2005-868, MELVIN SEVERANCE, III & a. v. TOWN OF EPSOM

The defendant, Town of Epsom (town), appeals a ruling of the

orally), for the defendant. Soltani/Mosca P.L.L.C., of Epsom (Edward C. Mosca on the brief and

on the brief and orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr.

editorial errors in order that corrections may be made before the opinion goes No. 2005-868 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Merrimack 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 p. 2 22 as occupancy.

used only during the summer months and was inadequate for year-round superior court, which reversed. The town appeals this ruling. motion for rehearing was denied, they appealed the ZBA’s decision to the We disagree. camp to year-round use was not a substantial change of a nonconforming use. the town’s zoning ordinance and that conversion of the plaintiffs’ seasonal decision and found that seasonal residential use was a permitted use under

govern. Id. Danville, 14 p. 2 2 N.H. 775, 779 (1998). Traditional rules of statutory construction Interpreting a zoning ordinance is a question of law. Cormier v. Town of nonconforming use. At the time the property became nonconforming, it was road. The camp was “grandfathered” under the ordinance as a pre-existing, court. be on a minimum two-acre lot with 200 feet of frontage on a class V or higher ZBA, which upheld the compliance officer’s decision. After the plaintiffs’ decision bears the burden of proof in the superior

unreasonable. The party seeking to set aside the ZBA evidence before it that the ZBA decision is

The town argues that the trial court erred when it reversed the ZBA’s court is persuaded by a balance of probabilities on the

577, 580 ( p. 2 2005). it is legally erroneous. Chester Rod & Gun Club v. Town of Chester, 152 N.H. will uphold the trial court’s decision unless the evidence does not support it or Garrison v. Town of Henniker, 154 N.H. 26, 29 (2006) (citations omitted). We

nonconforming because the ordinance requires structures in the R/A zone to expansion of a pre-existing, nonconforming use. The plaintiffs appealed to the dwelling as a year-round residence because such occupancy was an unlawful compliance officer issued a letter ordering the plaintiffs to cease using their

the superior court absent errors of law or unless the facie lawful and reasonable and will not be set aside by limited. Factual findings of the ZBA are deemed prima The superior court’s review in zoning cases is

1969 and its subsequent amendment in 1978, however, rendered the property town’s current zoning ordinance. The enactment of the zoning ordinance in has always been used as a single-family dwelling, a permitted use under the round, single-family dwelling. On December p. 2 29, 2004, the town’s zoning Upon purchasing the property, the plaintiffs began using it as a year-

located on a private road in the Residential/Agricultural (R/A) zone. The camp zoning in Epsom. It is a single-family dwelling, which sits on a .31-acre lot single-family residence, which is a permitted use in the R/A zone.

p. 3 be clear and unambiguous. Under the ordinance, the plaintiffs’ property is a

as applied to businesses and campgrounds.

for and occupied by one family only.” We find the language of the ordinance to as “[a] detached or free standing residence other than a mobile home, designed no more than two families.” Further, the town defines “Residence, One Family” For example, the ordinance differentiates between seasonal and year-round use town’s glossary as “[a] structure that is designed or used as a dwelling place for

very nature violate the spirit of zoning laws.” Id. However, “[n]onconforming expressly permit the continuation of nonconforming uses, such uses by their Zoning Board, 130 N.H. 510, 518 (1988). “Although zoning ordinances may by its nature, is restrictive.” New London Land Use Assoc. v. New London areas of the zoning ordinance distinguish between full time and seasonal use.” year-round use is a substantial change in use under the ordinance. “Zoning, use from year-round residential use. “Residence, Dwelling” is defined in the residential occupancy, they would have done so. That is clear because other We next address the town’s claim that the expansion from seasonal to the ordinance drafters intended to differentiate between seasonal and full-time (1996). regulate, its remedy is to amend the ordinance pursuant to RSA 674:16, I parks). If the ordinance does not fit the circumstances the town desires to residency at campgrounds, recreational campgrounds, or recreational camping “Seasonal (Intermittent) Business(es)”), art. III, L (prohibiting year-round Ordinance art. III, I (creating separate requirements for “General Business” and

However, the town’s zoning ordinance does not distinguish seasonal residential which they are now attempting to expand to year-round residential use. between seasonal and year-round occupancy of single-family residences. Had nonconforming use of their property was for seasonal residential use only, The trial court correctly ruled that “[t]he ordinance draws no distinction

intent. the ordinance itself for further indications of legislative is plain and unambiguous, we need not look beyond

use under the town’s zoning ordinance. Thus, the plaintiffs’ pre-existing, The town first argues that seasonal residential use was not a permitted

Id.

govern. Further, when the language of the ordinance ordinance defines the term in issue, that definition will approved usage of the language, but where the always be construed according to the common and [T]he words and phrases of an ordinance should may be carried on.”

p. 4 number of hours, days, weeks or calendar months during which the activity

of each provision which may be violated. 4 time and if so the actual number and the substance

public health and safety, or has become a nuisance.” change the “mere increase of the nonconforming use in time, whether in the resources and the environment. on year-round. The ordinance does not specifically define as a prohibited Under the terms of the ordinance, the identical nonconforming use is carried

any provision of these ordinances in effect at the Frost v. Lucey, 231 A.2d 441, 448-49 (Me. 1967).

changed or enlarged”; or (3) “is of such nature which constitutes a hazard to

surrounding neighborhood, roads, municipal

undersized lot is the same whether the occupancy is seasonal or year-round. In the instant case, the nonconforming use of the dwelling on an

d. Whether the enlargement or change is violative of shall consider factors including but not limited to: under these ordinances the determining authority specific use: (1) “has ceased for any one year period”; (2) “has substantially change constitutes “substantial” so as to be prohibited

existing, nonconforming use is permitted to continue indefinitely unless the c. The impact of the enlargement or change on the 1969 to “continue to exist” subject to certain provisions. Further, a presubstantial change in use. In pertinent part, the ordinance provides: original pre-existing use.

b. The actual size of any enlargement in relation to the

commercial, industrial or otherwise. a. The nature of the use, whether residential,

In determining whether any change or proposed

allows nonconforming lots that “existed prior to enactment” of the ordinance in Article III, B(4) of the town’s zoning ordinance defines what constitutes a

enactment of the ordinance creating the nonconforming use.” substantial change. We disagree. plaintiffs’ use of their dwelling from seasonal to year-round constitutes a Ordinance, art. III, B(3)(b). The town argues that the expansion of the

Article III of the town’s zoning ordinance, entitled “General Provisions,”

related to the manner in which a piece of property is used at the time of the uses may be expanded, where the expansion is a natural activity, closely p. 5 5

the environment. concurred. evidence that year-round occupancy by the plaintiffs would negatively affect BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., round residences. The trial court also found that there was no credible enlargement of the nonconforming use. Affirmed. within the same area in this case did not constitute an improper expansion or substantial change. a change from seasonal to year-round occupancy did not constitute a applied the town’s zoning ordinance in determining that in this particular case, New London v. Leskiewicz, 110 N.H. 462, 467 (1970). The trial court properly increased use will have on other property. Frost, 231 A.2d at 448; see also facts of the case, the terms of the particular ordinance, and the effect that the permitted nonconforming use, consideration must be given to the particular mindful that, in determining whether an activity is within the scope of a generally 1 Anderson’s American Law of Zoning § 6. p. 5 50 (4th ed. 1996). We are plaintiffs’ property, one on either side and three across the road, are year- See id.; Frost, 231 A.2d at 448. See full-time residents live on the road. In fact, five of the structures nearest the road’s narrow width in the winter, this problem already exists because many ordinance, the increase in the amount or intensity of the nonconforming use town’s responsibility. While fire and police access is diminished due to the We agree with the trial court that under the terms of the zoning

the nonconforming use”). the landowner will be allowed to increase the volume, intensity or frequency of (“[w]here there is no substantial change in the use’s effect on the neighborhood,

plaintiffs’ dwelling is located on a private road, road maintenance is not the neighborhood, roads, municipal resources or the environment. Because the plaintiffs’ dwelling would not substantially affect the surrounding dwelling. Further, the trial court found that year-round occupancy of the At no time did the plaintiffs enlarge or change the actual footprint of the