Sullyville, LLC v. Town of Carroll

Grandfathered Rights Can be Waived for Future Purchasers by a Filing at the Registry of Deeds, and Failure by the Municipality to Take Enforcement Action Does Not Eliminate this Waiver
New Hampshire Supreme Court Case No. 2019-0240
Thursday, April 8, 2021

Sullyville owns a parcel on which it operates a campsite. In 1979, the town adopted a zoning ordinance that prohibits the operation of campsites in residential (R-1) districts but allows them via special exception in residential-business districts (R-B). The parcel was subdivided by a prior owner. As the parcel passed through several owners over the years, one filed a “note” at the registry of deeds waiving the use of part of the parcel as a campsite.

Sullyville contended that the parcel had been operated as a campsite continuously since 1979 and, therefore, it had the right to continue doing so, and seek expansion of its use as such. The New Hampshire Supreme Court held that although the boundaries of the subdivision changed over the years, subsequent purchasers were put on notice of the “note” through purchase and sales agreements as well as via title searches. As the use as a campsite was nonconforming, the law of voluntary waiver of nonconforming use. Waiver occurs when the holder voluntarily or intentionally relinquishes a known right. When the owner of a nonconforming use voluntarily waives his or her right to continue it, it may not be continued or reestablished.

The Court next turned to Sullyville’s municipal estoppel claim. The Court reiterated that in order for Sullyville to prevail on a municipal estoppel claim, it must show that: (1) the municipality, by the words or conduct of an authorized official, falsely represented or concealed a material fact with knowledge of the fact; (2) the plaintiff was ignorant of the truth of the matter; (3) the representation was made with the intention of inducing the plaintiff to rely upon it; and (4) the plaintiff reasonably relied upon the representation to the plaintiff’s detriment. In this case, Sullyville failed to meet its burden as it was actually on notice about the issue with grandfathering due to the purchase and sales agreements that pointed out the “note” on file at the registry of deeds.

Last, the Court addressed the cross-claim brought by an abutter. The Court concluded that the actions brought by the abutter pursuant to RSA 676:15 are “personal actions” for the purpose of RSA 508:4, and are thus subject to the three-year limitations period, even though the relief sought was not merely monetary damages.


Additional Information: 

Practice Pointer:  A better approach for municipalities is to seek to enforcement of a zoning ordinance violation after becoming aware of the violation rather than waiting for an application to expand upon a nonconforming use.