New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Local Zoning Ordinance May Not Prohibit Conversion of Structure Existing Legally into Condominium Form of Ownership

Town of Rye Board of Selectmen v. Town of Rye Zoning Board of Adjustment
No. 2006-598, 6/26/2007

A parcel in Rye was developed prior to the adoption of zoning with ten small cottage style units and a building with a rental office and apartment. These “tourist cabins” had historically been rented seasonally, although they no longer conformed to the zoning ordinance either as to use or as to dimensional requirements. They continued in existence as preexisting non-conforming uses.

The owner decided to convert them to the condominium form of ownership in accordance with RSA 356-B. The Rye Zoning Board of Adjustment (ZBA) initially refused a special exception to permit the conversion. This decision was appealed to the superior court, which held the provision of the zoning ordinance prohibiting the conversion invalid, since it was in direct conflict with the section of the condominium act permitting the conversion of structures legally in existence.

On remand to the ZBA, the applicant agreed to limit the use of the cottages to seasonal use, meaning that the usage of the property would not change. Based upon this condition, the ZBA approved the conversion. The Board of Selectmen, following a denial of their request for a rehearing, appealed to the superior court, which affirmed its earlier decision. The selectmen appealed to Supreme Court, which affirmed the result in the trial court.

The Supreme Court determined that the language of the Rye Zoning Ordinance was in actual conflict with the Condominium Act, since it specifically prohibited an action the state statute permitted. In that case, the local ordinance was preempted, and rendered unenforceable.

Justice Duggan concurred specially in the result of the opinion. For him the key fact was that the use of the property after the conversion was unchanged. For him, that meant that the only issue before the ZBA was the form of ownership, and the clear language of the Condominium Act prevented the ZBA from denying the request for relief.

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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