MATTHEW SERGE SUCCESSFULLY DEFENDS THE TOWN OF THORNTON PLANNING BOARD BEFORE THE NEW HAMPSHIRE SUPREME COURT AND ESTABLISHES NEW PRECEDENT
April 7, 2016
Attorney Matthew Serge, a member of Drummond Woodsum's Municipal Group, successfully defended the Town of Thornton Planning Board's decision to decline jurisdiction over a site plan application on the basis that it was too similar to a prior application that had been previously denied, and thus failed to satisfy the standard of Fisher v. City of Dover, 120 N.H. 187, 190 (1980).
The Appellant, CBDA Development, LLC, had applied to the Town of Thornton Planning Board to develop a campground. The Planning Board denied the first application because the project was not a recreational campground as allowed by local regulation or State law since it was going to require campers to use Park Model trailers, which would be stored on the sites under long-term leases up to 60 years. The Appellant returned to the Planning Board with a second site plan application, which incorporated many of the same features as the first. While the Appellant stated that, unlike the first application, it would not require campers to buy and use Park Models at the campground, or require campers to enter into long-term lease agreements, it would not commit to prohibiting campers from using Park Models on most sites, or occupying sites for multiple years. As a result, the Planning Board was not assured that the new proposal addressed the deficiencies that were material to denying the first application and, therefore, would not accept jurisdiction over the application pursuant to the doctrine of Fisher v. City of Dover.
Historically, the Fisher v. Doctrine had been applied only to matters involving a zoning board of adjustment. The New Hampshire Supreme Court agreed, however, with the Planning Board's action and held that the doctrine should apply to planning board decisions. The Court also addressed the merits of the Board's decision and held that the Board properly applied the Fisher doctrine in rejecting the second site plan application. As a result, planning boards in New Hampshire now have the same ability as zoning boards of adjustment to reject duplicative land use applications.