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CBDA Development, LLC v. Town of Thornton

Supreme Court of New Hampshire

April 7, 2016

CBDA Development, LLC
v.
Town of Thornton

         Argued September 16, 2015

          Grafton.

          Cronin, Bisson & Zalinsky, P.C., of Manchester ( John G. Cronin and Daniel D. Muller, Jr. on the brief, and Mr. Cronin orally), for the plaintiff.

          Drummond Woodsum, of Manchester ( Matthew R. Serge on the brief and orally), for the defendant.

         BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.

          OPINION

Page 1108

          Bassett, J.

          The plaintiff, CBDA Development, LLC (CBDA), appeals an order of the Superior Court ( MacLeod, J.) affirming a decision of the Planning Board (Board) of the defendant, Town of Thornton (Town), not to consider CBDA's second site plan application for a proposed recreational campground. Applying the subsequent application doctrine set forth in Fisher v. City of Dover, 120 N.H. 187, 412 A.2d 1024 (1980), the Board decided that it could not consider CBDA's second application because it did not materially differ in nature and degree from CBDA's initial application. CBDA argues that the trial court erred when it: (1) upheld the Board's decision to apply the Fisher doctrine to applications before a planning board; and (2) found that the Board reasonably concluded that CBDA's second application did not materially differ from its first application. We affirm.

          Fisher involved a challenge to a zoning board's grant of a second variance application. Fisher, 120 N.H. at 188-89. In Fisher, the applicant conceded that in its second application it sought a variance that " was substantially the same as the variance previously requested and ultimately denied by the [zoning] board." Id. at 188. We held that unless " a material change of circumstances affecting the merits of the application" has occurred or the application is " for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition." Id. at 190. Otherwise, we explained,

Page 1109

" there would be no finality to proceedings before the board of adjustment, the integrity of the zoning plan would be threatened, and an undue burden would be placed on property owners seeking to uphold the zoning plan." Id. at 188. Thus, we concluded that the zoning board erred as a matter of law when it reviewed and approved the subsequent application " without first finding either that a material change of circumstances affecting the merits of the application had occurred or that the second application was for a use that materially differed in nature and degree from the use previously applied for and denied by the board." Id. at 191. We have never held that Fisher applies to successive site plan applications before a planning board.

         The pertinent facts are as follows. In 2012, CBDA submitted a site plan application to the Board to develop a parcel of land in the Town. The application proposed a campground with approximately 250 campsites, each of which would house a " park model" recreational vehicle with two parking spaces. As described by the Board, the proposed park models were " basically ... mobile home[s]" that were " meant to be permanent." (Quotations omitted.) CBDA would sell the park models to campers with one-year leases for each campsite, renewable for up to 60 years. The park models required professional removal and could remain on the campsites year-round; nonetheless, the campground would be closed to visitors for several months during the winter and spring. The campground would not accommodate campers who did not own park models.

         The Board held several public hearings on the application, during which it expressed concerns about the apparently permanent nature of the proposed campground as evidenced by the mandatory use of park models on each site, the long-term lease agreements, the year-round storage of park models on campsites, and the need for professional removal of the park models. The Board ultimately denied CBDA's application, noting that " the two basic reasons" for the denial were that the campground was " not ... open to the general public" and that " the initial application presented park model units with a greater amount of permanency than what is intended in the Thornton Campground Regulations and State statutes." In particular, the Board focused upon the permanence and lack of easy portability of the park model structures, noting that, because the park models required professional removal, they were more similar to permanent dwellings than to campsites. It also emphasized its view that a " campground," as defined in the Town regulations and state statutes, must be a facility where visitors can come and go on a temporary basis. (Quotation omitted.) CBDA's subsequent administrative appeals were denied, and we affirmed.

         In 2013, CBDA submitted a second site plan application for the same property. The application proposed a " 267 site campground, with associated access roads, onsite septic systems with site hook-ups, community wells and [a] public water system with site hook-ups." The Board held public hearings, during which, citing the Fisher doctrine, it questioned CBDA about the differences between the two applications. The Board noted that it could not consider the merits of CBDA's second application unless " at a minimum the new application [had] changed in such a way that it addresse[d] the reasons for denial [of] the initial application." CBDA explained that, in response to the concerns raised by the Board during CBDA's initial application process, the second application proposed " more campsites, no requirement for a park model to be on every site, no requirement for the park model to be purchased

Page 1110

on site from the developer, no long[-]term lease agreement," and " smaller [camp]sites for pop-ups and tents." CBDA also stated that the new application was designed to " capture as much of the transient business" from the public as possible, rather than focusing on use by long-term tenants. When asked whether " the recreational vehicles [would] be stationary on site for the season," CBDA responded that the vehicles could be stored on the ...


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