The Self-Created Hardship Exception
The New Hampshire Supreme Court accepted an appeal in another regulatory takings challenge. Rye denied Morgenstern a permit to build a single family home on an approved lot in a single family residential subdivision. Morgenstern submitted two applications, the second of which made some effort to meet Rye’s wetlands concerns and the Town denied the second permit on the ground that it was substantially similar to the first. The Superior Court upheld the denial of the permit, relying in part on the “post-enactment purchaser” theory described above.
NELF filed an amicus brief arguing that the self-created hardship theory as espoused to date by the New Hampshire Court was not applicable and was, in any event, against public policy. The New Hampshire Supreme Court found for Morgenstern, addressing primarily the zoning issues. The court remanded to the Town holding that, if Morgenstern made a good faith effort to meet the Town’s concerns in the second application, the Town would have to reiview the application seriously. The Court withheld judgment on the regulatory takings claim pending the Town’s reconsideration of Morgenstern’s second application.
The New Hampshire Supreme Court accepted an appeal in another regulatory takings challenge. Rye denied Morgenstern a permit to build a single family home on an approved lot in a single family residential subdivision. Morgenstern submitted two applications, the second of which made some effort to meet Rye’s wetlands concerns and the Town denied the second permit on the ground that it was substantially similar to the first. The Superior Court upheld the denial of the permit, relying in part on the “post-enactment purchaser” theory described above.
NELF filed an amicus brief arguing that the self-created hardship theory as espoused to date by the New Hampshire Court was not applicable and was, in any event, against public policy. The New Hampshire Supreme Court found for Morgenstern, addressing primarily the zoning issues. The court remanded to the Town holding that, if Morgenstern made a good faith effort to meet the Town’s concerns in the second application, the Town would have to reiview the application seriously. The Court withheld judgment on the regulatory takings claim pending the Town’s reconsideration of Morgenstern’s second application.
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