New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Nonconforming Uses and the Importance of the Record in Land Use Cases

Dovaro 12 Atlantic, LLC v. Town of Hampton
No. 2007-219 and 2008-064, 1/9/2009

This opinion provides further refinement to the law of nonconforming uses and illustrates the importance of presenting relevant facts in a land use case at the earliest possible time.

The case involved a lot with two buildings containing a total of seven seasonal residential rental units. The pre-existing use of the lot was nonconforming because the ordinance required two parking spaces per unit of a certain size and configuration, and the lot could not accommodate this. Some of the renters traditionally leased their own parking offsite, which was also nonconforming because those parking spaces were not “assured perpetual existence by easement.”

The owner sought to convert the units into year-round condominium units. After an initial denial by the planning board and an order by the trial court to grant approval without the parking spaces the board deemed offensive, the owner amended the plan to provide for eight on-site parking spaces. The board approved of four of the spaces, rejected the other four as a public nuisance and a danger to public safety, and required the condominium association to acquire four offsite parking spaces in perpetuity.

On appeal, the town argued that perpetual easements for offsite parking could be required because the pre-existing nonconforming use involved offsite parking. However, because the tenants of the property, rather than the owner, had always secured the offsite parking, the Court found that offsite parking was not part of the property owner’s nonconforming use of the land, and the town could not condition approval on the owner’s acquisition of perpetual offsite parking.

The town also argued that, when the trial court approved the elimination of four parking spaces, it “stripped” the owner of its nonconforming use, and thus the owner should be required to conform to all aspects of the zoning ordinance. The Supreme Court disagreed. While the ordinance would prohibit the owner from reverting to those four eliminated spaces at a later time, bringing one aspect of the property into compliance does not automatically change the pre-existing nonconforming use and require the entire use to be brought into conformance with the ordinance.

Finally, the town argued that a change from seasonal to year-round use was a “substantial change” of the nonconforming use. Zoning ordinances apply to “any alteration of a building or use for a purpose or in a manner which is substantially different from the use to which it was put before alteration.” RSA 674:19. In this case, the ordinance did not define what constituted a substantially different use, so the Court applied the common law test and looked at three factors: (1) the extent to which the use reflects the nature and purpose of the preexisting use; (2) whether the use is merely a different manner of using the original use or constitutes a use that is different in character, nature and kind; and (3) whether the use will have a substantially different effect upon the neighborhood. (The Court has previously ruled in Cohen v. Henniker, 134 N.H. 425 (1991), that these are the same factors that determine whether a planning board can deny a condominium conversion under RSA 356-B:5.)

The Court found the use was identical (residential use with nonconforming onsite parking) whether it was carried on seasonally or year-round. The town argued that the change to year-round parking would have a substantially different effect on the neighborhood (increasing crowding, forcing unit owners to park on the street and interfering with snow removal). Significantly, however, the Court ruled that no evidence of those alleged neighborhood effects was ever presented to the planning board to support that conclusion. As a result, the Court held that the trial court correctly determined that the change to year-round use was not a substantial change of the nonconforming use.

The lesson of this case is that the record below is crucial. A town cannot develop a justification for a planning board decision at a later time; the facts and evidence must exist at the time of the decision and must be part of the record for the court to review.

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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