Derry Senior Dev., LLC v. Town of Derry - 157 N.H. 441, 951 A.2d 170 (2008)

Rule:

Although a planning board is entitled to rely upon its own judgment and experience in acting upon applications for site plan review, the board may not deny approval on an ad hoc basis because of vague concerns. Further, the board's decision must be based upon more than the mere personal opinion of its members. Where another agency's approval creates a presumption that the proposal protects the public interest, the record must show specific facts justifying rejection of the agency's determination; that is, concrete evidence indicating that following the agency's determination in the particular circumstances would pose a real threat to the public interest.

Facts:

Plaintiff applicant filed an application for site plan approval of an independent adult community. The planning board denied the application based on concerns about plaintiff's proposed sewage disposal system, which had been approved by the New Hampshire Department of Environmental Services (DES). The trial court upheld the decision to deny the site plan approval. Plaintiff appealed. 

Issue:

Did the trial court err in upholding the denial of the plaintiff’s application for site plan approval of an independent adult community? 

Answer:

Yes.

Conclusion:

The court reversed the trial court’s ruling, holding that the planning board had enacted no other septic system standards guiding applicants as to what, beyond DES approval, was required to ensure the safety and adequacy of a proposed sewage disposal system. As the town's regulation specifically incorporated the DES's rules as the sewage disposal system requirements, the regulation created a presumption that DES approval constituted adequate proof of a safe septic system. That presumption had not been rebutted, as the system had been approved with four-inch piping and nothing supported the position that the proposed system with six-inch piping would fail to prevent pollution of water supplies. Furthermore, the DES's approval of plaintiff's system created a presumption that wells surrounding the system were protected, and nothing in the record suggested that the proposed system created an identifiable danger to four down-gradient wells.