2006-598, TOWN OF RYE BOARD OF SELECTMEN v. TOWN OF RYE ZONING BOARD OF ADJUSTMENT

The plaintiff, the Town of Rye Board of Selectmen

Street, LLC. Cronin on the brief, and Mr. Cronin orally), for the intervenor, 228 Maple Cronin & Bisson, P.C., of Manchester (John F. Bisson and John G.

brief and orally), for the defendant. Bosen & Springer, PLLC, of Portsmouth (Jonathan S. Springer on the

to press. Errors may be reported by E-mail at the following address: Michael L. Donovan, of Concord, by brief and orally, for the plaintiff.

TOWN OF RYE ZONING BOARD OF ADJUSTMENT

editorial errors in order that corrections may be made before the opinion goes No. 2006-598 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 ZBA’s determination regarding change in use was unlawful or unreasonable. land use, and the Selectmen had not met their burden to demonstrate that the 2

conform to the lot-size requirements of the general residential zone.

exception would be for the condominium conversion to result in a change in Act. The court found that the only way the ZBA could deny the special any structures other than “dwelling units” conflicted with the Condominium in June 2006 that the Ordinance’s prohibition of condominium conversions for

Aside from not conforming to the use requirements, the cottages also do not adoption of the Ordinance, however; thus, they are prior non-conforming uses. raised by the Selectmen in turn. residential zone in which they sit. The cabins were constructed prior to Rye’s The Selectmen appeal the trial court’s rulings. We address each issue

condominium conversion would result in a change in use of the property. application and remanded for a determination of whether the proposed Condominium Act. The court reversed the ZBA’s dismissal of 228 Maple’s

over which it had no jurisdiction. Citing its prior decision, the trial court ruled first decision placed the ZBA in the untenable position of deciding a matter appealed the ZBA’s decision to the superior court, claiming that the court’s granted 228 Maple’s application for a special exception. The Selectmen “tourist cabins” or “tourist camps,” which are excluded from the general were not included in that definition. On remand, the ZBA determined that no change in use would occur and only permitted condominium conversion of “dwelling units,” and tourist cabins ZBA dismissed the application for lack of jurisdiction because the Ordinance 228 Maple agreed to limit the use of the tourist cabins to seasonal use. The

for any building not classified as a “dwelling unit” conflicted with the ruled in July 2005 that the Ordinance’s prohibition of condominium conversion chapter 356-B (1995 & Supp. 2006), the Condominium Act. The trial court ruling that the special exception criteria in the Ordinance conflicted with RSA 228 Maple appealed to the superior court, and sought a declaratory

Rye Zoning Ordinance (Ordinance) classifies the cottage-style buildings as size from 347 to 766 square feet and have been rented seasonally. The Town of rental office and an apartment are located. The cottage-style buildings range in convert the eleven buildings to condominium ownership. In its application, In January 2004, 228 Maple applied to the ZBA for a special exception to

in Rye on which ten cottage-style buildings and one building containing a The following facts are undisputed. 228 Maple owns a 1.29-acre parcel p. 3 3

Adjustment, only if all the provisions herein are met. shall be permitted as a special exception granted by the Board of

legislature did not see fit to incorporate in the statute. conversion of existing dwelling units to condominium ownership what the legislature might have said or add language that the 50 p. 3 3.1 Permitted by Special Exception: In any district, law. Section 503 Condominium Conversions. invalid if it is repugnant to, or inconsistent with, State law. pertinent part: between the Condominium Act and the Ordinance. The Ordinance states, in The Selectmen challenge the trial court’s finding of an actual conflict

or vice versa. Id. municipal ordinance or regulation permits that which a State statute prohibits, Bethlehem, 150 N.H. 606, 611 (2004). An actual conflict exists when a conflict between State and local regulation. N. Country Envtl. Servs. v. Town of Id further indication of legislative intent, and we refuse to consider. State law expressly preempts local law when there is an actual which municipal legislation will be preempted is if it expressly contradicts State

The preemption doctrine flows from the principle that municipal legislation is preempted by the State. Thayer v. Town of Tilton, 151 N.H. 48 p. 3 3, 487 (2004). It is well settled that towns cannot regulate a field that has been

Id. (citations omitted).

language is plain and unambiguous, we need not look beyond it for and ordinary meanings to the words used. When a statute’s the language of the statute, and, where possible, ascribe the plain the words of the statute considered as a whole. We first examine We are the final arbiters of the legislature’s intent as expressed in

Giacomini & Giacomini, 151 N.H. 775, 776 (2005). We review the trial court’s statutory interpretation de novo. In the Matter of Blagbrough Family Realty Trust v. Town of Wilton, 15 p. 3 3 N.H. 234, 236 (2006). An issue of state preemption is essentially one of statutory interpretation.

condominiums because the Act expressly provides for local land use regulation. the Condominium Act to completely control land use regulation of conversion of “tourist cabins.” They argue that the legislature did not intend Ordinance conflicts with the Condominium Act by prohibiting condominium The Selectmen argue that the superior court erred in ruling that the

I. Preemption conversion condominium. p. 4 exception, or variance, as the case may be, prior to becoming a

property is located shall secure a special use permit, a special

site plan regulations of the respective city or town in which the the use thereof which do not conform to the zoning, land use and provide by ordinance that proposed conversion condominiums and

offered for occupancy.

permit a physically identical project or development under a conflicts with RSA 356-B:5. On its face, the Ordinance prohibits buildings that differently by any zoning or other land use ordinance which would We agree with the trial court that section 503.3 of the Ordinance actually residential club units or other similar commercial accommodations inherent therein. Neither shall any condominium be treated motel, tourist cabin (camp), lodging house, institutional home, living, sanitary and sleeping facilities, but not including hotel,

conflicts with RSA 356-B:5 (1995), which states, in pertinent part: condominiums. The trial court ruled that this language in the Ordinance quoted language from the Ordinance prohibits conversion of tourist cabins to

condominiums as such by reason of the form of ownership No zoning or other land use ordinance shall prohibit living together as a single housekeeping unit, and having cooking,

“tourist cabins” under the Ordinance. There is also no dispute that the above- There is no dispute that the ten cottage-style buildings at issue in this case are

units sought to be converted have legal status.

One or more rooms arranged for the use of one or more persons

The ordinance defines a “dwelling unit” as:

minimum of six hundred (600) square feet of floor area. B. Each dwelling unit of the condominium shall contain a

burden shall be on the petitioner to demonstrate that the pursuant to the ordinances of the Town of Rye. The for condominium conversion, exist as legal dwelling units condominium conversion must, at the time of the request A. The dwelling units which are subject to the request for

503.3 Criteria for Special Exceptions.

. . . . p. 5 5

in a change in use, the Selectmen argue, because: (1) the change in use from would not result in a change in use of the property. The conversion will result

court erred in affirming, that 228 Maple’s proposed condominium conversion Ordinance directly conflicts with, and is preempted by, the Condominium Act. The Selectmen next argue that the ZBA erred in finding, and the trial Ordinance prohibits that which a State statute permits. Accordingly the condominium form of ownership, without any physical change to the units, the II. The ZBA’s Findings of Fact

under a different form of ownership, the ordinance conflicts with RSA 3 p. 5 56-B:5. tourist cabins at issue, while the physically identical structures are permitted today. Because the Ordinance, on its face, prohibits the conversion of the disparate treatment.” Id. We reach the same conclusion on the facts before us indicate that condominium conversion would have to be allowed to avoid proposed condominiums. Id. at 428. “Thus,” we stated, “RSA 356-B:5 would and observed that the existing rental units were physically identical to the conflicts with, and is preempted by, the Condominium Act. court, we quoted the same language from the Condominium Act quoted above less based upon their form of ownership, this provision of the ordinance also zone. Id. The trial court denied the owner’s appeal. Id. In reversing the trial the Ordinance prohibits the conversion of non-dwelling units to the because the proposal did not conform with the lot-size requirements for its approval to convert the units into condominiums and the Town denied it legal nonconforming uses. Id. The apartment owner applied for subdivision the Town of Henniker had adopted zoning ordinances, the apartments were requirements for its zone; but, because the apartments were constructed before to condominiums. The property did not satisfy the lot-size and frontage (1991), in which the owner of two apartment buildings wished to convert them This case is similar to Cohen v. Town of Henniker, 134 N.H. 425, 426

section p. 5 503.3 B of the Ordinance excludes condominiums of 600 square feet or identical project or development under a different form of ownership.” Because but prohibits such structures from being converted to condominiums. Because by any zoning or other land use ordinance which would permit a physically Ordinance allows buildings with less than 600 square feet of floor area to exist, 356-B:5 that provides, “Neither shall any condominium be treated differently of the condominium must contain at least 600 square feet of floor area. The condominium conversion, particularly the requirement that each dwelling unit does not comply with various requirements for a special exception for The same analysis applies to the Selectmen’s argument that 228 Maple

condominiums. This restriction directly conflicts with the language of RSA are not dwelling units, such as tourist cabins, from being converted to that this was insufficient to constitute a change in use.

p. 6 extensive discussion before the ZBA of updating the septic system, but found

would be no change in traffic impact. The trial court also considered the including a traffic study done by a traffic engineer, which showed that there evidence presented to the ZBA that no impact on the land would occur,

determine whether the Ordinance conflicts with the Condominium Act. We remanding to the ZBA because the ZBA does not have the authority to

accommodate more people. Further, the trial court considered the substantial themselves would not change in size or be altered at all; thus, they would not decision. Planning Board. The trial court considered evidence presented that the cabins the evidence or legally erroneous. Accordingly, we uphold the trial court’s parking was not required and was simply a suggestion made by the Rye

decision to remand to the ZBA. They first argue that the trial court erred in The Selectmen raise two arguments regarding the trial court’s 2005

system. III. The ZBA’s Authority

the Selectmen have shown that the trial court’s decision was unsupported by that four parking spaces may be added, but also recognized that the additional Pursuant to our limited review in zoning cases, we cannot conclude that time period of use as tourist cabins. The trial court recognized the possibility to restrict the condominiums to seasonal use only, thus maintaining the same would not affect the use of the land based in part upon 228 Maple’s agreement

Environmental Services (DES) without the installation of an entirely new

The trial court affirmed the ZBA’s determination that the conversion

erroneous. Id. condominium subdivision approval from the New Hampshire Department of decision on appeal unless it is not supported by the evidence or is legally tourist cabins is insufficient to serve condominiums and will not receive burden of proof on appeal to the trial court. Id. We will uphold the trial court’s unreasonable.” adding more parking spaces; and (3) the current septic system serving the Id. The party seeking to set aside the ZBA’s decision bears the probabilities, on the evidence before it, that the ZBA’s decision is of law, unless the court is persuaded, based upon a balance of the lawful and reasonable, and will not be set aside by the trial court absent errors N.H. 74, 77 (2005). “The factual findings of the ZBA are deemed prima facie Our review in zoning cases is limited. Harrington v. Town of Warner, 152

consumption of water; (2) the applicants will physically change the property by tourist occupancy to owner occupancy will increase traffic, waste, and may be, prior to becoming a conversion condominium.

a special use permit, a special exception, or variance, as the case respective city or town in which the property is located shall secure not conform to the zoning, land use and site plan regulations of the

conversion condominiums do not conform to the Town’s local land use (Emphasis added.) This language suggests that in the event that proposed

properly did not ZBA did not “waive” the dwelling unit condition for a special exception; the ZBA

proposed conversion condominiums and the use thereof which do Nevertheless, cities and towns may provide by ordinance that

RSA 356-B:5 which plainly states: To start, the majority opinion does not fully acknowledge the language in

between the Town’s Zoning Ordinance and RSA 356-B:5 (1995). however, because I would employ a different analysis concerning the interplay Maple to convert the buildings it owns into condominiums. I write separately, conflicted with the Condominium Act and was preempted. Accordingly, the to affirm the superior court’s order upholding the ZBA’s decision to allow 228 We disagree. As explained above, the trial court ruled that Section 503.3 A DUGGAN, J., concurring specially. I concur with the majority’s decision property be an existing dwelling unit was a requirement for a special exception. any conditions for a special exception, and the criteria that an applicant’s J., concurred specially. BRODERICK, C.J., and DALIANIS and HICKS, JJ., concurred; DUGGAN,

ruling.

consider the dwelling unit condition in light of the trial court’s

converted to condominiums; thus, the intent of the RSA 356-B:6 [ of accommodations, which it does not define as ‘dwelling units,’ being the Ordinance, as written, results in an effective barrier against certain kinds remanding to the ZBA because the ZBA does not have the authority to waive The Selectmen’s second argument asserts that the trial court erred in

the ZBA was not required to determine whether the Ordinance conflicted with section 503.3 A of the Ordinance conflicted with the Condominium Act. Thus, thwarted.” The trial court determined, before remanding to the ZBA, that discrimination against condominiums solely as a form of ownership is

ruled that the Ordinance and the Condominium Act conflict, stating: “Here, disagree with the premise of this argument. In its 2005 order, the trial court violate RSA 356-B:5. p. 8 conflict with the doctrine of nonconforming uses, and would not expansion of use; in such a case, preventing conversion would not

therefore affirm the superior court’s order upholding the ZBA’s decision. for the ZBA to grant 228 Maple’s application for a special exception. I would not result in a change in the use of the property. Consequently, it was proper

fact have an effect on the land use, this may constitute a change or

the superior court agreed, that the proposed condominium conversion would in section 503.3 of the Town’s Ordinance. However, the ZBA determined, and of the cottages do not meet the minimum square footage requirement specified units is not necessarily a change in use. If the conversion would in majority points out, they do not meet the definition of “dwelling unit,” and most uses. . . . The conversion of apartment units into condominium style buildings owned by 228 Maple are legal nonconforming uses. As the land use is supported by our cases on nonconforming The analysis set forth in would have an actual effect on the use of the land. Cohen controls in this case. Here, the cottagestatute, such a requirement may only be denied if the conversion Id. at 429. nonconforming use. However, to be consistent with the rest of the

permit, special exception, or variance where there is no change in Interpreting RSA 356-B:5 to preclude denial of a special use

Town erred in denying the application, the prior to conversion even where there exists a protected Cohen court further explained that: not conform with the lot-size requirements for its zone. Id. In holding that the condominiums, and the Town denied the application because the proposal did The owner applied for subdivision approval to convert the apartment units into court explains: nonconforming uses, wished to convert them into condominiums. Id. at 426. situation where the owner of two apartment buildings, which were legal Id. (citation omitted). As explained in the majority opinion, Cohen involved a

[A] municipality may require such a permit, exception, or variance

N.H. 425, 428 (1991). Citing the language from RSA 356-B:5 quoted above, the This language has been examined in Cohen v. Town of Henniker, 134

exception. regulations, the Town can require the developer to apply for a special