This is the second Supreme Court opinion issued in this appeal by abutters from planning board approval of a conservation development subdivision (CDS) proposed by intervenor Graystone Builders, Inc. (Graystone). In Auger v. Strafford, 156 N.H. 64 (2007) (Auger I), the Supreme Court determined that the planning board had applied the wrong standard in waiving its regulation that prohibits more than ten lots on a dead-end street. The board had violated its own regulation by failing to require evidence that Graystone would suffer undue hardship by compliance with the regulation. The Court remanded for further proceedings. In Auger I the Court also held that the planning board had insufficient information to approve a “yield plan,” which the board, at its option under the regulation, could require to show the number of houses that could be built in a conventional development. On that issue, the Court held that the superior court should simply have reversed approval of the yield plan.
Upon remand, the trial court entered a final order reversing the planning board approval, without remanding the matter to the board. Graystone appealed to the Supreme Court, arguing that the remand order (the “mandate”) in Auger I required the superior court, in turn, to remand the matter to the planning board to determine whether undue hardship justifies a waiver of the ten-lot standard is justified.
The Court reviewed the proper procedure upon remand. “Generally, a trial court is free upon remand to ‘take such action as law and justice may require under the circumstances as long as it is not inconsistent with the mandate and judgment of [this] court.’ [citation omitted].” The Court agreed with Graystone that the mandate of Auger I required a remand to the planning board. “Because Graystone never had an opportunity to present evidence under the correct standard, more facts must be developed in this case before the issue of undue hardship can be properly decided.”
The plaintiffs argued that the CDS plan cannot, in any event, be approved because the yield plan had been denied. The Court disagreed, holding that, upon remand, it will be up to the board to choose whether to waive the optional yield plan.