To qualify for an equitable waiver of dimensional requirements a property owner must have largely completed a structure built in reasonable reliance on a permit before a zoning violation was discovered

To qualify for an equitable waiver of dimensional requirements a property owner must have largely completed a structure built in reasonable reliance on a permit before a zoning violation was discovered

Through this case order the NH Supreme Court has provided important guidance on what constitutes substantial completion of a structure in order for a property owner to qualify for an equitable wavier of dimensional requirements under RSA 674:33-a. Dana and Sherri Brown obtained a building permit to construct a garage, which was permitted by the City to be located 12 feet from the side yard lot line of their neighbors Garry and Marcia Lane. However, since the Brown and Lane properties were in an open space subdivision, the applicable setback was actually 20 feet.

Relying on the building permit approval, the Browns completed the site work, poured a foundation, and constructed frost walls, which were later inspected and approved by the city’s building inspector. Following the inspector’s approval, the Browns constructed and sheathed the walls of the garage and began installation of roof trusses. At that point the Lanes filed a complaint on February 4, 2022 with the city about a suspected violation, and the city then issued a stop work order on February 7th when the Browns ceased all construction. As of that date they had spent approximately $46,000 to construct the garage.

The Browns applied for and were granted an equitable waiver of dimensional requirements under RSA 674:33-a by the Dover ZBA. After being denied a motion for rehearing, the Lanes appealed to the Superior Court with the central issue being whether there was “substantial completion” under RSA 674:33-a. The trial court found that the relevant date to assess the completion of the structure was February 7, 2022 and that the ZBA had ample evidence to find that the garage was substantially complete as of that date. The trial court thus affirmed the decision of the ZBA.

The only issue on appeal to the Supreme Court was whether the violation of the open space subdivision setback requirement of 20 feet was only discovered until after a structure in violation had been substantially completed. RSA 674:33-a, I (a). The Lanes argued that the proper standard of completeness was whether the structure was ready to be used for its intended purpose. The Supreme Court agreed with the trial court that the words “substantially completed” means having largely completed, but not necessarily all, components of a building or structure. Thus, the court agreed with the trial court that the ZBA had sufficient evidence to support its decision that the Browns had substantially completed the garage by February 7th. In so doing the Court stated that using the substantial construction standard from vested rights cases is analogous to the purpose of the equitable waiver statute — protecting a property owner’s good faith detrimental reliance upon a municipal official’s error in granting a permit.

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