New Hampshire Supreme Court Reverses Planning Board Decision – Clarifies Fisher Subsequent Application Doctrine
In November 30, 2022, opinion, the New Hampshire Supreme Court (the “Court”) clarified the longstanding case law established in Fisher v. City of Dover, otherwise known as the Fisher subsequent application doctrine, which relates to the standard by which planning boards or zoning boards of adjustment evaluate subsequent permit applications. 120 N.H. 187 (1980).
The case in controversy relates back to events that occurred in December 2019, when the Town of Amherst (the “Town”) held a public hearing to consider TransFarmations, Inc.’s (“Plaintiff”) application for a conditional use permit for its proposed development of an approximately 130-acre property known as the Jacobson Farm. During this hearing, the Town’s planning board (the “Board”) voted in a 4-2 decision to deny the permit request, with the cited reasons for denial by individual Board members being that no complete traffic study was included Plaintiff’s application. At the end of the hearing, the Board Chairman stated that the applicant could reapply after supplementing additional information.
In July 2020, Plaintiff submitted a revised application which included a complete traffic study of the proposed development site. The public notice for this subsequent hearing contained the explicit qualification that the hearing be limited in scope to only the issue of whether the subsequent application was sufficiently different from the first in order to comply with the Fisher doctrine. The Fisher decision established that zoning boards of adjustment, having rejected one land use application, may not review subsequent applications absent a material change of circumstances affecting the merits of the application. The purpose behind this precedent was to establish finality to planning board proceedings and protect the integrity of the zoning plan. Thereafter, in the case of CBDA Development, LLC, the Court found that the subsequent application doctrine established in Fisher also applied to decisions of planning boards. 168 N.H. at 723.
During the July 2020 public hearing, the Board evaluated Plaintiff’s subsequent application and came to the conclusion that the second application was not sufficiently different from the first, albeit the attachment of the traffic study, and again voted 4-2 to deny the application. Plaintiff appealed the Board’s decision to the trial court, which agreed with the Board, and Plaintiff appealed to the New Hampshire Supreme Court.
In its opinion, the Court explained that post-Fisher cases recognize that “evidence of an invitation to submit a modified application to meet an agency’s concerns…acts as additional evidence that a subsequent application so modified is materially different.” Appeal of Allen, 170 N.H. 754, 762 (2018). The Court reasoned that the Board had invited Plaintiff to resubmit a supplement application with additional information (i.e. a completed traffic study), and Plaintiff did so. The Town attempted to argue that no direct invitation was made for Plaintiff to reapply, however, the Court disagreed, noting that the Board Chair stated affirmatively that Plaintiff could reapply with “more information”. The Court pointed out that the only missing information mentioned by the voting Board members during the first application process was a traffic study, which logically lead to the conclusion that a traffic study was the additional information needed for Plaintiff’s reapplication. The Court concluded that Plaintiff’s second application was materially different from its first by the addition of the traffic study and reversed the trial court decision for proceedings consistent with its opinion.
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