New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

A zoning regulation cannot result in an unconstitutional taking of property until the landowner exhausts all opportunities to receive a variance from the regulation

Hill-Grant Living Trust v. Kearsarge Lighting Precinct
No. 2009-023, 12/16/2009

The plaintiff owns a 30-acre parcel of land in this Precinct within the Town of Bartlett. The Precinct’s zoning ordinance contains a provision that prohibits the construction of new structures more than 900 feet above sea level. Almost all of the lot in question is above the 900-foot elevation. After denial of a building permit to build a new structure above the 900-foot level, the zoning board of adjustment (ZBA) denied a request to grant a variance from the provision.

Rather than appeal the denial of the variance request to the superior court as provided in RSA 677, the plaintiff immediately brought an action against the Precinct for damages, alleging under both the State and Federal Constitutions that the regulation acted to take the economic value of the property without just compensation, a legal theory called “inverse condemnation.” At the trial court level, relying on precedent from the United States Supreme Court, the court found that the claim was not “ripe,” meaning that the claim could not be heard on its merits, because the plaintiff had not allowed the ZBA every opportunity to consider all of the facts surrounding the claim, and to possibly grant a variance from the effects of the zoning regulation. The case was dismissed, and the plaintiff appealed to the New Hampshire Supreme Court.

The Supreme Court upheld the trial court. Upon review of the record, the Court determined that the plaintiff had presented evidence to the ZBA about building at only a single location on the large lot, and had indicated that it was the sole location where both a house could be made accessible by road, and a septic system could be designed to meet the regulations of the New Hampshire Department of Environmental Services. A review of the plan showed that other locations were technically possible, although no evidence had been presented to determine if they were in fact feasible. The ZBA itself expressed frustration at the presentation, and indicated it wished to receive information about other possible locations to erect the building. Thus, the Supreme Court determined that all alternatives either to achieve zoning compliance or to support a variance had not been exhausted.

The plaintiff further argued that under the holding of Fisher v. Dover, 120 N.H. 187 (1980), it would have been futile to provide evidence of other locations or designs for the structure to the ZBA, because the differences between the presentations would not have been material, and thus the board would have been required as a matter of law to dismiss the subsequent appeals without consideration of the merits of the alternative applications. The Supreme Court reviewed the record and found that the ZBA itself had invited the applicant to modify his approach to the lot for a subsequent hearing. It cited approvingly from a previous case, Morgenstern v. Rye, 147 N.H. 558 (2002), as an example of a new proposal in a second variance application that could be considered under the rule in Fisher. Thus, if an applicant receives a denial of a variance request from the ZBA, but then submits a revised variance application at the town’s invitation to address concerns expressed at the earlier hearing, such a revised application will be treated as “materially changed” and may properly be heard by the zoning board of adjustment.

In this specific case, the regulation which caused the difficulty was subsequently repealed by the Precinct. The Court found that this did not make the appeal moot, but the applicant will not be able to recover damages for the loss in value and ability to use the property that occurred while the regulation was in effect, because it had failed to exhaust all avenues available to seek a variance from the restriction.

Please be advised that the foregoing case summaries are based upon Supreme Court slip opinions. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC’s annual conference. For your copy of the 2009 Court Update, call 800.852.3358, ext. 100.

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