Once and Done: the Fisher v. Dover Rule Applies to Planning Boards as well as ZBAs.

In the recent case of CBDA Development, LLC v. Town of Thornton, (Docket # 2014-0775; Issued April 7, 2016) the NH Supreme Court held that a developer’s minimally amended Site Plan did not have to be considered by the Planning Board which had previously rejected a similar Site Plan as not in compliance with Town Zoning.  The Site Plan in question dealt with over 240 “spaces” for “Park Model RV’s” (envision short “single wide” manufactured housing units) which the developer contended constituted a campground – despite the fact that the Park Models would remain on site subject to one year leases renewable for 60 years.  After the Town ZBA ruled that the Planning Board properly interpreted the Zoning Ordinance that the use in question was not a campground, the developer appealed to the Superior Court and later to the Supreme Court, both of which upheld the ZBA.  Then the developer returned to the Planning Board with a substantially similar Site Plan, which only switched out a few of the Park Model sites for tent sites.  The Planning Board determined that they could not review the second Site Plan because it was not materially different in nature or degree from the initial Site Plan, relying in part on the case of Fisher v. City of Dover, 120 N.H. 187 (1980).  Both the Superior Court and Supreme Court upheld the Planning Board’s decision.

What is interesting is that the Court in CBDA stated for the first time that the Fisher v. Dover Rule applied to Planning Boards.  The Fisher case involved an applicant’s variance application that had initially been denied by the City’s ZBA; but when the same application was submitted several weeks later, the ZBA granted the variance.  When Abutters appealed that decision, the Supreme Court ultimately determined that the later application could not be considered by the ZBA 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 or degree from its predecessor.” Id., at 190.

The Supreme Court has recognized significant changes in the law as a sufficient basis for requiring a Variance Application to be considered by a ZBA even though a substantially similar Application was denied years before.  See, Brandt Dev. Co of N.H. v. City of Somersworth, 162 N.H. 553 (2011) (1994 application for 3 unit conversion could not be used to refuse to accept 2009 application for same use in light of changes to Variance Criteria under Simplex, Boccia and related decisions interpreting same).

Property owners and abutters should be mindful of these new interpretations of the law when evaluating land use proposals previously considered by both Planning Boards and ZBAs.