Agenda - Planning Commission - 07/18/2013 - Special

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June 10, 2013 I Volume 7 I Issue 11 Zoning Bulletin with a footprint larger than 40,000 square feet due to the limited depth of the commercial zone along Route 101; there was a desire to maintain the "rural character" of the area and to avoid "massing," or visual takeover of the area; and RMD's 17-acre parcel on Route 114 was a "unique piece" of commercially zoned land surrounded by industrial properties. Hannaford had objected to RMD's variance application. After the ZBA granted the variance, Hannaford sought a rehearing. The ZBA denied the rehearing request, finding that Hannaford was not a "person directly af- fected" by its decision and, thus, lacked standing (i.e., the legal right) to move for rehearing. _ Hannaford appealed. DECISION: Affirmed. The Supreme Court of New Hampshire also concluded that Hannaford lacked standing to challenge the ZBA's grant of a variance to RMD. In so concluding, the court noted that, under New Hampshire statutory law, RSA 677:4, "[a]ny person aggrieved" by an order of a zoning board of adjustment may petition the superior court for review. In other words, if Hannaford was found to be a "person aggrieved," it would have standing to challenge the ZBA's grant of the variance to RMD. The court explained that a " `person aggrieved' includes any party entitled to request a rehearing under RSA 677:2." Under RSA 677:2, a person entitled to apply for rehearing includes: "any party to the action or proceedings, or any person directly affected thereby." Here, Hannaford was not a "party to the action"; thus, the court considered whether Han- naford was a "person directly affected" by the ZBA's decision. The court looked to whether Hannaford had "some direct, definite interest in the outcome of the [decision to grant the variance]." The court further explained that whether Hannaford had an interest that was "sufficient to confer standing" required an analysis of the following factors: (1) the proximity of Hannaford's property to RMD's site; (2) the type of change proposed; (3) the immediacy of the injury claimed; (4) Hannaford's participation in the administrative hearings; and (5) "any other relevant factors" bearing on whether Hannaford had a direct, definite interest in the variance request. Here, the court found that: (1) because Hannaford's supermarket was located 3.8 miles away from RMD's development site, it lacked proxim- ity; (2) the type of change proposed by RMD was substantial; (3) Han- naford failed to allege any concrete injury to its particular property; (4) Hannaford did actively participate in the ZBA's hearing; and (5) Han- naford failed to show how the ZBA's decision had directly and specifically affected its own rights. In regard to the third factor, Hannaford had argued that ZBA's compari- son of Hannaford's location in the district to RMD's proposed location established sufficient injury to confer standing. The court rejected this argument. The court pointed out that the ZBA's comparison of the two 6 © 2013 Thomson Reuters