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Limited Editions Properties, Inc. v. Town of Hebron

Supreme Court of New Hampshire

June 30, 2008

Limited Editions Properties, Inc.
v.
Town of Hebron

UNPUBLISHED OPINION

The respondent, the Town of Hebron, appeals an order of the trial court reversing the Hebron Planning Board's (board) decision to require the petitioner, Limited Editions Properties, Inc. (Limited Editions), to submit a new residential subdivision application. We affirm.

Site plan review is designed to insure that uses permitted by a zoning ordinance are constructed on a site without causing drainage, traffic or lighting problems. Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 78 (2004). RSA 677:15 governs appeals from decisions of a planning board; the statute places the burden of proof on the party seeking to set aside the decision of the planning board to show that the decision is unlawful or unreasonable. Bayson Properties v. City of Lebanon, 150 N.H. 167, 169 (2003). The appealing party must demonstrate that an error of law was committed or must persuade the trial court by the balance of probabilities that the board's decision was unreasonable. Id.

In 2005, Limited Editions submitted an application for subdivision approval and an application for site plan approval; the application included a request for a waiver to a road curve radius requirement. At a September hearing, Limited Editions' lawyer explained that the proposed twenty-one condominium proposal would evolve through the planning process. Later at that same hearing, the board chairman was asked whether Limited Editions would be required to begin the process again if the request for waiver were denied and responded in the negative, explaining that Limited Editions would only need to reengineer the road. The request for waiver was denied at an October board meeting. Limited Editions then presented a revised plan that did not require a waiver to the road curve radius requirement. The board then voted that the revised plan was materially different from the original concept and should not be allowed to go forward.

In reviewing the board's finding, the trial court noted that "the Town cannot discontinue review of a plan that has been revised in response to the planning board's own objections, as well as those of the abutters, under the guise of 'abandonment' of the original plan." We agree. Contrary to the assertion of the town, the issues in this case are not analogous to those in Fisher v. City of Dover, 120 N.H. 187 (1980), which addressed whether a zoning board of adjustment could grant a variance on an application that was substantially the same as a variance that had been denied three years earlier. Id. at 188. Rather, in this case, the process of approval was ongoing and, notably, the board's chairman had stated that a new application would not be required if the waiver request were denied.

Affirmed.

DUGGAN, GALWAY and HICKS, JJ., ...


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