Town Responds to Woodmont Petition

It has come to the Town’s attention that a petition may be circulating to require the Planning Board to impose as a condition of approval of the Woodmont Development Planned Unit Development, the creation of an “Apple Tree Park” located at WC-4 and WC-5 of the plan.

As always, citizens are encouraged to attend the Planning Board’s public hearings and to offer any insight they can share regarding the specifics of a proposed plan. The public hearings on the Woodmont Development PUD have been well-attended and the Town expects that will continue throughout the process.

Regarding the petition referenced in the preceding paragraph, the Town’s attorney has recommended that the Town post a brief description of the law regarding the designation of a particular site for public use. More than thirty-five years ago, the New Hampshire Supreme Court declared it unconstitutional for municipalities to condition approval of a land use plan on the taking of part of a developer’s land or requiring an improvement that is not necessitated by the land use plan. Robbins Auto Parts, Inc. v. City of Laconia, 117 N.H. 235, 237 (1977). The Court explained its decision as follows:

The right of a citizen not to have his property taken from him for public use without just compensation is a fundamental right the roots of which reach back to Magna Carta. City officials have no legitimate interest in attempting to extort from a citizen surrender of this right as a price for site plan approval. Nor can such a condition be supported under the so-called police power. The right to just compensation is a constitutional restriction on the police power and is therefore superior to it.

The next year, the New Hampshire Supreme Court held that the rule it announced in Robbins Auto Parts, Inc. applies equally when the Planning Board “asks not that the developer improve a parcel of land but that he leave it unimproved.” Patenaude v. Town of Meredith, 118 N.H. 616, 623 (1978).

Town counsel requested that the Town post this release so concerned citizens would better understand the extent of the Planning Board’s authority. It is unquestionable that the Planning Board must consider the preservation of open space, the preservation of natural vegetation and the development of active or passive recreational areas among the myriad considerations in the approval process.

It also cannot be questioned that the Planning Board is authorized to impose reasonable conditions on the approval of any land use plan, Woodmont Development included. However, for the Planning Board to impose a condition of approval that a specific area must remain as unimproved open space, it must find that there exists a specific need related to the nature of the development. Patenaude, 118 N.H. at 622-23.

In other words, for those interested in advocating that the creation of an Apple Tree Park should be a condition of approval of the Woodmont Development PUD, you should be aware that the Planning Board must find that that there exists a specific need for the park related to the PUD.

Again, citizens are encouraged to attend the Planning Board’s public hearings. There are scheduled public hearings for the Woodmont Development PUD on June 5 and 12, 2013. The Town hopes the foregoing will facilitate a more informed discussion.

Submitted by the Town of Londonderry.