September 16, 2015
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.
J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ.,
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,
" 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.
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.
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.
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
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 ...