This case is the first decision in which the Supreme Court has construed the equitable waiver statute, RSA 674:33-a. It involves two adjoining lots, one with pond frontage and one with no water frontage. At one time, both lots were owned in common. The owners sold the shorefront lot, reserving a 35-foot-wide easement across the shorefront lot for access to the water from the non-shorefront lot. They then sold the non-shorefront lot. At some point the town became aware of the 35-foot easement and filed an enforcement action on grounds that the easement was in violation of the 100-foot shore frontage requirement of the zoning ordinance. The owners of the non-shorefront lot applied to the ZBA for an equitable waiver of the dimensional requirement pursuant to RSA 674:33-a. The ZBA granted the equitable waiver by a vote of 3-2.
The Taylors, owners of the shorefront lot burdened by the easement, and the board of selectmen, filed suit against the ZBA, alleging error in the granting of the equitable waiver. The Taylors also argued that one of the ZBA members hearing the case should have recused herself pursuant to RSA 673:14. The trial court affirmed the ZBA’s decision.
Before addressing the merits of the equitable waiver, the Court rejected the plaintiffs’ claim that one of the ZBA members should have recused herself pursuant to RSA 673:14, I, because she was a former employee of a party who had intervened in the case. The Court agreed with the trial court that disqualification was not required because (1) at the time of the ZBA hearing, the member was not an employee and (2) although the former employer was one of the original property owners who created the easement, he was not a party before the ZBA. The Court pointed out that RSA 500-A:12 does not disqualify former employees per se, but only those who appear “not indifferent.”
To receive an equitable waiver under RSA 674:33-a, I, an applicant must meet all four criteria. But the Court could resolve the case by addressing only the criterion of RSA 674:33-a, I(b): “That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner’s agent or representative, but was instead caused by either [1] a good faith error in measurement or calculation made by an owner or owner’s agent, or [2] by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority.”
The applicants for waiver did not contend that the violation was the result of a municipal permitting official’s misinterpretation of the ordinance or an error in measurement by an owner or owner’s agent (element [2]). Thus, in order to establish that the subsection was satisfied, the violation must have been caused by a good faith error in measurement or calculation by the owner or owner’s agent (element [1]). They relied on the claim that their misinterpretation of the 100-foot frontage requirement constituted the error in calculation on the owner’s part and therefore falls within the statute. The Court disagreed, pointing out that the term “‘error in calculation’ does not lend itself to an interpretation that includes an owner’s misinterpretation of zoning ordinances.” The Court observed that although an error interpreting a zoning ordinance by certain municipal officials is included in the statute, an owner’s error in interpretation is not.
The defendants also argued that state and local officials commonly construe RSA 674:33-a, I(b) as encompassing an owner’s honest mistake or legitimate mistake. In support of this position they pointed to the New Hampshire Office of Energy and Planning (OEP) publication, The Board of Adjustment in New Hampshire, A Handbook for Local Officials, which advises that item (b) requires a finding of honest mistake. The ZBA’s own application for equitable waiver contained the phrase “a legitimate mistake” when referring to item (b). The Court found that use of the terms “honest mistake” and “legitimate mistake” was overly broad when describing the actions of the owners or owner’s agent. Ignorance of the law or ordinance is not an excuse that will result in a waiver of zoning requirements under RSA 674:33-a.