New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Regulation Requiring a Minimum Size for Building Site Serves Legitimate Land Use Purpose

Doyle v. Town of Gilmanton
No. 2006-797, 7/19/2007

The plaintiffs own a 62-acre parcel in Gilmanton, and sought to subdivide the parcel into three lots. Lot 1 would contain 3.5 acres and the existing house, Lot 2 would contain 6.4 acres, and the remaining 52 acres would constitute Lot 3. Although the lots appear to be large, the local subdivision regulations require each separate lot to identify and provide 30,000 square feet of contiguous soil suitable for building purposes. The extensive wetlands on the site made this difficult. Further complicating the issue, the planning board determined that no land within the setback areas imposed by the zoning ordinance could be used to meet the contiguous soil criteria. Following public hearings and the advice of counsel, the Board found that Lots 2 and 3 could not meet the contiguous soil criteria. The Board waived the issue for Lot 2, finding the amount of non-compliance to be small, but refused to grant a waiver for Lot 3. The Board offered to approve Lot 3 with a restriction that it be used only as a wood lot, or in the alternative, to make it part of Lot 1. The Plaintiff appealed to the superior court.

At trial, the superior court reversed the Planning Board decision, and the Town appealed to the Supreme Court. The Court reviewed the text of the applicable regulation in light of the Town’s Zoning Ordinance and found that the Planning Board had correctly determined the meaning of the regulation. Due to the ordinance definition of “setback,” and its requirement that it contain no structures, the Court determined that the 30,000 square foot required “building site” could not utilize land in the setback area, because any portion of the building site might be used for the construction of above or below ground structures. Although the Superior Court found the 30,000 square foot requirement to be “absurd,” the Supreme Court found it to serve a legitimate land use purpose. Accordingly, the superior court was reversed, and the original interpretation and finding of the Planning Board was reinstated.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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