Equitable Waiver of Dimension Requirement can be Based on a Mistaken Code Interpretation

David F. Dietz & a. v. Town of Tuftonboro
New Hampshire Supreme Court Case No. 2017-0536
Tuesday, January 8, 2019

Resolving a dispute over the proper interpretation of the equitable waiver of dimensional requirement statute, RSA 674:33-a, the NH Supreme Court upholds the decisions of the Tuftonboro ZBA and Superior Court.

Sawyer Point Realty LLC (Sawyer Point) owns a house on Lake Winnipeasaukee within Tuftonboro’s Lakefront Residential District.  The ordinance requires a 50-foot setback from the lake for all buildings.  In 1999 Sawyer Point sought a building permit to construct a second story over a portion of the house that was located within the setback.  The town’s building inspector granted the building permit, noting the addition would cause “no change in footprint.” Sawyer Point built further additions in 2008 – 2009 that also intruded on the setback, after seeking and being awarded a setback variance by the ZBA for those additions.

 In 2014 Sawyer Point surveyed its property and determined that the 2008 addition to the home was intruding on the setback more than it had realized.  The neighboring property owners, the Dietzes sought a court order under RSA 676:15 to remove the unlawful construction.  In reply, Sawyer Point sought an equitable waiver under RSA 674:33-a for the portion of the 1999 Addition within the setback, and the approximately fifty square-foot portion of the 2008 Addition that is within the setback but is not within the scope of the 2008 variance. The ZBA granted the equitable waivers and the Dietzes appealed to the Superior Court which upheld the ZBA’s decision.

On appeal the Dietzes’ argued that the trial court erred because RSA 674:33-a requires that the ZBA make written factual findings as to each element of the statute, something the Tuftonboro ZBA did not do.  The NH Supreme Court disagreed concluding that the language of the statute only requires that the ZBA make findings, not that it must set forth those findings in writing. Moreover, the Court observed, the minutes of the ZBA meeting reflect the board discussed and analyzed the four equitable waiver requirements. 

The Dietzes next argued that under RSA 674:33-a, I (d) that Sawyer Point was not ignorant of the facts constituting the setback violation at the time of the 1999 addition.  The Court decided that if an applicant for a dimensional waiver must always be ignorant of the underlying facts — then there would never be a situation in which an applicant would be eligible for a waiver based on an error made by a municipal official without the applicant also having erred in measurement or calculation as provided in paragraph RSA 674:33-a, I (b).  Neither Sawyer Point nor the Town interpreted the zoning ordinance such that building a second floor on the existing footprint would run afoul of the setback requirement. 

Court also rejected the Dietzes’ argument that the balancing test under RSA 674:33-a, I(d), where the cost of correcting the violation is balanced against the public interest, required direct evidence by Sawyer Point on the cost of correction.  Even though such direct evidence was not presented by the Sawyer Point at the ZBA hearing, the representations of Sawyer Point’s counsel that the cost would be substantial, coupled with the ability of the ZBA members to use their personal knowledge that the cost of tearing down the 1999 and 2008 additions outweighed the public benefit, was adequate support for the ZBA’s decision.   The Court also rejected the Dietzes’ argument that RSA 674:33-a, I (d) required an applicant to first apply for and be denied a variance before being allowed to seek an equitable waiver.  The Court stated that had the legislature intended to make applying for a variance — and having the request denied — a prerequisite for securing an equitable waiver, it could easily have said so, which it had not.  The Court likewise rejected arguments by the Dietzes’ it was erroneous for the ZBA not to consider the cumulative effect of building within the lakefront setback, and that the improvements to the Sawyer Point property violated Tuftonboro’s lot coverage requirements.