New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Variances: Substitution of One Nonconforming Use for Another Is Not Necessarily Consistent with the Public Interest and Spirit of the Ordinance

Nine A, LLC v. Town of Chesterfield
No. 2007-475, 6/3/2008

The applicant owned approximately 86 acres of land in Chesterfield. A six-acre section was located on the shore of Spofford Lake, and contains a vacant 90,000 square foot institutional building which was previously used as a rehabilitation facility. The remaining 80 acres was located on the other side of a state highway, but supported the six-acre parcel with a well and sewage treatment facility. The applicant sought to redevelop the property by substituting single-family housing for the institutional building. Although the proposed use was less intense, it did not meet minimum lot size and lot coverage standards that had been adopted in an overlay district to protect the water quality and aesthetics of Spofford Lake. The Chesterfield Zoning Board of Adjustment denied three separate requests for area variances, finding the proposal would be contrary to the public interest, and inconsistent with the spirit of the ordinance. After the Superior Court affirmed the decision, the applicant appealed to the Supreme Court.

The Court rejected the applicant’s argument that substitution of a nonconforming use with a different nonconforming use always meets the public interest test and spirit of the ordinance test if the proposed new use is less intense and more conforming than the existing use. As the Court noted, if that were the case, the local zoning ordinance and much of the ZBA enabling statute, RSA 674:33, I(b), would be rendered meaningless. While a ZBA may, with sufficient evidence, find that substitution of one nonconforming use for another does meet these tests, it is not compelled to do so.

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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