Woodmont Petitioners Cautioned On State Law

Resident Jack Falvey, a longstanding opponent of the Woodmont Commons Planned Unit Development (PUD), has again made his feelings known, this time circulating a petition stating his ideas of what the property should contain. The petition is aimed at garnering support for his idea to require that the developers of the 603-acre site, which is private land, be mandated to create and maintain a park on the property’s Gilcreast Road section. The plot of land is across the street from Cortland Road, where Falvey lives.

Town Planner Cynthia May responded with a press release on the matter. The release was drafted with the assistance of Town Attorney Mike Ramsdell.
“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,” the release says. “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.”

Ramsdell also recommended that the town post a brief description of the law regarding the designation of a particular site for public use. More than 35 years ago, the New Hampshire Supreme Court declared in Robbins Auto Parts, Inc. v. City of Laconia that it is 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 plan.

“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,” the ruling states. “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, in Patenaude v. Town of Meredith, held that the Robbins rule also applies when the Planning Board “asks not that the developer improve a parcel of land but that he leave it unimproved.” Town counsel requested that the town post this release so concerned citizens would better understand the extent of the Planning Board’s authority. Applying case law from the Patenaude decision, May’s release states that advocates arguing that the creation of a park be a condition of approval of the PUD should realize that the Planning Board needs to find a need for the park.

“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,” the release said. “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,” it continued.

A second public hearing on the Woodmont development is scheduled for June 12 at p.m. at the town hall. ZThe first hearing was held on Wednesday, June 5 after Londonderry Times press time.

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