New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Condo Unit Owner Has Standing to Appeal Despite Condo Association’s Agreement Not to Appeal Neighbor’s Planning Board Approval

Johnson et al. v. Town of Wolfeboro et al.
No 2007-653, 4/4/2008

For a proposal to develop land abutting a condominium, only the officers of the condominium association are entitled to be notified of a land use board public hearing. RSA 672:3. This case addresses the standing of a condominium unit owner to appeal a planning board decision where the condominium association has agreed not to oppose the abutter’s application.

Sheepshead Bay, LLC (Sheepshead) applied to the planning board for a special use permit to replace a cottage on Lake Winnipesaukee with a year-round dwelling. The Johnsons owned a unit at Pine Harbor Condominium (PHC) on abutting land. The Johnson unit was 200 feet from the boundary and less than 500 feet from the proposed Sheepshead house. The PHC association directors agreed not to oppose the special use permit, but the Johnsons appeared at the public hearing in opposition and, when the planning board granted the special use permit, they appealed to the superior court. The trial court dismissed the appeal for lack of standing on the ground that the association directors had exclusive authority to act for unit owners in the matter.

On appeal, Sheepshead argued that it had a contract with the PHC board not to contest the application. The Supreme Court reviewed similar cases from other states and held that, “[e]ven assuming that such a contract did exist … it could not abrogate the standing of the individual unit owners as there is no provision in the PHC declaration or bylaws granting the board the authority to contract away the standing rights of individual unit owners.” However, since the Johnsons’ unit, itself, did not abut the Sheepshead property, further analysis was necessary. The Court applied a four-factor test to determine standing to appeal, or “aggrievement,” of a nonabutter: “the proximity of the plaintiff’s property to the site for which approval is sought; the type of change proposed; the immediacy of the injury claimed; and the plaintiff’s participation in the administrative hearings.” The Court ruled that the Johnsons were aggrieved based on the proximity of the buildings, the increased size of the proposed house, the alleged unreasonableness of the board’s decision, and the Johnsons’ active participation at the planning board hearing.

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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