Derry Senior Development, LLC v. Town of Derry

Derry Senior Development, LLC (the developer) (plaintiff) applied for final site-plan approval to construct a residential development in the Town of Derry (the town) (defendant). The site plan included six community septic systems, each with four-inch sewage collection pipes. The plan had been approved by the New Hampshire Department of Environmental Services (DES) based on its finding that the sewage plan complied with state regulations. The Town of Derry Department of Public Works (DPW) opposed the development and requested that the site plan be changed to include a sewage-collection system built to the standards of the town’s sewer-division regulations, which were higher than the standards required by DES but were not applicable to site plans. The town had not enacted site-plan regulations governing septic-system requirements. The town planning board acknowledged that the site plan met DES requirements but denied approval of the plan because the proposed sewage system did not have large enough pipes. The board based its decision on testimony that community septic systems had failed in the past, coupled with the fact that four adjoining landowners had wells located downhill of the proposed system. The superior court affirmed the board’s decision, and the developer appealed to the New Hampshire Supreme Court. The developer argued that, because the town had not enacted site-plan regulations that specifically addressed septic-system requirements, DES approval should be prima facie proof that an applicant’s septic-system design was adequate.