2005-207, SIMPSON DEVELOPMENT CORP. v. CITY OF LEBANON

The plaintiff, Simpson Development Corporation (Simpson),

on the brief and orally), for the defendant. Gardner Fulton & Waugh, P.L.L.C., of Lebanon (H. Bernard Waugh, Jr.

brief and orally), for the plaintiff. Errors may be reported by E-mail at the following address: Schuster, Buttrey & Wing, P.A., of Lebanon (Barry C. Schuster on the

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-207 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Grafton Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the planning board’s vote.

p. 2 legality of a planning board’s approval must be brought within thirty days of

were open for further review; and (5) in failing to rule that any challenge to the those administrative conditions, the merits of the planning board’s decision compliance with the conditions imposed. board’s decision was not final; (4) in ruling that pending the city’s completion of based upon evidence submitted by the applicant of satisfactory public hearing, upon certification to the board by its designee or

interim step in the board’s process of consideration.” We disagree.

(Emphasis added.)

board voted to void its conditional approval of the amendment. sited in the designated open space area. As a result, on October 14, 2003, the that because Simpson had not satisfied all of the conditions precedent, the authority to permit the amendment because the additional nine lots would be application, which approval shall become final without further A planning board may grant conditional approval of a plat or evidence or is legally erroneous. RSA 676:4, I(i) (1996) provides in part:

concluded that an approval with conditions under RSA 676:4, I(i) is only an approval.” Specifically, Simpson contends that the trial court “mistakenly June 9, 2003 decision was final for purposes of appeal, it was not a final Simpson argues that the trial court erred in ruling that “although the

Id. final judgment that barred the board’s October 14, 2003 action; (3) in ruling reached the same decision as the trial court based upon the evidence before it. with conditions. The city’s attorney informed the board that it had no N.H. 490, 493 (2001). We look to whether a reasonable person could have

We will uphold the trial court’s decision unless it is not supported by the

was not a final approval; (2) by ruling that the June 9, 2003 decision was not a plan to add nine lots. On June 9, 2003, the board approved the amendment although the board’s June 9, 2003 decision was final for purposes of appeal, it On appeal, Simpson argues that the trial court erred: (1) in ruling that

decision. This appeal followed. 2000). Following a hearing on the merits, the trial court affirmed the board’s Simpson appealed to the superior court pursuant to RSA 677:15 (Supp.

On January 13, 2003, Simpson sought to amend its cluster subdivision

portion of the property. encompassed by the curtilage for the subdivided lots within the developed subdivisions. p. 3 ordinance prohibit development in the designated open space area of cluster amendment. Both New Hampshire land use statutes and the city’s zoning

ordinance sections 502.3(J)(3) and 502.3(J)(5) provide that:

assure that common open spaces always remain undeveloped. board did not have the legal authority to approve Simpson’s proposed plan review by the City Attorney. Adequate provisions shall be made to the common land, shall be approved by the Planning Board after

occurred, this approval shall become to the city’s zoning ordinance, review by the city attorney was required. Zoning “When the Planning Office is notified that Conditions 3, 9 & 10 above have art. v, § 502.3(J). and restrictions that will govern the homeowner’s association. board amended its June 9, 2003 approval to add the following language:” Pursuant

See RSA 674:21-a; see also Lebanon, N.H., Zoning Ordinance #2

board that pursuant to section 502.3(J) and RSA 674:21-a (Supp. 2005), the The city attorney reviewed Simpson’s proposal and advised the planning Homeowners’ Association, and any other method of management of

Lebanon, N.H., Zoning Ordinance #2 art. v, § 502.3(J)(3), (5).

manner which would result in non-compliance with this section. No portion of the common open land shall be conveyed in a approval of the Planning Office any amended declarations of covenants had to be met before the approval would become final. On July 14, 2003, the revoked. Condition ten required Simpson to: “. . . . submit for review and

Regulations.” Chairperson as provided in Sections 6.13, 6.25 and 7.4(f) of the Subdivision All agreements, deed restrictions, organizational provisions for a

nine and ten of the June 9, 2003 approval, are conditions precedent, which conditions precedent were satisfied before the conditional approval was conditions precedent. Three of these conditions, set out in paragraphs three, The conditional approval never became final because not all of the

Action and Subdivision Agreement shall be prepared and signed by the

The June 9, 2003 approval contained conditions subsequent and

precedent set by the June 9, 2003 decision had been satisfied. decision. See RSA 676:4, I(i). The record reveals that not all of the conditions conditional approvals as the planning board did here in its June 9, 2003 New Hampshire law specifically authorizes planning boards to grant condition of the approval.

p. 4 application which is subsequently approved, shall be deemed a

intent to restrict development, submitted with or contained in an recorded. For purposes of this section, an applicant’s statement of instrument conveying such restriction has been executed or

of such restriction, regardless of whether any deed or other

conditional approvals is to avoid requiring that 2003, and voting to void the June 9, 2003 approval. The purpose of allowing the board was not barred from reviewing the decision, as it did on October 14, 4

of any property which would be specially damaged by the violation land, and shall be enforceable by the municipality, or by the owner restriction as defined in RSA 477:45, I, which shall run with the the board’s consideration. public easements, or agriculture. again.

became final. Because the June 9, 2003 conditional approval was not final,

there must be no unfulfilled conditions precedent. Id. established procedure, shall be deemed to create a conservation Id. For a valid, final approval under the statute, under prior law). Conditional approval is only an interim step in the process of common land for the purposes of recreation, conservation, park or Sklar Realty v. Town of Merrimack, 125 N.H. 321, 327 (1984) (decided result in formal disapproval and the wasteful necessity of starting all over areas for vehicular traffic shall be permanently maintained as any impediment to full approval

use under the following requirements: the board in its June 9, 2003 approval was not met, that approval never areas, and enclosed recreational facilities shall be held in common 10 of the June 9, 2003 approval. Thus, because a condition precedent set by As a result, Simpson did not receive the approval required by condition

records of the local land use board in accordance with its variance, or other type of approval, and which has been filed in the by a local land use board as a condition of subdivision, site plan, for individual lots, construction of buildings and roads and other 1. The areas of any such cluster subdivision not used

In a cluster subdivision, open space, outdoor recreational

Section 502.3(J) provides in relevant part:

under innovative land use controls, or which is lawfully imposed

village plan alternate subdivision, or other proposal approved which is part of a cluster development, planned unit development, Any open space designation or other development restriction

RSA 674:21-a provides: p. 5 5

conditions precedent were satisfied.

the approval was conditional and would have become final only if the

conclusion as did the trial court in upholding the board’s determination that

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

upon the record before us, a reasonable person could have come to the same Pembroke, 1 p. 5 52 N.H. 314, 323 (2005). Accordingly, we conclude that, based not reach the merits of Simpson’s remaining arguments. See DHB v. Town of In light of our finding that the board’s approval was conditional, we need