2007-043, CHURCHILL REALTY TRUST v. CITY OF DOVER ZBA

McNeill, Taylor & Gallo, P.A.

No. 2007-043

Strafford

Apartments, consists of four buildings, each of which includes thirty units. All apartment complex (the Dover Project). The project, known as Granite Village previous owner of the Dover parcel obtained site plan approval for an provides the only means of access to the Rollinsford parcel. In 1972, a land in Dover and an adjacent parcel of land in Rollinsford. The Dover parcel The trial court found the following facts. The petitioner owns a parcel of

Allan B. Krans, Sr.

Superior Court (Mohl HICKS, J. The petitioner, Churchill Realty Trust, appeals an order of the

reverse. building official of the petitioner’s proposed apartment project expansion. We Zoning Board of Adjustment (ZBA), which in turn upheld a denial by the Dover

and orally), for the petitioner.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New 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 On appeal, the petitioner argues, inter

RSA 674:53, II.” including density requirements, apply to the Rollinsford Project pursuant to Rollinsford Project is located in Dover, Dover’s regulations and ordinances,

“the petitioner’s sole street access or sole maintained street access to the In response to the petitioner’s motion to clarify, the court ruled that because

density requirement.

the entire use of the lot to come into compliance with the Dover

eliminates the Dover Project’s non-conforming use, and requires change and expand the current use of the land. This expansion contiguous lot, the additional apartment buildings substantially

When viewing the Dover parcel and Rollinsford parcel as one

under RSA 674:53, I (Supp. 2007). The trial court then concluded: for access, the petitioner may not elect to treat the two parcels as separate lots court first found that because the Rollinsford Project must use the Dover parcel denial and the superior court, in turn, upheld the decision of the ZBA. The failure to comply with the Dover density requirements. The ZBA upheld the The Dover building official denied approval for the Rollinsford Project for

through the Dover parcel. Rollinsford parcel, while sewer, utilities and road access would be provided units in total (the Rollinsford Project). Both buildings would be located on the the construction of two additional buildings containing sixty-three apartment In 2004, the petitioner sought approval in both Rollinsford and Dover for

no density requirements. 2 ‘grandfathered.’” At the time of the trial court’s decision, Rollinsford still had court found that “the Dover Project is a nonconforming use, and thus buildings of 5,000 square feet of land, excluding wetlands, per unit. requirements; (2) concluding that the grandfathered Dover Project must come The trial such an ordinance in 1999, creating a density requirement for multi-family (1) concluding that the Rollinsford Project must comply with Dover’s density nor Dover had an ordinance imposing density requirements. Dover adopted alia, that the trial court erred in: At the time the existing buildings were constructed, neither Rollinsford

subsequently conveyed to the petitioner. and pool on that lot. Both the Dover and Rollinsford parcels were the developer acquired the Rollinsford parcel and constructed a recreation area Sometime after the site plan of the original Dover Project was approved,

so that two of the existing buildings now lie partially within Rollinsford. however, the municipal boundary between Dover and Rollinsford was adjusted of the buildings were constructed within Dover as it existed in 1972. In 1993, not eligible to make the election under RSA 674:53, I. p. 3 other municipality. Thus, we agree with the trial court that the petitioner is the land in one municipality must be used to fulfill access requirements in the boundary as a lot boundary for planning and zoning purposes where, as here, contiguous land in adjoining municipalities from treating the municipal According to its plain language, this paragraph precludes an owner of

state or federal regulations.

uses, set-backs or access, or in order to comply with applicable

whole.” In the Matter of Baker & Winkler intent of the legislature as expressed in the words of a statute considered as a “In matters of statutory interpretation, we are the final arbiter of the

to such matters as lot size, density, frontage, uses or accessory use ordinances or regulations of the first municipality with respect the other municipality or municipalities in order to fulfill the land

requires and is dependent upon land or improvements located in of land or arrangement of structures in one of the municipalities land for purposes of this title unless the existing or proposed use existing boundary between lots, tracts, sites or other divisions of one municipality may treat a municipal boundary line as an interpretation. I. An owner of contiguous land which is located in more than court’s construction of RSA 674:53 (Supp. 2007), they raise issues of statutory statutory scheme, we examine them together. As they challenge the trial 3 Project.” As the petitioner’s challenges are interrelated under the applicable to review matters of access within Dover, as contemplated by the Rollinsford Dover Project and/or the Rollinsford Project, and that Dover is only permitted subsequently enacted Dover Density Requirements are not applicable to the

RSA 674:53, I, provides:

The petitioner argues that under the applicable statutes, “the

de erroneous. We review the superior court’s interpretation of applicable statutes decision on appeal unless it is not supported by the evidence or is legally “Our review in zoning cases is limited. We will uphold the trial court’s

but in the context of the overall statutory scheme. Id. ordinary meanings to words used.” Id. We interpret statutes not in isolation, examine the statutory language, and “where possible, we ascribe the plain and

omitted). novo.” Colla v. Town of Hanover, 153 N.H. 206, 207 (2006) (citations

Project is limited to the issue of access. (3) failing to conclude that Dover’s scope of review regarding the Rollinsford into compliance with Dover’s subsequently-enacted density requirements; and conformance with the enabling legislation.” Britton v. Town of Chester p. 4 State, and the municipality must, therefore, exercise this power in “A municipality’s power to zone property . . . is delegated to it by the

within another municipality. The addition of 63 units in the Town of Rollinsford is an extension of the considered an expansion of a nonconforming use on contiguous land solely are being applied solely to units proposed to be constructed in Rollinsford. . . . unitary development eliminates the illusion that Dover density requirements whether such construction, occurring solely within one municipality, may be apartment units solely within Rollinsford.” The pertinent question, then, is as separate lots under RSA 674:53, I. It asserts that “[t]he existence of a fact that “[t]he proposed Rollinsford Project would result in construction of the because the petitioner cannot elect to treat the Dover and Rollinsford parcels contends that the Dover and Rollinsford Projects are a “unitary development” within Dover . . . .” The trial court granted the petitioner’s requested finding of made to the Dover Project, . . . there is no expansion of a nonconforming use the city based upon construction outside the city limits. The respondent of the non-conforming use in Dover, arguing: “As no improvements are being RSA 674:53 authorizes Dover to find an expansion of a nonconforming use in The petitioner contends that the trial court erred in finding an expansion As no other statute has been cited by the parties, we examine whether 4

S & C, Inc. v. City of Forest Park, 338 S.E.2d 279, 281 (Ga. 1986). city through a determination based upon property use outside the city limits.” 1970). Nor, in general, may a city “restrict an owner’s property rights in the outside city limits.” Roberson v. City of Montgomery, 233 So. 2d 69, 70 (Ala. extent that they seek to impose zoning regulations and restrictions on land a municipality are limited to its territorial boundaries and are invalid to the of any enabling legislation expressly providing otherwise, zoning enactments of N.H. 434, 441 (1991). We accept as a general proposition that “[i]n the absence

language. solid inferential logic, it is not supported by the plain meaning of the statutory requirement.” We conclude that although the trial court’s analysis employs entire use of the lot to come into compliance with the Dover density status; and (5) under the court’s interpretation of RSA 674:53, “requires the use; which (4) strips the Dover Project of its protected nonconforming use Rollinsford Project constitutes a “substantial change and expansion” of that 120 unit apartment buildings substantially located in Dover”; (3) the parcels must be treated as a single lot; (2) “the current use of that lot is the boundary as a lot boundary under RSA 674:53, I: (1) the Dover and Rollinsford in its two orders, concluded that because of the inability to treat the municipal to make the election. The trial court, in a series of inferential steps explained Paragraph I, however, does not specify any consequence of an ineligibility access it “pledged” for the Rollinsford Project. p. 5 from subsequently using the Dover parcel in a way that interferes with the The only application of subparagraph (b) in this case is to restrict the petitioner land to meet the zoning or other requirements of a neighboring municipality. in addition to the municipality’s own ordinances by, in essence, “pledging” that developer may voluntarily subject land within a municipality to requirements ordinance of municipality B would otherwise prevent the construction. Thus, a developer could not later build on that land even though no regulation or open space requirements for purposes of an ordinance in municipality B, the other words, if, for example, a developer uses land in municipality A to meet in a manner inconsistent with the terms under which they were “borrowed.” In that the developer may not subsequently use that land or those improvements municipality to fulfill the requirements of an adjoining municipality, provided provides that a developer may “borrow” land or improvements lying within one requirements in an adjacent municipality.” We agree. Subparagraph (b) which a developer “borrows” land from one municipality to satisfy zoning The petitioner contends that subparagraph (b) addresses the situation in

fulfilled.

enforced by the municipality whose requirements are to be first municipality are no longer fulfilled. This paragraph may be

improvements in a manner such that those requirements of the

the owner’s successors shall not thereafter use that land or those improvements located in an adjoining municipality, such owner or requirements of one municipality, through the inclusion of land or (b) When an owner has fulfilled or proposes to fulfill the

located. the regulations or ordinances of the municipality in which they are (a) All uses of land, buildings, or structures shall comply with

municipal boundary line, provided that: division of land for purposes of this title, notwithstanding the may treat such contiguous land as a single lot, tract, site, or other III. An owner of contiguous land in more than one municipality

Paragraph III of the statute provides:

the language of RSA 674:53 as a whole. the now-single lot. We find such a reading of RSA 674:53, I, inconsistent with RSA 674:53, I, erases the municipal boundary line with respect to the use on development on the single lot.” The implicit premise in this argument is that powers under that statute with respect to that road or highway

p. 6 requirements under RSA 674:41 shall have the same regulatory

an applicant’s sole means of fulfilling the street access located an existing private road or class VI highway that serves as administrative decision. An adjoining municipality in which is

adjoining municipality in the same manner as any other regulation of such adjoining municipality may be appealed in that underlying application. A response which invokes an ordinance or the period provided by this title for approval or disapproval of the

change of use. Response shall be made to such inquiries within

preclude or affect such subdivision, development, construction, or under paragraphs I, III, or IV of this section or otherwise, would

municipalities as to the existence of facts or regulations which,

administrative officials in the adjoining municipality or receiving the application shall inquire in writing to the appropriate highway located in an adjoining municipality, the municipality maintained street access is via a private road or class IV, V, or VI

municipal boundary line, or whose sole street access or sole other division of land whose boundary or portion thereof is a erection or alteration of any structure upon any lot, tract, site or

RSA 674:53, II (emphasis added).

this title for the subdivision, development, change of use of, or Upon receipt of an application for a permit or approval under

same municipality. if the proposed building or development were located within that

II, however, does not alter our interpretation of the statute as a whole. reading RSA 674:53, III(b) in light of RSA 674:53, II. Our reading of paragraph The trial court appears to have reached its contrary conclusion by

155 N.H. 19, 22 (2007). the legislature did not see fit to include.” Chase v. Ameriquest Mortgage Co., and will not consider what the legislature might have said or add language that have so provided. “We interpret legislative intent from the statute as written ordinances of all municipalities in which the single lot is located, it could easily improvements on such a now-single lot be subject to the regulations and pursuant to subparagraph (b). Had the legislature intended that the uses and municipality, except where land or improvements have been “borrowed” lying within a municipality solely to the regulations and ordinances of that III as a whole evinces an intent to subject the uses, buildings and structures ordinances of the municipality in which they lie. We conclude that paragraph structures on that now-single lot must comply with the regulations or one municipality is treated as a single lot, the uses of land, buildings and Subparagraph (a) provides that even when contiguous land in more than adjoining municipality, provided however that the sole issue which p. 7 unless it has been approved by the planning board, if any, of that municipality shall be deemed approved for purposes of this title road or class IV, V, or VI highway located in an adjoining

sole maintained street access is or is planned to be via a private addition, no plat or plan showing land whose sole street access or granted authority over approval of that type of plat or plan. In

sole maintained street access is or is planned to be via a private road or class review to access-related issues. An owner of “land whose sole street access or The emphasized language clearly limits the adjoining municipality’s

included municipalities in which the planning board has been this title p. 7 unless it has been approved by the planning boards of all municipality in this state shall be deemed approved for purposes of

No plat or plan showing land or streets in more than one 7

filed in the first municipality. Id otherwise, would preclude or affect” the project for which the application was any “facts or regulations which, under paragraphs I, III, or IV of this section or another municipality to inquire of the second municipality whether there are RSA 674:53, IV (emphasis added). municipality receiving an application for a permit or approval on land adjoining Paragraph II is a notice and enforcement provision. It requires a proposal upon it. be the adequacy of such street access, and the impact of the may be addressed or regulated by the adjoining municipality shall

provides: Our interpretation is bolstered by paragraph IV of the statute, which

municipality “in the same manner as any other administrative decision.” Id

in which the “borrowed” land lies, for approval to build on that land. municipality can object to the developer’s later application, in the municipality to which a developer has “lent” land for open space requirements in that “borrowing” scenario previously discussed. Thus, for example, a municipality light of the statute as a whole, the language envisions a situation such as the all of the regulations or ordinances of the second municipality. Rather, read in access to the Rollinsford Project is located in Dover.” We disagree. We do not read this language to subject the project in the first municipality to Project” because “the petitioner’s sole street access or sole maintained street. and ordinances, including density requirements, appl[icable] to the Rollinsford that case, provides that the response may be appealed in the second The trial court concluded that this paragraph made “Dover’s regulations municipality’s response may invoke one of its regulations or ordinances and, in . The paragraph acknowledges that the second municipality through or by which the only maintained public class I and II p. 8 regulations, RSA 674:53, V(b); and (3) grant abutter status to an adjoining 674:53, V(a); (2) allow a planning board to waive or vary its road access the “borrowing” of land or improvements in an adjoining municipality, RSA application solely because the lot straddles a municipal boundary or proposes The remaining provisions of RSA 674:53: (1) prohibit disapproval of an

Weare Land Use Assoc. v. Town of Weare 8 presume that the legislature would not pass an act leading to an absurd result, improvements therein. See matter how slight the overlap into the neighboring municipality. Because we ruling of law that “RSA 674:53 confers jurisdiction to each municipality for the to prevent or otherwise regulate the entire project in the first municipality no similarly construed this paragraph, as it granted the petitioner’s requested respondent’s proposed construction would allow the neighboring municipality with its regulations or ordinances. We note that the trial court appears to have municipality, or “lent” to that municipality to fulfill its requirements, comply of adjoining municipalities could irreconcilably conflict. In addition, the determining whether the uses of land, buildings, or structures located in that unworkable, as it is not difficult to imagine a situation in which the regulations consistently with RSA 674:53, III, that each municipality is responsible for municipality is only access.” We believe such a statutory scheme would be subject matter within its jurisdiction.” We construe this language to mean, municipalities with the exception of the situations where the impact upon a that “[e]ach land use board shall be responsible for rendering a decision on the RSA 674:53 provides for full compliance with the regulations of all involved development of property.” RSA 674:53, VI. Subparagraph (b) provides in part, reject the respondent’s construction. The respondent urges an alternative construction: “Read as a whole, than one municipality have jurisdiction over a proposed use, subdivision, or, 153 N.H. 510, 511-12 (2006), we applicant may petition for joint review “[w]hen local land use boards from more To similar effect is paragraph VI of the statute, which provides that an

N.H. 5 p. 9 9, 61 (1937) (quotations and citation omitted). word, shall be superfluous, void or insignificant.” State v. Wilton Railroad, 89 to the intent of the legislature, and, if possible, so that no clause, sentence or statute should be so construed that it may have a reasonable effect, agreeably because we read a statute so “as to give every part its due weight. Every emphasized language in paragraph IV. We reject such an interpretation ordinances and regulations of the adjoining municipality, it would nullify the municipal boundary line and subject all of the contiguous land to the RSA 674:53, I, were interpreted, as the respondent advocates, to erase the making the election in RSA 674:53, I, to treat the parcels as separate lots. If owned the land through which access was contemplated, be precluded from IV, V, or VI highway located in an adjoining municipality,” id., would, if he also 9

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, J J.,

further proceedings consistent with this opinion. whole. Accordingly, we reverse the trial court’s decision and remand for in these remaining provisions alters our interpretation of RSA 674:53 as a highway access for the proposed project is provided, RSA 674:53, VII. Nothing