2007-219 & 2008-064, DOVARO 12 ATLANTIC, LLC v. TOWN OF HAMPTON

In these consolidated appeals, the respondent, Town of

Mark S. Gearreald, of Hampton, by brief and orally, for the respondent.

orally), for the petitioner. Casassa and Ryan, of Hampton (Robert A. Casassa on the brief and to press. Errors may be reported by E-mail at the following address:

2008-064 editorial errors in order that corrections may be made before the opinion goes Nos. 2007-219 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

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 deemed a preexisting nonconforming use. p. 2 for dwelling units since before the zoning ordinance was enacted, this use is

emergency access.”

not “assured perpetual existence by easement.” Because the lot has been used

egress” and jeopardize public health and safety “because of the difficulty with

nonconforming to the extent that the required parking spaces, if not onsite, are driveway which affords satisfactory ingress and egress.” It is also eighteen feet and are not “connected with a street or immediately by a surfaced regardless of the form of ownership of the units.

would perpetuate “a public nuisance with respect to parking ingress and

Town’s motion for reconsideration, the trial court clarified: 2

would consist of two rows of cars stacked three deep.

nonconforming to the extent that any onsite parking spaces are not nine feet by be a nuisance or safety hazard – must be permitted to continue, nonconforming use of its property – which the board did not find to application upon the ground that converting the units to condominium units on Atlantic Avenue to condominiums. [The petitioner’s] present use would be expanded. In May 2006, upon rehearing, the board denied the certificates of occupancy for year-round use, the preexisting nonconforming

and modified the board’s decision. In its February 2007 order denying the

parking space, one of which would abut the street while the remaining six

at the property typically have leased parking spaces offsite. The lot is also accommodate two parking spaces for each of the seven dwelling units. Renters 2006, required two parking spaces for each dwelling unit. The lot cannot petitioner’s] application to convert the apartments in its buildings The Planning Board committed legal error when denying [the a lack of accessible parking for each unit and that, if the petitioner sought

The petitioner appealed to the superior court, which partially reversed

units from seasonal to year-round. Each condominium was to have its own change to the footprint of the buildings, but proposed changing the use of the board to convert the units in October 2005. The application proposed no

the terms of the Town’s zoning ordinance, which, until it was amended in

The board initially denied the application upon the ground that there was

condominium project with seven units. It filed its first application with the The petitioner seeks to convert the apartments and cottage into a

is a nonconforming use because the lot has too few parking spaces to satisfy the rear of the lot, is a three-bedroom cottage. Use of the lot for dwelling units The first is a three-story structure with six apartments; the second, located at

square foot lot on Atlantic Avenue in Hampton Beach with two buildings on it. The record reflects the following facts. The petitioner owns a 5000 of off-site parking was part and parcel of the pre-existing, non conforming use

p. 3 association “to secure offsite parking for the other units in perpetuity.” parking for some units in perpetuity. The Town contends that “the utilization single space in the other column. The board required the condominium safe.” These spaces consisted of three stacked spaces in one column and a

reasonably based.

board’s decision to require the condominium association to secure offsite

access.” The board deemed the remaining four spaces to be “inoffensive and

determine whether there is evidence upon which they could have been

board’s decision was unreasonable. premises.

The Town first argues that the trial court erred when it reversed the

egress” and jeopardize public safety “because of the difficulty with emergency Id.

to determine whether it agrees with the planning board’s findings, but to again appealed to this court, and its two appeals were consolidated.

the burden of demonstrating that, by the balance of the probabilities, the might need to have other vehicles moved each time they parked or left the unreasonableness or an identified error of law. Id. The appealing party bears have direct ingress and egress to the street; owners using the other six spaces prima facie lawful and reasonable and cannot set aside its decision absent three stacked spaces and the other would contain five. Only two spaces would superior court is obligated to treat the factual findings of the planning board as Superior court review of planning board decisions is equally limited. Id. The appeal unless they are unsupported by the evidence or legally erroneous. Id. v. Town of Derry, 157 N.H. 441, 447 (2008). We will uphold the decisions on Our review of the trial court’s decisions is deferential. Derry Senior Dev. would perpetuate “a public nuisance with respect to parking ingress and

the condominium association to secure perpetual offsite parking. The Town decision to eliminate four parking spaces but reversed its decision to require The petitioner appealed to the superior court, which upheld the board’s

parking spaces, stacked in two adjacent columns. One column would contain

offensive.” The Town appealed to this court. Of the eight parking spaces proposed, the board found that four spaces board to grant the petitioner’s application “without the parking spaces it deems spaces would create a nuisance and safety hazard. The court ordered the

Under the revised proposal, the seven condominium units would have eight application to the board, which the board conditionally approved in April 2007. In light of the trial court’s ruling, the petitioner submitted a revised

petitioner’s application in its entirety on the ground that the proposed parking With respect to parking, the court ruled that the board could not deny the structure.”

p. 4 conforming use or structure once [it] changes to a conforming use or

put to before alteration, or to be permitted to revert to its original nonpurpose, or in a manner, substantially different from the use to which it was and provides that no such use or structure “may be altered for use for a

ordinance prohibits “[t]he expansion of non-conforming uses and structures,”

now conform in all respects to the ordinance’s parking requirements.

provisions of the Ordinance for the district in which it is located.” The subsequent amendment thereto, . . . which does not conform to one or more and lawfully occupied at the time of the enactment of this Ordinance or any

protected status, the court should have ruled that the petitioner’s use must

preserving it for our review.

notice of appeal.

Once the petitioner’s preexisting nonconforming use was stripped of its petitioner’s property did not have to comply with the Town’s zoning ordinance. done so, the Town argues, the trial court then erred by ruling that the record that demonstrates that it raised this issue in the trial court, thereby spaces located nearby, but off site?” Further, the Town has not provided a its own finding that ‘[t]ypically, renters at the . . . property had leased parking

conflict with the Town’s zoning ordinance. The Town’s zoning ordinance

supported the trial court’s finding is not one of the questions in the Town’s

the petitioner’s preexisting nonconforming use of its protected status. Having

not fundamentally alter the property’s present usage’ . . . was inconsistent with

The Town provides no support for this assertion, which appears to

use of the property. that the record does not support the trial court’s finding, whether the record assertion that using offsite parking was part of the petitioner’s nonconforming nonconforming use of the land. Although, in a footnote, the Town contends assertion, use of offsite parking was not part of the property owner’s

spaces and eliminate the remaining onsite spaces, the court, in effect, stripped when the trial court upheld the board’s decision to retain four onsite parking leaving only some of the board’s parking limits intact. The Town asserts that decision erroneous, where its conclusion that the proposed conversion ‘would The Town next argues that the trial court overstepped its bounds by

250 (2004). Therefore, we accept the trial court’s finding, and reject the Town’s

offsite parking.

accepted this finding in its notice of appeal by asking: “Was the trial court’s

See Sup. Ct. R. 16(3)(b). Indeed, the Town appears to have

The trial court found, however, that the tenants of the property – not the

right to continue its preexisting nonconforming use when the board required of this site,” and, thus, the board acted consistently with the petitioner’s vested p. 5 5

substantial change in the nature or purpose of a preexisting nonconforming

before alteration.” or in a manner which is substantially different from the use to which it was put Under the common law, to determine whether there has been a

common law. See Hurley, 143 N.H. at p. 5 571. cf. Severance v. Town of Epsom, 155 N.H. 359, 362 (2007), we look to our constitutes a substantially different use or the factors that must be examined, 567, 571 (1999). Because the Town’s zoning ordinance does not define what and circumstances of the particular case. Hurley v. Town of Hollis, 143 N.H. nature or purpose of the preexisting nonconforming use turns upon the facts Whether a proposed use would constitute a substantial change in the

the petitioner did not file a cross-appeal raising that issue. zoning ordinance will apply “to any alteration of a building or use for a purpose parking space requirements (decision to eliminate the “offensive” parking spaces in the first place because not apply to it unless the use has substantially changed. See RSA 674:19. The to change his preexisting use of the lot to conform to the rest of the ordinance’s N.H. 328, 330 (2001). The zoning ordinance prohibiting the use generally will spaces that lack sufficient ingress and egress, it does not require the petitioner ordinance prohibiting that use was adopted. Town of Salem v. Wickson, 146 compliance with A nonconforming use is a lawful use existing on the land when the owner in this case had to bring its preexisting use of the property into preexisting use into compliance with one parking requirement, the property disagree. substantially changed or expanded the petitioner’s nonconforming use. We Constitution. that converting the seasonal apartments into year-round condominiums The Town next asserts that the trial court erred when it declined to find nonconforming use is a vested right, secured not only by statute,

We do not address whether the trial court erred by upholding the board’s

agree that the ordinance will prohibit the petitioner from reverting to parking all such requirements.

(199 p. 5 5). In light of all of the above, we decline to hold that having brought its

Ray’s Stateline Market v. Town of Pelham, 140 N.H. 139, 143

674:19 (2008), but also by Part I, Articles 2 and 12 of the New Hampshire

have “perpetual existence by easement”). Additionally, the right to continue a

immediately to a driveway that affords sufficient ingress and egress. While we the ordinance’s requirement that all parking connect with a street or parking spaces brought the parking on the petitioner’s lot into compliance with In this case, the board’s decision to eliminate four of the proposed eight conversion condominium. p. 6 exception, or variance, as the case may be, prior to becoming a

parking to satisfy the zoning ordinance is the same regardless of whether the property is located shall secure a special use permit, a special

case, the use of the lot for dwelling units even though the lot lacks sufficient 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

only if the conversion substantial change in the petitioner’s preexisting nonconforming use. In this converting the seasonal apartments to year-round condominium units was a different form of ownership. . . . Nevertheless, cities and towns may

land, we examine the same factors that determine whether there has been a

special exception or variance for the project, such a requirement may be denied

We conclude that the trial court did not err when it declined to find that permit a physically identical project or development under a London Zoning Board, 130 N.H. 510, 516 (1988). extension of a nonconforming use.” New London Land Use Assoc. v. New mere change from tenant occupancy to owner occupancy,” however, “is not an

To determine whether the conversion would have an actual effect on the use of

425, 428 (1991). While a municipality may require a special use permit, allowed to avoid disparate treatment. Cohen v. Town of Henniker, 134 N.H. identical” to the apartment units, the condominium conversion must be neighborhood. as rental properties, and where the condominium units would be “physically differently by any zoning or other land use ordinance which would Under this statute, where the preexisting nonconforming use is use of the units inherent therein. Neither shall any condominium be treated

and (3) whether the use will have a substantially different effect upon the or whether it constitutes a use that is different in character, nature, and kind; condominiums as such by reason of the form of ownership at issue is merely a different manner of using the original nonconforming use No zoning or other land use ordinance shall prohibit

mindful of RSA 356-B:5 (1995), which provides, in pertinent part: Because the proposed use is a condominium project, we must also be

proof. Town of Salem, 146 N.H. at 330. asserting that a proposed use is not new or impermissible bears the burden of that permit the continuance of preexisting nonconforming uses, and the party

Hurley, 143 N.H. at 571-72. We strictly construe provisions

nature and purpose of the preexisting nonconforming use; (2) whether the use use, we consider: (1) the extent to which the use in question reflects the change or expansion of the petitioner’s nonconforming use.

p. 7 apartments to year-round condominium units did not constitute a substantial

We, thus, affirm the trial court’s determination that converting the seasonal 7 was not a substantial change in the petitioner’s preexisting nonconforming use. have, we conclude that the trial court did not err when it ruled that this change

substantially different effect on the neighborhood than seasonal parking would

street.” which “may well interfere with the process of clearing snow from the public

the record compelled a finding that year-round onsite parking would have a were “inoffensive and safe.” Because the Town has failed to demonstrate that BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred. to the board. Indeed, the board itself found that the four onsite parking spaces

owners to find parking on the street so that snow can be removed from the lot,

the petitioner’s preexisting nonconforming use. allegedly substantially different effects on the neighborhood was ever presented condominium units does not constitute a substantial change or expansion of The Town, however, has failed to demonstrate that evidence of these

round will make the parking spaces more crowded and will require the unit The Town contends that changing the onsite parking from seasonal to yearsubstantial change in use, not the year-round occupancy of the dwelling units. The Town asserts that it is the year-round parking that constitutes a

trial court that converting the seasonal apartments to year-round does the Town argue that such evidence exists. Accordingly, we agree with the substantially affect the surrounding neighborhood. See id. at 362-63. Nor was no evidence in the record that year-round occupancy of the units will at 362. The identical nonconforming use is carried on. See id. Further, there dwelling units are occupied seasonally or year-round. See Severance, 155 N.H.