A subdivision approval by the Barrington Planning Board in 2006 created two lots; a front lot (lot 1-0) that was subject to an easement for access and utilities for the benefit of a back lot (Lot 1-1). The deed to the purchaser of the front lot recited that it was subject to a forty-foot-wide access and utility easement as shown on the 2006 plan. Note 12 on the approved plan stated the easement was to be used for a single lot and one building location on Lot 1-1.
In 2021 the owner of Lot 1-1, Hendersons, sought and received ZBA approval for one additional building lot. Over the protest of the owner of Lot 1-0, Harvey, the Planning Board then approved a further subdivision of Lot 1-1 into two lots. Harvey appealed the subdivision approval to the Superior Court where the court sided with Hendersons ruling that the ZBA and Planning Board had respective authority to approve variances and amend subdivision plans.
Harvey argued on appeal that the trial court erred by upholding the planning board’s decision to approve a second lot in reliance on the deeded easement, which, she argued, restricts access to only one lot. She also argued that the ZBA lacked the authority to modify the easement by modifying the restrictions in the 2006 plan, which were incorporated into her deed.
On appeal to the Supreme Court, the court first decided that the easement language that burdened Lot 1-0, for the benefit of Lot 1-1, incorporated language found on the recorded 2006 plan, and that language clearly limited the use of Lot 1-1 to a single lot and one buildable location. Consequently, neither the planning board nor the ZBA could change the terms of that easement through subdivision approval. In light of this limitation on the access easement, the planning board’s decision to conditionally approve the subdivision contradicted the requirements of RSA 674:41. That statute requires that a lot shall not be issued a building permit nor be granted subdivision approval, unless the lot has access to a street. As there was no access for two lots over this easement as it is limited to “a single lot and one buildable location,” the planning board was precluded from approving the new plan absent legal access to the back lot consistent with RSA 674:41. Turco v. Town of Barnstead, 136 N.H. 256 (1992).