Land Use Boards/Subsequent Application Doctrine

Land use boards, especially planning and zoning boards, are often faced with applications to develop property that are similar to prior applications to develop the same property. Since the New Hampshire Supreme Court’s decision in Fisher v. City of Dover, 120 N.H. 187 (1980), the law in New Hampshire has been that a zoning board of adjustment (“ZBA”) should not consider a subsequent application 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 and degree from the prior application. The Supreme Court refers to this doctrine as the “subsequent application doctrine” (sometimes referred to as the “finality doctrine”).

Until April 2016, the Supreme Court had not applied the subsequent application doctrine to applications before a planning board. In CBDA Development, LLC v. Town of Thornton, 168 N.H. 715 (2016), the Court held that the Town’s Planning Board had properly decided that it could not consider the plaintiff’s second application because it did not materially differ in nature and degree from its initial application, which had been denied. The Court rejected plaintiff’s argument that the subsequent application doctrine applied only to applications before a ZBA.

The Court in CBDA Development, LLC v. Town of Thornton established or reiterated a number of principles that should be of interest to members of all land use boards, including:

1. That the subsequent application doctrine is alive and well and applies to decisions of all land use boards. In addition to applications before ZBA’s and planning boards, the doctrine would also apply, for example, to applications before a building code board of appeals.
2. The burden of proof is on the applicant to show that the subsequent application involves a material change of circumstances affecting the merits of the application or is for a use that materially differs in nature and degree from the original application.
3. The land use board itself should determine, as a threshold question, whether the subsequent application doctrine applies to preclude consideration of the second application. If it applies, then the board should not proceed to a consideration of the merits of the application. If it does not apply, then the board may proceed to consider the application’s merits. It is within the sound discretion of the land use board to determine whether the second application has been changed sufficiently, or whether the circumstances have changed sufficiently, to warrant hearing the merits of the second application.

Land use boards should be cautious about applying the subsequent application doctrine too zealously. For example, where a subsequent application is changed to address specific concerns that the land use board raised when considering the merits of the first application, the board should hear the merits of the second application. In Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553 (2011), the Court held that there had been substantial changes in the law applicable to variances so that the ZBA should have heard the subsequent application.

Note that while this entry addresses New Hampshire law, the Maine Supreme Judicial Court issued a similar ruling in the 1994 case of Silsby v. Allen’s Blueberry Freezer, Inc., 501 A.2d 1290, 1295 (Me. 1985). The guidelines discussed above are generally applicable in both states.