New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Development on Portion of a Rollinsford Parcel Held Not an Expansion of a Nonconforming Use on the Dover Portion of the Same Parcel

Churchill Realty Trust v. City of Dover Zoning Board of Adjustment
No. 2007-043, 1/15/2008

In this case the New Hampshire Supreme Court for the first time interpreted RSA 674:53, which was enacted in 1989 to provide rules for applying planning and zoning regulations to parcels of land that straddle municipal boundaries. Churchill Realty Trust (Churchill) owns a parcel located partially in Dover and partially in Rollinsford. In 1972 a predecessor in title built 120 units of multifamily housing on the Dover land when neither Dover nor Rollinsford had maximum density standards. In 1999 Dover adopted a density requirement of 5,000 square feet of land per dwelling unit, thereby rendering the project in Dover a nonconforming use unless the Rollinsford acreage is taken into account. Rollinsford still has no applicable density standard.

In 2004 Churchill applied for approval of 63 dwelling units on the Rollinsford land with sole access across the Dover land from a Dover public street. The Dover building official issued an administrative ruling that the Rollinsford project would violate Dover density regulations and constitute an unlawful expansion of the nonconforming use in Dover. Churchill appealed first to the Dover zoning board of adjustment, then to superior court and finally to the Supreme Court.

Churchill claimed that there was no expansion of a nonconforming use in Dover because all the new construction would be in Rollinsford. The Court first noted that generally zoning and planning regulations cannot be applied to land in another jurisdiction. Thus RSA 674:53 was the only possible basis for Dover’s claim. RSA 674:53, III provides that an owner of contiguous land in two municipalities may treat the land as a single tract, provided two basic conditions are met: (a) all uses and structures comply with the regulations of the municipality in which they are located; and (b) when land or improvements in one municipality is used to fulfill requirements in the second municipality, the land or improvements cannot thereafter be developed in violation of those requirements. The Court cited the example of using land in municipality A to meet open space requirements in municipality B. “Thus, a developer may voluntarily subject land within a municipality to requirements in addition to the municipality’s own ordinances by, in essence, ‘pledging’ that land to meet the zoning or other requirements of a neighboring municipality.” The Court then stated that the only “pledging” of land in this case is the access across the Dover land to the Rollinsford project. The Court held that Dover could not limit construction in Rollinsford and ruled in favor of Churchill.

Curiously, there was no discussion of whether land in Rollinsford ought to have been regarded as previously “pledged” to meet the density requirements for the 120 units in Dover.

Planning boards faced with development of tracts that straddle a municipal boundary must take care to understand RSA 674:53 and to make written decisions that explain fully how land in the adjoining municipality is affected by the decision.

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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