New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Change to Year-Round Use Is Not an Unlawful Expansion of Nonconforming Use

Severance v. Town of Epsom
No. 2005-868, 5/1/2007

In 2004, the property owners purchased a seasonal camp built in 1958. The property became nonconforming as an undersized lot when the Town’s zoning ordinance was enacted in 1969 and amended in 1978. At the time the property became nonconforming, it was used only during the summer months and was inadequate for year-round occupancy. Upon purchasing the property, the current owners began using it as a year-round single-family dwelling. The zoning compliance officer ordered the owners to cease year-round use because it was an unlawful expansion of a pre-existing nonconforming use. The Town’s zoning board of adjustment upheld the order. In an appeal to the superior court and then to the New Hampshire Supreme Court, the ZBA’s ruling was overturned.

In its appeal to the Supreme Court, the Town first argued that seasonal residential use was not a permitted use under the zoning ordinance and therefore the pre-existing nonconforming use was for seasonal residential use only. However, the zoning ordinance did not distinguish seasonal residential use from year-round residential use in the definition of either “residence, dwelling” or “residence, one family.” “Had the ordinance drafters intended to differentiate between seasonal and full-time residential occupancy, they would have done so.” The Court was particularly convinced of this fact because other parts of the zoning ordinance, such as a prohibition against year-round residency at campgrounds, did distinguish between seasonal and year-round use. Therefore, it was proper to find that the owner’s pre-existing nonconforming use was not restricted to seasonal residential use only.

The Town also argued that a change to year-round was a “substantial change in use” not permitted under the zoning ordinance. A zoning ordinance may expressly permit the continuation of a nonconforming use despite the fact that nonconforming uses, by their very nature, violate the spirit of zoning ordinances. Nonconforming uses may also be expanded if the expansion is a natural activity, closely related to the manner in which a piece of property is used at the time it becomes nonconforming. In this case, the Town’s zoning ordinance allowed nonconforming uses to continue indefinitely unless the specific use (1) ceased for any one year period, (2) substantially changed or enlarged, or (3) was of such nature which constituted a hazard to public health and safety, or became a nuisance. The town argued that the owners had violated the second prong of this test by “substantially changing” the use.

The Court rejected this argument based on the language in the zoning ordinance. The ordinance defined a “substantial change in use” by requiring the consideration of several factors including but not limited to: (a) the nature of the use, whether residential, commercial, industrial, or otherwise; (b) the actual size of any enlargement in relation to the original pre-existing use; (c) the impact of the enlargement or change on the surrounding neighborhood, roads, municipal resources and the environment; and (d) whether the enlargement or change is violative of any provision of these ordinances in effect at the time and if so the actual number and the substance of each provision which may be violated.

In this case, nature of the use was always residential, and the zoning ordinance did not specifically define as a prohibited change “the mere increase of the nonconforming use in time, whether in the number of hours, days, weeks or calendar months during which the activity may be carried on.” The change did not involve an enlargement of the footprint of the dwelling. In addition, and perhaps most importantly, the facts in the case indicated that year-round occupancy of this dwelling would not substantially affect the surrounding neighborhood, roads, municipal resources or the environment. The property was located on a Class VI road for which the Town had no maintenance responsibility, the issue of diminished fire and police access in the winter was not a new problem on that road because many full-time residents already lived there, and there was no credible evidence that the conversion would negatively affect the environment. Therefore, the Court found that under the terms of the Town’s zoning ordinance, the increase in the amount or intensity of the nonconforming use within the same area, under these facts, did not constitute an improper expansion or enlargement of a nonconforming use.

The decision in this case depended upon the specific terms of the zoning ordinance and the particular facts and circumstances of the case. However, the opinion illustrates the importance of carefully drafting zoning ordinances so that they clearly address subjects that a municipality intends to regulate.

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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