Supreme Court Grants "Builder's Remedy" Following Wrongful Denial of Site Plan Approval

Per the New Hampshire Supreme Court, planning boards must look to specific, applicable site plan regulations rather than more general "purpose" provisions to deny a site plan.  The Court also effectively approved the site plan in question by invoking a "builder's remedy."

Background

Mojalaki Holdings LLC & a. v. City of Franklin (April 9, 2024) involved a site plan application to install a solar panel array on approximately six and a half acres of a former golf course.  The project included the installation of new utility poles and the removal of mature trees to ensure sufficient sunlight for the solar panels.

The City Planner informed the applicant the city did not have any ordinance language “on the books” specifically addressing solar panel arrays and advised that the planning board instead has relied on RSA 672:1, III-a when reviewing them.  RSA 672:1, III-a encourages energy-efficient developments and the use of renewable energy without unreasonable limitations by municipal zoning powers, except where necessary to protect public health, safety, and welfare.

Public input and planning board denial

The planning board conducted multiple hearings and a site visit. Public concerns were raised about potential changes to the area's scenery, the project's impact on views and property values, and previous negative experiences with solar projects in the city. Despite the plaintiffs' efforts to mitigate these concerns by proposing the planting of new trees and installing a green mesh to screen the project, opposition remained.

The planning board denied the application, stating the project would create an industrial look and character out of place in the neighborhood, endanger or adversely impact residents, and contradict the purpose of preserving mature trees. The application otherwise met the city's specific, applicable site plan regulations.

Appeals and final decision

The applicant appealed to the superior court, which upheld the planning board's decision.  The applicant then appealed that decision to the Supreme Court.

In reversing the trial court, the Supreme Court emphasized the need for objective, specific standards in the site plan review process to ensure that decisions are based on clear, consistent criteria rather than subjective judgments or ad hoc decision-making. The reliance on broad purpose provisions without evidence of non-compliance with specific technical regulations was seen as contrary to this principle.  As noted by the Court: "Without specific requirements, the applicant is left without objective standards to guide the application and the proposed project is left to be judged by the subjective views of the Board through ad hoc decision making."  (The Court deployed the term "ad hoc" four times.)

The Court noted the planning board's denial was not supported by specific evidence that the proposed solar panel array failed to meet any of the detailed, applicable site plan regulations, aside from the general purpose provisions. This lack of specific evidence against the project under concrete technical requirements underscored the Court's concern about the reasonableness of using such broad criteria as the sole basis for denial.

The Supreme Court reiterated the limited scope of site plan review, stressing it is intended to ensure permitted uses are developed safely and attractively, without causing harm to public health, safety, or welfare. The Court found that the planning board's decision, based primarily on subjective interpretations of the purpose provisions, did not align with this fundamental goal, as there was no substantial evidence presented that the project posed such threats.

Builder's remedy

The Supreme Court did not stop with its reversal of the trial court (and planning board) decision.  At the request of the applicant, the court also granted a "builder's remedy," which is an order permitting an applicant to proceed with its development, so long as they comply with all other applicable regulations.

Along with a proposed motion to deny the application, the City Planner presented the planning board with an alternative motion to approve the site plan subject to 14 conditions.  The Supreme Court decision does not indicate whether or not the planning board discussed the 14 conditions.  The decision only states the planning board adopted the motion to deny the application.  One wonders what the 14 conditions were and whether or not they were acceptable or even feasible for the applicant.  The Supreme Court remanded the case to the superior court "for entry of a builder's remedy."

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