Agenda - Planning Commission - 07/21/2016

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Zoning Bulletin June 10, 2016 I Volume 10 I Issue 11 1380914 (N.H. 2016) NEW HAMPSHIRE (04/07/16)—This case addressed the issue of whether the subsequent application doctrine —which was previously applied to zoning board decisions and prohibits consideration of a second application that does not materially differ in circumstance or use from the first application —also applies to planning board decisions. The Background/Facts: In 2012, CBDA Development, LLC ("CBDA") submitted a site plan application to the Planning Board (the "Board") of the Town of Thornton (the "Town"). CBDA proposed a campground with approximately 250 campsites, each of which would house a "park model" recreational vehicle that would be leased to campers under one-year leases. The Board ultimately denied CBDA's application for "two basic reasons": (1) the campground would not be open to the general public; and (2) the "park model" units would result in a greater amount of permanency than what was intended in the Town's Campground Regulations and State statutes. The Board emphasized that, in its view, 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." CBDA's subsequent administra- tive appeals were denied, and the courts affirmed. In 2013, CBDA submitted a second site plan application for the same property. The application again proposed a campground. CBDA as- serted that the second application was different from the first in that the second application: no longer required a "park model" unit on every site; no longer required long-term lease agreements; allowed for smaller campsites for pop -ups and tents; and was "designed to `capture as much of the transient business' from the public as possible, rather than focusing on long-term tenants." Ultimately, the Board determined that although the second application addressed the issue of public ac- cess 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 applica- tion because the "subsequent application doctrine" applied and the new application did not materially differ in nature and degree from the initial application. Under the subsequent application doctrine, the Supreme Court of New Hampshire had previously 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, [a] board of adjustment may not lawfully reach the merits of the petition." The court had explained that otherwise, "there would be no finality to proceedings before the board of adjust- ment, the integrity of the zoning plan would be threatened, and an undue burden would be placed on property owners seeking to uphold ©2016 Thomson Reuters 3