Reference Library

Court Decisions

• "New Hampshire Court Decisions Affecting Zoning and Land Use Regulations", OSP, June, 1994 [Word file]
• 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
• Superior Court Decisions
  • Carroll County
    • James W. Bennett, Jr. & Donald J. McWhirter v. Town of Brookfield Planning Board 04-E-0037, February 9, 2005
• 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
• Selected Supreme Court Decisions [Supreme Court slip opinions]
  • 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
  • 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 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
  • BONNITA RANCOURT & a. v. CITY OF MANCHESTER Submitted: November 21, 2002 Opinion Issued: January 10, 2003 (relative to the 5 part variance test)
    • Summary of the case by Ben Frost, January 2003
  • HOOKSETT CONSERVATION COMMISSION v. HOOKSETT ZONING BOARD OF ADJUSTMENT, Argued: June 12, 2002, Reargued: January 14, 2003, Opinion Issued: January 23, 2003 (The latest from the supreme court helps to define who a "party" is for the purposes of appeals of ZBA decisions.)
    • Summary of the case by Ben Frost, January 2003
  • SMAGULA v. TOWN OF HOOKSETT, Argued: July 9, 2003, Opinion Issued: August 25, 2003 (In this interesting case, the Supreme Court has clarified some ambiguities surrounding the problems of zoning amendment protest petitions under RSA 675:5.)
    • Plan-link posting by Ben Frost summarizing the case, August 2003
  • 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)
  • 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)
  • 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)
    • "High court bars explosives facility", Concord Monitor, August 4, 2006
    • "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)
  • 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)
  • 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 (failed motion for rehearing [lack of a second] constitutes denial)
    • summary of the case (Ben Frost Plan-link posting 9/22/06)
  • 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)
  • 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

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