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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2006-515 FORMULA DEVELOPMENT CORPORATION v. TOWN OF CHESTER CLINTON REALTY TRUST v. TOWN OF CHESTER Argued: April 3, 2007 Opinion Issued: September 20, 2007 Sumner F. Kalman, Attorney at Law, P.C., of Plaistow (Sumner F. Kalman and Thea Valvanis on the joint brief), for Formula Development Corporation, and Upton & Hatfield, LLP, of Concord (Russell F. Hilliard and Kenneth J. Barnes on the joint brief, and Mr. Hilliard orally), for Clinton Realty Trust.

Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Dean B. Eggert and Gregory M. Sargent on the brief, and Mr. Sargent orally), for the defendant. HICKS, J. The plaintiffs, Formula Development Corporation (Formula) and Clinton Realty Trust (Clinton), appeal the decision of the Superior Court (Morrill, J.) denying their petition for abatement of a land use change tax (LUCT), see RSA 79-A:7 (2003 & Supp. 2006), that was imposed by the defendant, Town of Chester (town). We reverse and remand. The record supports the following. Clinton was the original owner of a thirty-acre parcel of property in Chester. In 2000, the town's planning board granted subdivision approval for the development of a twenty-unit, singlefamily, condominium cluster development. The development included nearly fifteen acres of open space, pursuant to the town's zoning ordinance which required: (1) at least 1.5 acres of land per housing unit; and (2) at least forty percent of the total area of the "[c]luster tract" be retained for open space. See Chester Zoning Ordinance, art. 6,

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