Agenda - Planning Commission - 12/03/1996

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Pag~ 8 November 1996 Z.B. SubdiviSion -- Board denies subdivision application to prevent school' ove .rcrowding Ettlingen Homes Inc. v. Town of Derry, 681A.2d 97 (New HampShire) 1996 ~ttlingen Homes Inc. (developer) wanted to subdivide an 81-acre parcel in Derry, N.H., into 23 residential lots. Each lot eventually would hold a three- bedroom house. T~e town Planning Board held a hearing where discussion revolved around the school district's inability to absorb any new studefits the development would bring with it. One board member said, "[W]e cannot afford to put one more childlin that school ... who isn't already living in this town ... There's basically not a Whole lot wrong with th.at plan... It's just simply we can't afford to handle the s0rvices that go along with allowing it to get built right now." The board found the subdivision was "premature" and denied it, relying on both town subdivision regulations and a state statute. The statute gave planning boards authority to include in their regulations provisions "against such scat- tered !or premature subdivision of land as would involve danger or injury to health, safety, or prosperity by reason of the lack of water supply, drainage, transportation, schools.., or other public services." The town regulations were essentially the same, allowing the board to deny "premature" subdivisions for ..,,...,, o,~..,. the same reasons outlined in the statute. ¢:::: :.. The developer asked a court to review the board's decision. It claimed the decision constituted illegal growth control bocause the subdivision wasn't "scat- tered Or premature." The court upheld the board's decision, pointing to the statute, which spe- cifically allowed schools as a consideration in subdivision applications. It said · the ad~titional 23 homes would put at risk the district's ability to provide ad- equat~ public education. Since the subdivision would thus endanger the well- being Of the town's population, the board could find it was premature. The developer appealed. DECISION: Reversed and returned to the lower court. Th~ board's denial of the subdivision was illegal growth control that ex- ceeded' its authority under the state statute. The subdivision clearly was denied in an effort to control growth. If the board Wanted to control growth, it had to adopt formal growth-control regula- tions, such as a comprehensive plan. Board members, in fact, indicated at the hearing that they needed more formal regulations. Although the adequacy of school facilities was a legitimate town concern, the potentially overtaxed school system did not constitutea "danger ... to health, safety, or prosperity by reason of the lack of ... schools." Since the board's reason~ for denying the subdivision did not fall under the statute's "scattered and premature" provision, the denial exceeded the board's authority. Zulcis v. Town of Fitzwilliam, 604 A.2d 956 (1992). ~.l (Tar, inav v. Town of I-[anover. 351 A.2d t~d