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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 ___________________________ Hillsborough-northern judicial district No. 2007-620 ROBERT E. NASER d/b/a REN REALTY v. TOWN OF DEERING ZONING BOARD OF ADJUSTMENT Argued: April 10, 2008 Opinion Issued: May 22, 2008 Cronin & Bisson, P.C., of Manchester (John G. Cronin and Daniel D. Muller, Jr. on the brief, and Mr. Cronin orally), for the plaintiff. Upton & Hatfield, LLP, of Concord (Matthew H. Upton and Matthew R. Serge on the brief, and Mr. Upton orally), for the defendant. HICKS, J. The plaintiff, Robert E. Naser d/b/a REN Realty, appeals an order of the Superior Court (Abramson, J.) upholding decisions of the defendant, the Town of Deering Zoning Board of Adjustment (ZBA), ruling that his subdivision application failed to comply with the town's zoning ordinance and denying his request for a variance. We affirm in part, reverse in part and remand. The following facts were found by the trial court or are supported by the record. The plaintiff owns seventy-seven acres in Deering. In 1989, the previous owners received approval from the Town of Deering Planning Board (planning board) to develop the property by constructing twenty-five duplex

buildings. Throughout the approval process, there were numerous discussions before the planning board about a conservation easement to be granted by the property owners to the Town of Deering (town). In 1990, the previous owners conveyed a conservation easement to the town over approximately fifty of the seventy-seven acres. The deed did not condition the grant of the easement upon the completion of the development or reserve a right of reverter to the grantors. Improvements began on the property but the development was never completed and the property was conveyed to the plaintiff in 1994. In 2006, he submitted a subdivision application to the planning board for the development of fourteen single-family homes on the twenty-seven acres that were not subject to the conservation easement. The planning board declined to accept the application because it failed to comply with section 13 of the Deering Zoning Ordinance (ordinance). Section 13 regulates open space developments and permits an applicant to increase density by decreasing lot sizes provided a requisite amount of open space is preserved on the property. To determine the appropriate density, an applicant is required to submit a yield plan that shows "that the net density will be no greater than permitted within that zoning district for a conventional subdivision or development." Deering Zoning Ordinance

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