CBDA Dev., LLC v. Town of Thornton, 2014–0775

• Decision Date: 07 April 2016
• Docket Number: No. 2014–0775,2014–0775
• Parties: CBDA DEVELOPMENT, LLC v. TOWN OF THORNTON
• Court: New Hampshire Supreme Court

168 N.H. 715
137 A.3d 1107

CBDA DEVELOPMENT, LLC
v.
TOWN OF THORNTON

No. 2014–0775

Supreme Court of New Hampshire.

Argued: September 16, 2015
Opinion Issued: April 7, 2016

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.

168 N.H. 717

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, 412 A.2d 1024. In Fisher , the applicant conceded

168 N.H. 718

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, 412 A.2d 1024. 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, 412 A.2d 1024. Otherwise, we explained,

137 A.3d 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, 412 A.2d 1024. 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, 412 A.2d 1024. 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

168 N.H. 719

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

137 A.3d 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 campsites when unoccupied, and that there would be "no maximum length of stay."

After comparing CBDA's second application with its prior application, the Board decided that, although the second application addressed the issue of public access to the campground, it did not resolve the Board's concern about the permanent nature of the park models on the campsites. The Board unanimously agreed that it could not review CBDA's second application because the new application did not materially differ in nature and degree from the initial application. See Fisher, 120 N.H. at 190, 412 A.2d 1024.

CBDA appealed the Board's decision to the trial court by way of writ of certiorari. See DHB v. Town of Pembroke, 152 N.H. 314, 318, 876 A.2d 206 (2005) (allowing appellate review by writ of certiorari of planning board's decision not to accept an application). CBDA argued that the Board erred when it refused to consider CBDA's second application "under the subsequent application doctrine" because that doctrine "was created in the context of zoning board appeals" and was not applicable to planning board decisions. Alternatively, CBDA argued that, even if the subsequent application doctrine applied to applications before a planning board, the Board acted

168 N.H. 720

unreasonably when it concluded that CBDA's second application did not materially differ from the initial application.

The trial court affirmed the Board's decision to apply the subsequent application doctrine to CBDA's second application, observing that the policy goals of Fisher —the finality of proceedings, upholding the integrity of the zoning plan, and protecting the interests of those who rely upon the zoning plan, see Fisher, 120 N.H. at 190, 412 A.2d 1024 —"are as relevant and critical in the planning board context as they are in zoning board appeals." The trial court also ruled that the Board "reasonably found that [CBDA's] subsequent application was not materially different" from its original application because the subsequent application "did not adequately address [the Board's] explicit concern about the permanency of the campsites in its proposal." This appeal followed.

I

On appeal, CBDA first argues that the subsequent application doctrine does not apply in the planning board context. CBDA argues that the policy rationales underlying our decision in Fisher reflect the particular context of zoning board appeals, and that there are meaningful differences between the zoning and planning contexts. CBDA also argues that, because a planning board is statutorily required to "define through regulation the conditions under which it will accept an application," planning boards can achieve finality in proceedings by adopting regulations that define a "complete application" as one "which satisfies a standard akin to the subsequent application doctrine." Therefore, CBDA argues, the subsequent application doctrine is...