In 2015, Chichester Commons proposed to build a 24-unit elderly housing facility on approximately two acres and requested a waiver of the density requirement, which the planning board approved. After proposing a different project in 2018, in 2020, Chester Commons again proposed a 24-unit elderly housing facility and requested another density waiver request, which the planning board denied. The Housing Appeals Board affirmed the planning board’s denial.
In this appeal, the New Hampshire Supreme Court first rejected Chichester Commons’ argument that “the 2015 waiver did not expire” and that it “continues to apply” to the proposed 24-unit elderly housing facility. Looking at the text of the zoning ordinance concerning waiver requirements, the Court noted that it refers to “the proposed project” and concluded that the 2015 waiver applies only to the 2015 proposed project. The Court further concluded that the 2020 proposed project, although similar, was not the same project that Chichester Commons proposed in 2015, noting, among other things, that the 2020 application contemplated a different project footprint and different building configuration. The Court added that “when evaluating a waiver, the board is required to assess the current impact of the development on the community. The board’s role is not to compare the quality of two different proposals submitted at different points in time or to determine the degree of change to the surrounding community since the last proposal was submitted. Because the petitioner’s current proposal is not the same as its 2015 proposal, the Town’s ordinance required that the board consider the potential impact of the current proposal on the Town in light of any change in circumstances since the 2015 waiver was granted.”
The Court then rejected Chichester Commons’ argument that stare decisis compelled the planning board to grant its 2020 request for another density waiver. The Court explained that because the proposal for the 24-unit elderly housing facility was not “the proposed project” that the planning board considered in 2015, the planning board was required to consider Chichester Commons’ 2020 waiver request on its own merits. In support of its conclusion, the Court cited a 1961 Pennsylvania Supreme Court case and a 1960 Virginia Supreme Court case, both involving variances, as well as 8 Eugene McQuillin, The Law of Municipal Corporations § 25:232, at 1177-78 (3d ed. 2020) (“In general, precedents are not binding relative to the grant of exceptions or variances; each case is to be determined on its own merits.”).
The Court further rejected Chichester Commons’ argument that the planning board was required “to articulate [a] rational explanation for reaching a different result” with respect to its 2020 waiver request, explaining that RSA 676:3, I only required the planning board to provide written reasons for its decision.
The Court also rejected Chichester Commons’ argument that the subsequent-application doctrine applies in this case. The Court stated that the subsequent-application doctrine, articulated in Fisher v. City of Dover, 120 N.H. 187 (1980), does not compel boards to grant successive waivers of zoning requirements. The Court explained: “Assuming, without deciding, that the doctrine applies to waivers — as opposed to variances — we have never held that the doctrine applies when the board has previously granted an application. Rather, the doctrine prevents boards from considering the merits of applications that they have previously denied absent a finding of a material change in circumstances or a material difference in nature and degree between the second application and the prior one.”
Thus, the New Hampshire Supreme Court affirmed the Housing Appeals Board’s decision affirming the planning board’s denial of the waiver request.
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