New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Subjective intent of landowner not relevant when zoning ordinance defines abandonment of a nonconforming use as discontinuance for more than a year. No abandonment when a business owner keeps its plant ready to produce and deliver a product, even if such products are not actually produced.

Pike Industries, Inc. v. Brian Woodward
No. 2009-126, 5/7/2010

Beginning prior to 1960, Pike Industries had operated an asphalt batching plant in the Town of Madbury as a nonconforming use in its zoning district. Between October of 2005 and August of 2007, no asphalt was actually produced at the facility, but the company did take steps to maintain and repair equipment, solicit bids for work and train personnel to operate the facility. In April of 2007, Pike sought permission from the planning board to alter the use of the site from asphalt batching to concrete batching. Abutters objected, arguing that the asphalt batching had been abandoned, the use could not be restarted and, further, that the concrete batching use was an impermissible change of use. The planning board rejected these arguments, and the abutters appealed to the zoning board of adjustment (ZBA).

The ZBA found that the failure to actually produce asphalt for a period in excess of one year constituted an abandonment of the use under the terms of the zoning ordinance, and that it need not consider the intent of the landowner in making this determination. Pike appealed to the superior court, which reversed the ZBA decision on abandonment and remanded the matter to the ZBA for a consideration of the intent of the landowner. The abutters appealed to the Supreme Court.

In two previous cases, the Court set forth two different rules regarding abandonment of a nonconforming use. In Lawlor v. Salem,116 N.H. 61 (1976), the Court held that the right to a nonconforming use could be lost by abandoning the use, and that the subjective intent of the landowner was a factor in the determination of whether abandonment had occurred in fact. However, in McKenzie v. Eaton Zoning Board of Adjustment,154 N.H. 773 (2007), the Court found that a municipality may lawfully draft its ordinance to define “abandonment of a nonconforming use” without regard to the intent of a landowner to abandon that use.

Here, the Town had drafted its ordinance to define abandonment as discontinuance for more than one year, without regard to the intent of the landowner. The Court applied the rules from McKenzie, and ruled that intent was irrelevant. It also found that when a business maintains a site in a state of readiness to continue the nonconforming use, there is no abandonment even if no product is actually created at the site. “We agree with the trial court’s analogy of the asphalt plant to a store. A store owner must set up a store front, stock the store with merchandise, maintain a staff, pay utilities, and advertise its services. Even with all of the preparations, however, the store owner cannot guarantee that customers will purchase merchandise.” Therefore, the original determination of the planning board was reinstated, and Pike Industries may either resume the asphalt batching use or seek a new site review approval to alter the use to a concrete batching plant.

Please be advised that the foregoing case summary is based upon a New Hampshire Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC’s annual conference. For your copy of the 2009 Court Update, call 800.852.3358, ext. 100.

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