Court Order Upholds Protection of 71 Acre Wildlife Sanctuary

Lubberland Creek: one of the most pristine wetland/wildlife habitats in the Great Bay system.

On January 9, 2014, Justin C. Richardson, a partner in Upton & Hatfield, LLP’s Municipal Law Practice Group, obtained a landmark ruling for the Town of Newmarket and the Great Bay estuary in the case of Walter Cheney v Town of Newmarket.  The Court’s Order protects a 71-acre parcel that includes Lubberland Creek and rare salt marsh habitat that experts described as “one of the most pristine and unaltered wetland/wildlife habitats in the Great Bay system.”

The Court allowed the Town to record a development restriction on the lot pursuant to a 1985 decision by its Planning Board to approve a 103-unit subdivision based on statements by the applicant that a 300 to 500 foot buffer zone would be maintained to protect the Lubberland Creek salt marsh.  The Planning Board had required an Environmental Management Program to protect the marsh based on its subdivision regulations which provided that any remaining land in an alternative design subdivision be designated as open space or common area.  However, two years after the Planning Board approved the project, a devastating fire in the Town Hall destroyed nearly all of the Town’s records related to the project.

In 2009, the developer sought to construct additional units in the area originally designated as open space.  The Town denied the request.  After the developer appealed, the Town requested that a development restriction be recorded based on the 1985 plans approved by the Planning Board.  The Court granted the Town’s request, observing that the developer had “repeatedly reaffirmed the environmental objectives” of the project which “bind the final project, as approved and reflected in the plans.”

The case illustrates how statements by applicants to New Hampshire Planning and Zoning Boards can be enforced, even when the original records of the approval are lost.  Under New Hampshire law, an approval by a Zoning Board or Planning Board “is dependent upon the representations of the applicant and the intent of the language in the [approval] at the time it is issued.”  1808 Corp. v. Town of New Ipswich, 161 N.H. 772, 775 (2011); RSA 674:21-a.  The case also illustrates the importance of ensuring that all conditions of approval are noted on the final plans recorded in the registry of deeds.

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