New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court Issues First Interpretation of RSA 674:39-aa, Dealing With the Reversal of Administrative Lot Mergers

Roberts v. Windham
No. 2012-428, 7/16/2013

The petitioner appealed from a Superior Court order upholding the decision of the Windham Zoning Board of Adjustment denying his request to reverse the administrative merger of adjacent lots of land.

The land in question has been in petitioner’s family since 1918, when a single deed conveyed four lots as described on a 1913 plan to petitioner’s grandfather. In 1926, another lot was deed by purchase. The five lots were used to support a seasonal cottage and related accessory buildings, including a garage, a screen room, a dock, and a multi-use structure with a woodshed, privy, dog house and additional dock. In 1962 two additional lots were acquired by purchase. Petitioner has owned the land which consists of all or portions of 7 lots as described in the 1913 plan since 1995. The town developed tax maps in the 1960’s, and has since that time taxed the property as a single lot. No person in the chain of title ever applied to the town to voluntarily merge the lots into one.

Following the enactment of RSA 674:39-aa, petitioner applied to the Selectmen of Windham to “unmerge” the lots in accordance with the statute’s procedures. The Selectmen granted relief for the lots described in the 1926 and 1962 deeds, and denied relief for the remaining four lots described in the 1918 deed. They reasoned that the physical layout and use of the primary and accessory structures proved overt owner action to merge the lots into one. This decision was appealed to the Zoning Board of Adjustment, which affirmed the result using the same reasoning as the Selectmen, and further added that the failure to object to the scheme of taxation also showed an owner’s intent to merge the lots. Rehearing was denied, and the Superior Court on appeal affirmed the decision.

At the Supreme Court level two questions were presented. First, since this statute places the burden of proof upon the municipality to deny a request to “unmerge” lots, does this change the standard of review used by a court on appeal?  The Supreme Court quickly determined that the new statute did not change the standard of review, and the decision of the ZBA would be reviewed under the deferential standard contained in RSA 677:6.

Second, the petitioner argued that the evidence used by the municipality was not sufficient to support a denial of the request. Because the standard of review is deferential, it may only be reversed if no reasonable person could have reached the same decision based upon the available evidence. Here, the court reviewed the decision based upon the use of the property in its entirety, rather than upon each use in isolation. No single factor was dispositive. The fact that the four lots were described in a single deed, and had been taxed as a unit for many years were not sufficient standing alone. However, when coupled with the fact that the primary and accessory buildings had been constructed to work as a unit without regard to lot lines, the evidence was sufficient to affirm the decision of the ZBA.


In this matter of first impression, governing bodies and zoning boards of adjustment now know they should review requests to “unmerge” lots based upon all of the circumstances of actual use of the property, and that the lack of a request to voluntarily merge the lots by a current or former owner will not, standing alone, support such a request.

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