Promise to Planning Board Not Kept

by susan
(auburn nh)

Visitor Question: What recourse do I have if a developer agreed in a planning board public meeting to make a deed restriction on clearing of buffer in lots of a cluster subdivision and sold titles to lots without it?

Editors Reply: Susan, we are treating your question as a general question about planning board promises, since unfortunately the situation you describe is fairly common. Throughout all types of planning-related actions, developers make promises to the plan commission or to the city council, or equivalent bodies, and then turn around and do nothing about them.

Of course a smart local government can prevent this type of behavior, but many do not understand that.

To answer your question directly, your recourse could be of three types. Either the local government itself will have the power to enforce the promise, you might have to appeal directly and face to face to the developer, or you might have to file a lawsuit in a civil court.

Let's talk about the first option. Perhaps you might be luckier than you think, if your local government wrote the essence of the oral promise into the resolution or ordinance with which they approved the development.

So that is the first thing to check. Ask whoever provides staffing for the planning board (and if there is none, find out the chair of the planning board and talk with that person). A sophisticated local government will see that provisions that are key to neighborhood satisfaction get written into the public approval--even if the developer's promise was to include the item in question in deed restrictions.

Deed restrictions cannot be enforced by local government, unless of course they are referenced in the approval ordinance, law, or resolution.

It is extremely common to find out that the developer promised something in the heat of the moment that they either did not intend to ever do, or that he or she finds out later is too expensive or too much of a hassle. There really is no penalty for this behavior, except for loss of trust with the particular town or city where this occurs.

The second option is personal appeal to the developer. We are not clear on the details of what you thought would be enforced through a deed restriction, but a motivated developer probably could do something now to make it happen.

We understand that most people do not want to personally confront a powerful person, especially one who might well bring an attorney to the meeting unless it is specifically requested and agreed that this will not happen.

However, these face-to-face meetings do sometimes yield results. If you decide to go this route, make sure to take several of you who are impacted if at all possible. The results might not be exactly what you wanted to happen in the first place, but you may get to most of the essence of the problem.

Thirdly, if neither of these work for you, you are faced with having to file a lawsuit. This of course will cost money, time, and effort, with an uncertain outcome. You could seek either an injunction to force the developer to do something, or you could seek monetary damage if the damage is primarily to your property value.

We hope it doesn't come to filing a suit, but those are your options.

The lesson learned for neighbors and neighborhoods is to make sure that important promises are written into the official approval documents with your town or city.

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