Definitions in zoning ordinances regarding permitted uses are very important; land use boards should evaluate applications based on the use as proposed and should not speculate about future unauthorized uses

The central question in this case was whether the applicant's proposed use of property was a permitted use in that zoning district under the terms of the Swanzey Zoning Ordinance. The applicant (All Purpose Storage West Swanzey, LLC) proposed to construct several commercial multi-tenant commercial units in 8 buildings to be leased to various service businesses, such as plumbing, electrical, and roofing companies. The applicant stated that they intended for the units to serve the trades, that tenants "might do some fabrication or assembly on site" ('light industrial' use), and that further approvals from the Town might be required depending on the intended use of the particular tenant.

Although the Planning Board approved the project as a permitted "services" use under the zoning ordinance, when the plaintiff Howard (an abutter) appealed to the ZBA, the ZBA determined it was instead a "professional and business office" use which was also permitted in the Business District. The ZBA approved the project on that basis and Howard appealed. The superior court affirmed the ZBA's decision.

On appeal to the NH Supreme Court, the plaintiff argued that the project fit more properly within the "industrial park" category (which would require a special exception), but the Court disagreed. Focusing on the language of the zoning ordinance, the Court noted that "professional and business offices" are allowed in the Business District, but the ordinance does not define what that phrase means. The trial court had focused on the conjunction "and" between "professional" and "business offices," and had determined that this meant not only professional offices (e.g., doctors, attorneys, accountants) but also any offices that any business, including a trade, might establish to support the work of the particular business. They found that this construction "is telling of a legislative intent to allow both professional offices and business offices in the Business District." If it were otherwise, the Court noted, and if only professional offices were intended to be permitted, then the words "and business" would be meaningless, and courts do not presume the drafters of ordinances include meaningless language.

Finally, while the buildings proposed could accommodate a variety of uses, not all of which are allowed in the Business District, there was no evidence in the record that the proposed business could accommodate ONLY unauthorized uses. Future, contingent, and potentially unauthorized uses a building might accommodate do not provide the measure of whether a zoning ordinance permits that building. Raymond, Tr. of J&R Realty Trust v. Town of Plaistow, 176 N.H. 111 (2023). The board must consider whether the proposed use as presented in the application falls within the definition set forth in the ordinance and must not anticipate that the applicant might later violate the ordinance by a use not authorized. In this case, the applicant had proposed a use that was permitted, which was sufficient. The Court explained that speculation as to future tenants and their potential uses did not render the project non-compliant today. If a tenant proposed a use that was not permitted, then the owner could return for whatever additional approvals might be required at that time.

*This is a Final Order issued by the Supreme Court that disposes of a case that has been briefed but in which no opinion is issued. Although this Final Order has no precedential value, it does provide helpful guidance for municipal officials.

READ MORE IN COURT DECISION ON PRELIMINARY INJUNCTION!