In an opinion handed down July 21, 2022, the New Hampshire Supreme Court (the
“Court) clarified its position on the standard for which a planning board decision will be
considered final, and thus triggering the appellate review process.
In Stergiou v. City of Dover (Case No. 2021-0139), the Court reviewed an appeal of a
trial court order denying Defendant Micheline Elias and The Fakhourys, LLC’s (collectively, the
“Developer’) motion to dismiss a petition filed by Petitioners George Stergiou, et al,
(collectively, the “Petitioner”) concerning a challenge to the Developer’s conditional mixed-use
development approval by the Planning Board of the City of Dover (the “Board”).
The underlying facts of the present case began in January 2019, when the Developer
submitted a site plan proposal to the Board for permission to construct the mixed-use
development in Dover. After a public hearing on the matter, the Board conditionally approved
the site plan, subject to certain procedural requirements for the Developer to comply with.
However, due to unforeseen circumstances, the Developer was unable to meet the stipulations
within the noted timeframe, and in July 2020, the Developer asked the Board “reapprove” the
project, which the Board voted to do so at its July 28, 2020, meeting. Soon thereafter, the
Petitioner appealed the development approval to the superior court of jurisdiction. The
Developer filed a motion to dismiss that complaint, arguing that the Petitioner failed to timely
file his appeal based on the 30-day statutory appeal timeline because the appealable decision on
the matter was actually rendered in January 2019, not July 2020. The trial court denied the
motion to dismiss, and the Developer appealed that decision to the New Hampshire Supreme
The crux of the Court’s analysis on appeal rested on the interpretation of whether the
Board’s 2019 decision regarding the Developer’s site plan was final and appealable or merely an
interim step in the process of the Board’s approval or disapproval. In its opinion, the Court
noted that when a planning board decision contemplates conditional approval then additional
action on the part of the board is needed and such cannot constitute final approval, while a
subsequent conditional requirement, does not delay approval. The Court reasoned that in this
framework, it is the planning board’s intent in imposing such conditions that determines whether
the conditions are precedent or subsequent.
In analyzing the Board’s intent, the Court held that although the 2019 site plan approval
specified certain requirements that had to be met before final approval was given, the conditional
approval was a final, appealable decision because the Board’s meeting minutes confirmed the
approval as the Board’s final decision of the site plan, which was evidenced by the Board
declining to continue the matter to a future hearing.
The Court reversed the superior court’s order denying Developer’s motion to dismiss and
and remanded for an order consistent with its opinion.
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