Site Plan Acceptance: A Sometimes Bumpy Road to Zoning Protection

[This article originally appeared in the New England Real Estate Journal, April 1, 2006.]

You have labored over design and engineering details for months. After considerable number crunching and analysis, the drainage and traffic reports are nearing completion. All of the pieces are coming together, and, at long last, it is time to submit your site plan application. Now would be a good time to take one final look at the municipality’s site plan application checklist, especially if you are concerned about upcoming zoning changes.

Under New Hampshire law (RSA 676:12(VI)), once a Planning Board votes to accept a site plan application as “complete,” the development shown on that site plan is exempt from any subsequently proposed zoning amendments. (Similar zoning protection is applicable to acceptance of subdivision applications.) As a procedural matter, note that “acceptance” occurs prior to the Planning Board’s evaluation of the proposed development; acceptance relates only to the completeness of the applicant’s submittals. The process of “approval,” in which the Planning Board considers the merits of the proposed development, can only begin once the Planning Board has voted to accept the application as complete.

The zoning protection offered by RSA 676:12(VI) can be quite valuable to developers. The developer of a controversial project, for example, will want the Planning Board to accept the site plan application as soon as possible so that the project is protected against any retaliatory zoning amendments that may be proposed by concerned residents. On the flip side, municipalities will require the developer to strictly comply with all site plan submittal requirements before voting to accept an application as complete. This situation can sometimes create considerable tension between the developer and the municipality, even before the parties roll up their sleeves and address the substance of the application.

What objective guidance is available to a developer and the municipality as they wrestle with the question of whether an application is complete? The applicable statute, RSA 676:4(I)(b), simply points to the town’s regulations. A Planning Board has fairly broad discretion to make determinations of completeness based on applicable regulations and, not surprisingly, the courts in New Hampshire generally have upheld such determinations.

In DHB, Inc. v. Town of Pembroke, 152 N.H. 314 (2005), for example, the New Hampshire Supreme Court upheld the Pembroke Planning Board’s repeated findings, over the course of several informal meetings and hearings, that an application was incomplete. The applicant claimed that it did not have sufficient time to respond to the “voluminous” comments from the town engineer and argued that the Planning Board had “sufficient information to enable it to make an informed decision.” Despite these objections, the court found that the Planning Board could justifiably refuse to accept the application because the applicant did not fully satisfy the application requirements set forth in the town’s regulations. As a result, the project in question was governed by a new growth management ordinance in Pembroke, notice of which was posted before the application was accepted. As an additional strike against developers, the court also held that an applicant contesting the Planning Board’s refusal to accept an application does not have the right to be heard at the public hearing (even if it is to address the completeness issue!).

In this context, what statutory tools are available to help developers in their quest for acceptance of a site plan application? RSA 676:4(I)(c)(1) requires Planning Boards to determine whether a site plan application is complete at “the next regular meeting” following submittal or “within 30 days following delivery of the application.” This requirement helps to keep the process moving. Also, if a Planning Board has deemed an application to be incomplete, RSA 676:4(I)(c)(1) requires the board to provide a developer with specific reasons to support its determination. In this way, a developer can leave the hearing with a list of submittals that will, hopefully, lead to an acceptance at the next meeting.

Despite some statutory protection, the current framework raises questions about whether the municipality holds too much leverage. When dealing with a controversial project, what prevents an overzealous Planning Board or planning staff from repeatedly finding an application incomplete based on trivial defects, resulting in delays and a potential loss of grandfathering protection under RSA 676:12(VI)?

A legislative solution is in the works. House Bill 1508, which passed the House of Representatives and is currently pending before the Senate, would amend RSA 676:12(VI) so that zoning protection would no longer run from the date of acceptance, but from the date of notice for the application. According to our sources at the state house, in light of a relative lack of opposition, HB 1508 may very well be approved by the Senate. Developers across the state certainly will be keeping their fingers crossed.