICHESTER
  Argued: January 5, 2007 Opinion Issued: March 20, 2007
  (Area variance, variance request cannot be used as a reason to deny the variance, substantial justice.)
  • summary of the case from New Hampshire Town and City, May 2007
• COMMUNITY RESOURCES FOR JUSTICE, INC. v. CITY OF MANCHESTER
  Argued: November 14, 2006 Opinion Issued: January 24, 2007
• PHILIP AUGER & a. v. TOWN OF STRAFFORD & a.
  Argued: May 10, 2007 Opinion Issued: August 23, 2007
  (Waivers must meet the standards on the subdivision regulations, meeting attendance consistency.)
  • summary of the case (Ben Frost Plan-link posting 12/31/07)
• 74 COX STREET, LLC & a. v. CITY OF NASHUA & a.
  Argued: June 7, 2007 Opinion Issued: September 21, 2007
  (Land use boards can reconsider their own decisions, failed motion for rehearing [lack of a second] constitutes denial.)
  • summary of the case (Ben Frost Plan-link posting 9/22/07)
  • supplement to the NHMA Law Lecture #3, Fall 2007, "Legal Issues for Land Use Board Members"
• Carlson's Chrysler v. City of Concord
  Argued: April 3, 2007 Opinion Issued: November 8, 2007
  (Electronic signs, commercial speach.)
  • summary of the case (Ben Frost Plan-link posting 11/9/07)
  • companion article about the First Circuit Federal Court of Appeals case Naser Jewelers, Inc. v. City of Concord by Ben Frost for the NHPA and NNECAPA newsletters

2008

• PRESTON T. KELSEY, II & a. v. TOWN OF HANOVER [Argued: May 21, 2008
  Opinion Issued: August 20, 2008] 157 N.H. 632
  (no constitutional duty to take initiative to educate abutters about project and permit/appeal process.)
  • Zoning Administrator Did Not Violate Constitutional Duty to Assist Opponents of Project with Their ZBA Appeal Process (LGC Summary)
• William Schroeder & a. v. Town of Windham & a.
  Argued: November 19, 2008 Opinion Issued: December 18, 2008
  • The Difference Between Wetlands Overlay District and Wetlands Setback (LGC summary)

2009

• Dovaro 12 Atlantic, LLC v. Town of Hampton
  Argued: November 19, 2008 Opinion Issued: January 9, 2009
  (This opinion provides further refinement to the law of nonconforming uses and illustrates the importance of presenting relevant facts in a land use case at the earliest possible time.)
  • Nonconforming Uses and the Importance of the Record in Land Use Cases (LGC summary)
• CONTINENTAL PAVING, INC. & a. v. TOWN OF LITCHFIELD
  Argued: February 18, 2009 Opinion Issued: April 9, 2009
  (Special exception, validity of expert testimony, ZBA members personal knowledge.)
  • Applicant’s Expert Opinions Outweigh Audubon Fact Sheet (LGC summary)

2010

• PIKE INDUSTRIES, INC. & a. v. BRIAN WOODWARD & a. Argued: January 13, 2010 Opinion Issued: May 7, 2010
  • Subjective intent of landowner not relevant when zoning ordinance defines abandonment of a nonconforming use as discontinuance for more than a year. No abandonment when a business owner keeps its plant ready to produce and deliver a product, even if such products are not actually produced. (LGC summary)
• WILLIAM BATCHELDER & a. v. TOWN OF PLYMOUTH ZONING BOARD OF ADJUSTMENT Argued: January 20, 2010 Opinion Issued: May 7, 2010
  • When a term is not defined in a zoning ordinance, the plain language of the ordinance and common definition of the term will be used to interpret its meaning. (LGC summary)
• Hill-Grant Living Trust v. Kearsarge Lighting Precinct Argued: September 24, 2009 Opinion Issued: December 16, 2009
  • A zoning regulation cannot result in an unconstitutional taking of property until the landowner exhausts all opportunities to receive a variance from the regulation. (LGC summary)
• JUDY ATWATER & a. v. TOWN OF PLAINFIELD Argued: January 20, 2010 Opinion Issued: July 20, 2010
  • Appeal Period from Planning Board to ZBA Begins to Run at Conditional Approval (LGC summary)
• City of Portsmouth v. James Boyle, Trustee, 150 Greenleaf Avenue Realty Trust Argued: April 8, 2010 Opinion Issued: July 20, 2010, No. 2009-544
  • Municipalities Must Pay Defendant's Costs for Unsuccessful Zoning Enforcement Action (LGC summary)
• JANET AND PETER SAUNDERS v. TOWN OF KINGSTON Argued: January 13, 2010 Opinion Issued: July 23, 2010
  • Appeal Period to ZBA Begins at Conditional Approval; "Law of the Case" (LGC summary)

2011

• Golf Course Investors of NH, LLC v. Jaffrey Argued: November 10, 2010
  Opinion Issued: April 12, 2011
  (standing, aggrieved parties)
  • Determining whether non-abutter has standing to appeal administrative decision to the ZBA (LGC summary)
• 1808 CORPORATION v. TOWN OF NEW IPSWICH Argued: February 16, 2011
  Opinion Issued: April 26, 2011
  • Doctrine of expansion of nonconforming use not applicable to use by special exception (LGC summary)
• Limited Editions Properties, Inc. v. Town of Hebron Argued: June 16, 2011 Opinion Issued: September 22, 2011 No. 2010-586
  (PB procedures, preliminary approval)
  • Developer not entitled to preliminary subdivision approval before pursuing state and federal permits (LGC summary)
    The petitioner applied to the Hebron Planning Board (Board) for approval to develop a 20-lot subdivision on a lot which was large, but contained steep slopes. The proposed access road would be 2,600 feet in length, with a 10 percent grade for about 1,600 to 1,700 feet, and would have a "switch back" with a 150-foot curve radius. Construction of the road would include creating three substantial retaining walls, topped with a six-foot metal fence. The petitioner requested that the Board grant preliminary conditional approval of the plan's "overall concept" before the petitioner sought required state and federal permits.
• Harborside Associates, L.P. v Parade Residence Hotel Argued: June 9, 2011 Opinion Issued: September 22, 2011
  • Summary of the case by Tim Corwin, Esq. from the NHPA Fall 2011 newsletter
• Brandt Development Company of NH, LLC v. City of Somersworth Argued: June 9, 2011 Opinion Issued: October 12, 2011 No. 2010-641
  • A change in the legal criteria to obtain a variance is a ‘material change of circumstances’ (LGC summary)
    It is well settled that a zoning board, having rejected one variance application, may not review subsequent applications for the same project absent a material change of circumstances affecting the merits of the application. This rule was set forth in the 1980 case of Fisher v. Dover, 120 N.H. 187. The rule exists because zoning boards should not be required to reconsider an application based on the occurrence of an inconsequential change, when the board inevitably will reject the application for the same reasons as the initial denial. In New Hampshire, successive variance proposals must demonstrate either (1) material changes in the proposed use of the land or (2) material changes in the circumstances affecting the merits of the application. This case involves the second factor — material changes in circumstances.

2012

• Harborside Associates, L.P. v. Portsmouth Argued: February 15, 2012 Opinion Issued: March 23, 2012, No. 2011-236
  (site plan review, vested rights)
  • Amendment to site plan negates vested rights (LGC summary)

2013

• STEPHEN BARTLETT & a. v. CITY OF MANCHESTER Argued: January 10, 2013 Opinion Issued: February 25, 2013
  (determining if a project needs a variance or if it is a lawful accessory use, develop a full and clear record)
  • Applicant for a Variance Need Not Affirmatively Plead the Threshold Question of Whether Variance Is Necessary; Trial Court Must Consider It when Ruling on Variance Issues (LGC summary)
• STEVE TREFETHEN & a. v. TOWN OF DERRY Submitted: February 7, 2013 Opinion Issued: April 12, 2013
  (timeliness of an appeal when the last day to file falls on a weekend or holiday)
  • summary of the case (April 15, 2013 Plan-link posting)
• TOWN OF BARTLETT BOARD OF SELECTMEN v. TOWN OF BARTLETT ZONING BOARD OF ADJUSTMENT Argued: February 13, 2013 Opinion Issued: April 12, 2013
  (define words carefully; what issues can be properly raisd on appeal to the court)
  • summary of the case (April 16, 2013 Plan-link posting)
• HANNAFORD BROTHERS COMPANY v. TOWN OF BEDFORD & a. Argued: January 10, 2013 Opinion Issued: April 25, 2013
  (evaluating the four factors to determine standing: (1) the proximity of
  the challenging party’s property to the subject site; (2) the type of change
  proposed; (3) the immediacy of the injury claimed; and (4) the challenging party’s
  participation in the administrative hearings and whether the appealing party has a direct, definite interest in the outcome of the proceeding.)

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