Agenda - Planning Commission - 08/03/2006

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c Z.B. July 10, 2006-Page 7 ,appeals court stated that the inverse condemnation issue was a subject for a jury to decide. Cases involving an alleged taking of private property by the government were not governed by the Act and required a special statutory proceeding.Pri- vate property could not be taken unless the owner was paid just compensation. Physical taking of the property was not required; regulation of property also could be considered a taking if the regulation acted to destroy or diminish the value of the land. In this case, the question of whether the regulations constituted a taking had to be decided by a jury. The decision of the trial court regarding the inverse condemnation issue was reversed alld returned to the trial court for furtherproceedings. see also: Calhoun v. City of Durant, 970 P2d 608 (1998). r \ Conditional Approval- Heeding city attorney's caution, board voids conditional approval Developer claims approval cannot be voided Citation: Simpson Development Corporation v. City of Lebanon, Supreme Court of New Hampshire, No. 2005-207 (2006) NEW HAMPSHIRE (05/17/06) - Simpson Development Corporation received planning board approval for a 57-lot cluster subdivision in 1999. The approval was conditioned on the creation of open space areas. In 2003, Simpson sought to amend the plan to add nine lots, which would be in the designated open space areas. The planning board approved the amend- ment with conditions. Three of the conditions were considered "conditions precedent," meaning that they had to be met prior to final approval. Before the amendment became final, the city attorney told the board that it had no authority to pennit the amendment because the lots would be in the open space areas. As a result, the board voided its conditional approval of the amendment. Simpson sued, and the court ruled in favor of the city. Simpson appealed, arguing that the board's initial amendment approval was not retractable. DECISION: Affirmed. The purpose in allowing conditional approval was to give parties whose proposals did not fulfill all requirements at the time of application a chance to avoid having to start the process over again; conditional approval was only an interim step in the process of the board's consideration. The approval in this case was conditional and would have. become final only if the conditions precedent were satisfied. For a valid, final approval under local law, there had to be no unfulfilled conditions precedent. Condition 10 required Simpson to submit any amended declarations of cov- enants and restrictions to the city attorney. The city attorney reviewed these and told the planning board that it did not have the legal authority to approve @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more information please call (617) 542-0048. 91