New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Strict Time Limit for Rebuilding Nonconforming Uses Is Upheld…For Now

McKenzie v. Town of Eaton Zoning Board of Adjustment
No. 2005-778, 1/31/2007

The Court upheld a provision of a zoning ordinance imposing a strict one-year time limit to rebuild a nonconforming structure. However, the concurring opinion of one of the justices makes clear that the Court is wrestling with the question of how to review and interpret this kind of provision, and indicates that the result may be quite different in the future if the same issue is presented in a different way.

At issue in this case was a provision in the Eaton zoning ordinance regarding the replacement of legally existing nonconforming structures. The ordinance provided that any nonconforming structure that is destroyed to the extent of 75 percent or more and is not rebuilt within one year “shall constitute discontinuance and abandonment” and “shall not be reconstructed or used except in conformity with this ordinance.” The property owner owned land abutting a lake with a shed located 59 feet from the shore. The town later increased the setback requirements to 125 feet from the shore, thus making the shed nonconforming. The shed was damaged in 2002. Although the owner indicated to the board of selectmen that she wanted to rebuild the shed, she did not do so within the one-year period specified in the ordinance.

The Court was asked to consider whether this time limit violated the property owner’s substantive due process rights under the state constitution. Previous cases have clearly established that this sort of challenge, which questions the fundamental fairness of a zoning ordinance, should be reviewed using the “rational basis test.” This test requires only that the ordinance be rationally related to a legitimate governmental interest; no inquiry needs to be made into whether the ordinance unduly restricts individual rights or uses the least restrictive means to accomplish the goal. The Court reviewed the time limit provision and found a clear intent to discourage the continuation of nonconforming uses by limiting the time within which they may be rebuilt, thus increasing the chances that structures, if rebuilt, will comply with the ordinance. It is well established in New Hampshire that the reduction and elimination of nonconforming uses is a “legitimate governmental interest.” The Court then considered whether the time limit bears a rational relationship to this goal, and had no difficulty finding that it does. As a result, the Court concluded that the strict time limitation did not violate the property owner’s substantive due process rights.

However, the Court could only answer the question that it was asked in this case. If the parties in a future case were to ask the Court to consider whether the application of a similar provision constituted an unconstitutional “taking,” the Court might find that a different test should be used. In his concurring opinion, Justice Duggan noted that the state constitution protects every individual’s right to acquire, possess and protect property. The right to maintain nonconforming uses is meant to protect property owners from a retrospective application of zoning ordinances that would otherwise create a taking by depriving property owners of the continuing use of their land. The Court has implied in the past that property owners have a “fundamental right” in vested nonconforming uses.

This is significant because the Court has consistently held that when a fundamental constitutional right is involved, something more rigorous than the rational basis test should be applied. Therefore, Justice Duggan suggested that if the Court in this case had been asked whether the ordinance effected a taking of the property owner’s fundamental constitutional property rights, the Court could have found that the provision should be reviewed differently. In particular, he suggested that the Court could have interpreted the strict time limit as creating a presumption that the nonconforming use was abandoned after one year, but that if the property owner demonstrated that the cessation of the use was “beyond her control,” the presumption would be overcome and the use would not be deemed abandoned.

Although this case does not change the legal interpretation of strict time limits for the reconstruction of nonconforming uses, stay tuned for further developments in future cases.

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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