2008-674, Rita Sutton & a. v. Town of Gilford & a.

Dempsey on the brief), for Bank of America, N.A., as amicus curiae. Wiggin & Nourie, P.A., of Manchester (Thomas J. Pappas and Mary Ann

and orally) for respondent Barbara Aichinger. Patrick Wood Law Office, PLLC, of Laconia (Patrick H. Wood on the brief

A. Spector on the brief, and Ms. Spector orally), for respondent Town of Gilford. Mitchell Municipal Group, P.A., of Laconia (Walter L. Mitchell and Laura

Harris on the brief and orally), for the petitioner. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. RITA SUTTON & a.

No. 2008-674 editorial errors in order that corrections may be made before the opinion goes Belknap Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 proceed without the direction and approval of the Town Planning Board and

p. 2 indicate that the property is a single lot.

that the properties be separately assessed, but that he had no authority to

maps of the town and was taxed as a single lot. The records of the Club also

merged by a mapping company, and informed her that he would recommend Appraiser noted that it appeared that the parcels had been automatically deed, at the time she purchased the property, it was labeled “lot 7” on the tax comment on whether she could treat the parcels as separate lots. The Town lot 7. Although former lots 9 and 10 are described separately in Aichinger’s conforming lots, the Town merged lots 9 and 10 to create a single lot, known as

records that a previous owner had voluntarily merged the property, but did not

the Town’s zoning ordinance that automatically merged contiguous non-

Appraiser informed Aichinger that they did not see any indication in their had been merged by request of the previous owners. The CEO and Town approximately 0.5 acres. Sometime in the 1980s, pursuant to a provision in waterfront parcels. Specifically, she inquired whether the two adjoining parcels part. approximately 0.6 acres, and lot 10, which contained a residence, is which contained a single structure consisting of a garage and guest house, is

hearing to present evidence on the issues of municipal estoppel and merger; At one time, the property was comprised of two parcels (lots 9 and 10). Lot 9, from enforcing its zoning ordinance; (4) denying her request to reopen the

status of lot 7. She first contacted the Town Code Enforcement Officer (CEO)

among other things, enforces restrictive covenants on land use on the island. of Gilford’s (Town) zoning ordinance; (3) ruling that the Town was not estopped size, and is part of the Governor’s Island Club (Club), an association that, Single Family Residence (SFR) district, where lots are required to be one acre in

In 2006, Aichinger sought clarification from the Town regarding the legal

the grounds that Aichinger’s property had been merged pursuant to the Town her administrative remedies; (2) granting declaratory judgment to Sutton on Island in Gilford, which Aichinger purchased in 2002. The property is in the (1) denying her motion to dismiss the petition because Sutton failed to exhaust

At issue in this case is lakefront property (the property) on Governor’s Aichinger’s non-conforming lot. Aichinger cross-appeals superior court orders:

request for a permanent injunction to prevent construction and development of judgment on Sutton’s petition for a writ of mandamus; and (2) denying Sutton’s orders: (1) granting respondent Barbara Aichinger’s motion for summary and attorney-in-fact, Glenn Sutton, appeals Superior Court (Smukler, J.) BRODERICK, C.J. The petitioner, Rita Sutton, by and through her son p. 3 Edgewater Drive.

p. 3 Edgewater Drive. Ms. Aichinger also sought buyers for 554 mortgaged 554 Edgewater Drive to fund the construction for 558 Edgewater Drive from respondent Governor’s Island Club, and

the tax maps show residual evidence of the former lot layout.

Drive, received approval for construction of a new home on 558

the Director of Planning sent a follow-up letter, stating, in relevant part:

that this property was not the subject of a bona fide merger, and

contracted for the construction of a new home on 558 Edgewater parcels, blasted foundation holes for new homes on both parcels, 558 Edgewater Drive, secured permits for a new driveway on both

believed “all automatic mergers were effectively voided.” On January 15, 2007, mergers.” He also stated that “[t]he courts threw out that law” and that he involuntarily at the time that the Town had a law requiring such automatic lots, not a single merged lot, which further attests to the notion is no longer on the books. Your deed still describes two separate old zoning ordinance that was thrown out in a court challenge and

there were once two lots,” and that he presumed that “the lots were merged lot 9 and one on former lot 10. Specifically, the record shows that she:

Registry of Deeds. Such automatic mergers were required by an

for what used to be lot 10 (see attached map).

Edgewater Drive, obtained a new septic design and system permit

even on some of the older tax maps, but that the maps “clearly show signs that buildings on lot 7 and to construct two new single-family homes, one on former had voluntarily merged the lots, that lots 9 and 10 appear to have been merged he had reviewed her file, that he had found no evidence that previous owners automatically merged only on the Town tax maps and not at the

used to be lot 9 (the more northerly lot), and 558 Edgewater Drive

obtained a permit to demolish the existing house on 558

Thereafter, Aichinger began work related to a plan to remove all existing

Director of Planning responded to Aichinger’s request by email. He stated that that [the parcel] is legally two (2) lots. It appears that the lots were

Addresses for the two lots will be 554 Edgewater Drive for what

matter and to request a second tax lot ID number. On October 19, 2006, the This letter is sent to confirm that the Town Assessor and I agree

In April 2006, Aichinger contacted the Director of Planning to review the

question to the Town Director of Planning and Land Use (Director of Planning). Board of Selectmen. The Town Appraiser and CEO then referred Aichinger’s litigation risk where there existed a non-frivolous claim of estoppel.

p. 4 good faith, because the Town had entered into the Agreement to reduce a

settle with Aichinger and, in fact, had exercised its discretion in doing so in enforced was not clear and apparent. Rather, the Town had the discretion to appropriate remedy in this case because Sutton’s right to have the ordinance

judgment on Count III (mandamus), concluding that mandamus was not an

point could be subject to removal at the owners expense should the court

damaged by the alleged zoning violation. The trial court granted summary

“Subject property is currently involved in litigation any construction at this

that a material issue of fact existed as to whether Sutton would be specially (injunctive relief), II (declaratory judgment) and IV (attorney’s fees), reasoning summary judgment. The trial court rejected the motion relating to Counts I

single-family home with a garage but contained the following warning: purchase and sale agreement for that property. The permit allowed a new building permit on behalf of a party with whom she had entered into a

early October, Aichinger filed an answer and counterclaim, and later moved for

construction of a home on 554 Edgewater Drive, former lot 9. She sought the

to enforce its zoning ordinances; and (5) attorney’s fees against the Town. In enforcing its merger ordinance; (4) a mandamus against the Town requiring it merged; (3) a declaratory judgment that the Town is not estopped from

clearly recognize that a landowner must take action to have property merged. municipal estoppel. She also contended that RSA 647:39-a and RSA 75:9 Planning stood, the Town might be liable for money damages based upon Aichinger did not pursue her ZBA appeal. Also in October, Aichinger obtained a building permit for the

Aichinger was collaterally estopped from litigating whether lots 9 and 10 were

Selectmen), contending that if the May 2007 decision of the Director of two lots nor . . . participate in any efforts to merge the two lots.” As a result, the Town “shall take no action and shall not support any action to merge the continue to assess them as separate tax parcels under NH RSA 76:9”; and (2)

violation of the Gilford Zoning Ordinance; (2) a declaratory judgment that seeking: (1) an injunction to prevent Aichinger from developing the property in In July 2007, Sutton, an abutting landowner, filed suit in superior court,

also began negotiations with the Gilford Board of Selectmen (Board of appealed this decision to the Gilford Zoning Board of Adjustment (ZBA). She been in error, and that Aichinger, in fact, owned a single, merged lot. Aichinger consists of two separate and distinct parcels of land and the Town has and will Specifically, the Town and Aichinger agreed, inter alia: (1) that “the property into a settlement agreement (Agreement) with the Board of Selectmen. On June 21, 2007, prior to her ZBA appeal hearing, Aichinger entered

after consulting with town counsel, he realized that his previous advice had In May 2007, the Director of Planning wrote to Aichinger indicating that issuance of this building permit to the ZBA.

p. 5 whether she was found to own one lot or two. Sutton did not appeal the

the Town stating that Aichinger was permitted to rebuild her guest house

on the merits; and (2) Sutton was not required to exhaust her administrative

the email a copy of the amended building permit and the correspondence from a building permit had been issued for 554 Edgewater Drive. She attached to December 15, 2007, Aichinger sent an email to Sutton’s son, advising him that

use” would specially damage Sutton was a substantive issue to be determined

issuance of an occupancy permit for this replacement structure.” On

motion to dismiss, finding that: (1) whether construction “on a nonconforming permit barred her from obtaining an injunction. The trial court denied the contended that Sutton’s failure to appeal the issuance of the amended building

language: “Preexisting grandfathered dwelling must be demolished prior to the garage to replace existing single family dwelling,” and included the following The amended permit stated that it was for a “[n]ew single family home with

had not suffered “special damages” under RSA 676:15. Aichinger further

the structure being built will not have to be removed.

building permit without the litigation warning contained in the earlier permit.

the Town’s zoning ordinance, and that, therefore, as a matter of law, Sutton building permit indicated that construction of the new house would not violate Drive. She argued that the fact that the Town had issued the amended 5 the condition that in either outcome of the litigation one lot or two

reflect a structure replacement.” On October 29, the Town issued an amended CEO also stated in the letter that the building permit would “be amended to preexisting dwelling as long as it complies with all other requirements.” The

an injunction to prohibit construction and development at 554 Edgewater the building permit to be amended to strike the warning and add use which is my fully functional guest home. I therefore would like expansion within the limits of the property of my nonconforming

Edgewater, . . . you are permitted to replace, enlarge, and/or relocate a

In March 2008, Aichinger filed a motion to dismiss Sutton’s request for

litigation. Per the Gilford Zoning Ordinances I am allowed an

is considered a separate lot or is determined to be part of the property at 558 cottage. By letter, she stated, in pertinent part,

permit that you issued October 3, 2007 concerning the pending

The CEO then informed Aichinger by letter that, “Whether this subject property informing him that she intended to replace and enlarge the existing guest

. . . I am writing this letter to address the condition of the building

Subsequently, Aichinger asked the Town CEO to amend the permit,

recommend starting any construction until all litigation is resolved.” determine that this lot is not a sep[a]rate lot. The Town of Gilford does not judgment that Aichinger owns only one lot.

p. 6 amended building permit, but does not bar her request for a declaratory Sutton sought to enjoin the construction authorized by the October 29, 2007 exhaustion doctrine bars Sutton’s request for an injunction to the extent that exhaust her administrative remedies. We disagree, and hold that the

Sutton’s entire petition should have been dismissed because she failed to

Aichinger owns only one lot. On appeal, Aichinger appears to argue that

followed.

amended building permit, but not her request for declaratory judgment that doctrine barred Sutton’s request to enjoin the construction authorized by the the trial court’s two orders was essentially a ruling that the exhaustion

municipal estoppel and the merger issue. This appeal and cross-appeal

and offered “no persuasive explanation for this failure.” The practical result of

and Aichinger’s request to reopen the hearing to introduce evidence relating to request for attorney’s fees against the Town, the parties’ motions to reconsider, injunctive relief to bar the planned construction. The trial court denied the against Aichinger, the Town, and Governor’s Island Club seeking, to treat Aichinger’s property as two lots, Sutton filed suit in superior court after Aichinger and the Town reached the Agreement in which the Town agreed

that the amended permit was valid because Sutton never appealed the permit, 6 court denied the motion. Later, in its order on the merits, the trial court ruled original or amended building permits to the ZBA in the fall of 2007. The trial the Gilford Zoning Ordinance; and (2) a declaratory judgment that Aichinger

of the property’s merged status, and therefore denied Sutton’s request for

considered Aichinger’s motion to dismiss reflect the following. In July 2007,

exhaust her administrative remedies because she did not appeal either the an injunction to prevent Aichinger from developing the property in violation of

property. The trial court further ruled that Aichinger had the right to replace only way for Aichinger to create two lots would be to subdivide the merged The pleadings and affidavits before the trial court at the time it

judgment and injunctive relief, in part, on the grounds that Sutton did not remedies. Aichinger had moved to dismiss Sutton’s petition for declaratory have been dismissed because Sutton failed to exhaust her administrative

not municipally estopped from treating the property as one parcel, and that the

We first address Aichinger’s contention that Sutton’s petition should

Following a hearing on the merits in May 2008, the trial court ruled that

unique and not limited to procedural or factual issues.” remedies before the ZBA because the issues in this case were “somewhat persuasive explanation” for failing to do so. p. 7 failed to appeal this permit. According to the trial court, she had “no preexisting dwelling as long as it complies with all other requirements.” Sutton

or two, Aichinger was permitted to “replace, enlarge, and/or relocate a

officials.”

the Town which stated that, regardless of whether she is found to own one lot

discretion,” bedroom residence, in the manner she had originally proposed.

ordinance, matters that belong in the first instance to the designated local

her email a copy of the amended building permit and the correspondence from that when Aichinger emailed Sutton’s son in December 2007, she attached to

remedies, a petition for injunctive relief will not lie.”

42 (1998), that a party is not required to exhaust administrative remedies. appealing to the courts.

Pheasant Lane Realty Trust v. City of Nashua, 143 N.H. 140, 141question of law rather than a question of the exercise of administrative structure,” and authorized Aichinger to rebuild her guest house, as a five

demolished prior to the issuance of an occupancy permit for this replacement judgment in hearing the appeal. Id. It is only in limited situations, as “where the issue on appeal is a contained the following language: “Preexisting grandfathered dwelling must be decisions so that the superior court may have the benefit of the zoning board’s applicable when . . . substantial questions of fact exist concerning a city zoning zoning board the first opportunity to pass upon any alleged errors in its agency autonomy, and promoting judicial efficiency,” and “is particularly policies of encouraging the exercise of administrative expertise, preserving decision of the zoning board, the party may appeal to the superior court. of whether she was found to own one lot or two. Testimony and exhibits show of Rochester, 118 N.H. 778, 782 (1978). This rule is “based on the reasonable

by the action of a city official in zoning matters fails to exhaust statutory

Generally, parties must exhaust their administrative remedies before

intent to rebuild her guest house. Aichinger’s affidavit stated that the permit RSA 677:4 (Supp. 2009). This legislative scheme is intended to give a local

RSA 676:5 (2008); RSA 677:3 (2008). Should a party be dissatisfied with the amended building permit did, in fact, authorize Aichinger to rebuild, regardless be made to the zoning board of adjustment. See RSA 674:33 (Supp. 2009); Ordinarily, challenges to decisions regarding building permits must first

2007, advising him that a building permit had been issued, and stating her of her motion to dismiss, Aichinger sent Sutton’s son an email in December amended building permit. According to an affidavit Aichinger filed in support

Evidence introduced at the hearing on the merits confirmed that the

Three months later, in October 2007, Aichinger sought, and was issued, an was collaterally estopped from litigating whether lots 9 and 10 were merged. the designated local officials.”

p. 8 concerning a . . . zoning ordinance, matters that belong in the first instance to local zoning ordinance is precisely the kind of issue that involves “fact[s] . . . could arguably be used as a primary residence was in accordance with the

authorized Aichinger to replace her relatively modest structure with one that

suited to judicial, rather than administrative treatment. As we stated in

purportedly grandfathered structures on a single lot. Whether the permit that property had merged, and not upon factual issues related to replacing petition sought to bar construction based upon a legal argument that the

situation, as Sutton argues, in which the issues in the case were more properly porch and an attached three-car garage, violates the ordinance. This is not a that has a 2295 square foot ground floor, five bedrooms, two stories, a covered

months before Aichinger obtained the amended building permit. As we have

construction of the same five bedroom structure. Nevertheless, Sutton’s

grandfathered” 600 square foot guest house with a “replacement structure”

court action to determine the status of Aichinger’s property began three

Aichinger’s request to rebuild her guest house, apparently authorize the

whether a permit authorizing Aichinger to replace her “preexisting the zoning board in an appeal of the October 29 permit would have been was a “preexisting grandfathered dwelling.” Therefore, the only question before Aichinger’s request to dismiss Sutton’s remaining claims. Sutton’s superior

single-family home, and the amended permit, granted in response to both the original permit, granted in response to Aichinger’s request to build a guest house could arguably be used as a single-family residence. Furthermore,

construction of a “replacement structure” on the grounds that the guest house upon Aichinger’s owning two lots. Rather, the permit authorized the We conclude, however, that the trial court did not err when it denied The amended permit, however, was not predicated, as Sutton now argues, Aichinger was not entitled to build a second residential structure on one lot. V.S.H. Realty, Inc., 118 N.H. at 782.

constructing a single-family residence, and that the structure that replaced the

superior court construction undertaken pursuant to that permit.

and Sutton sought an order enjoining construction on the grounds that

We acknowledge that Sutton’s petition sought to enjoin Aichinger from

permit to the ZBA, she is barred by the exhaustion doctrine from challenging in zoning board. Therefore, because Sutton failed to appeal the amended building treatment or resolution, but is one that is routinely addressed by the local with the ordinance is not a question that is particularly suited to judicial McNamara, 157 N.H. at 76, the question of whether a building permit complies

injunctive relief challenged Aichinger’s right to treat her property as two lots, a primary residence, complied with the ordinance. Sutton’s petition for replace her relatively modest structure with one that could arguably be used as

permit to the ZBA to challenge whether the permit, authorizing Aichinger to We conclude that Sutton was required to appeal the amended building merged was pursuant to the Town ordinance’s automatic merger provision.

p. 9 legislative history, Aichinger argues that under RSA 674:39-a, the decision to contained in the Town’s merger ordinance. We disagree.

board for a voluntary merger, the only way the property could have been

conflicts with RSA 674:39-a and is, therefore, unenforceable. Relying upon provisions; and (2) the trial court failed to properly apply the exception the landowner, and such lots cannot be automatically merged by local zoning order to meet the minimum square-footage requirements of a zoned district. merge nonconforming lots in the same ownership is one to be made solely by

present or former owners of lots 9 and 10 had ever applied to the planning contiguous undeveloped lots in common ownership. 15 P. Loughlin,

validity of the provision. Essentially, she contends that automatic merger See Gilford Town Ordinance § 9.1.1. On appeal, Aichinger challenges the undeveloped lots of substandard size that are held in common ownership in ruling that the property had merged because: (1) the decision of whether to

Because there was no evidence presented in this case that either the Hampshire, contains a provision that requires the merger of substandard (R.I. 1989). variance or an exception. R.J.E.P. Associates v. Hellewell, 560 A.2d 353, 355 developed as individual non-conforming lots unless the landowner applies for a § 49:16, at 49-31 (2005). Substandard contiguous lots generally cannot be See 3 A.H. Rathkopf et al., Rathkopf’s The Law of Zoning and Planning

2000). Merger provisions generally require the combination of two or more provisions of the Ordinance. Aichinger asserts that the trial court erred in Hampshire Practice, Land Use Planning and Zoning § 11.07, at 157 (3d ed.

The Gilford Zoning Ordinance, like many zoning ordinances in New

ruled that the property had merged pursuant to the automatic merger We turn now to Aichinger’s argument that the trial court erred when it declaratory judgment that Aichinger owns a single, merged, lot. Therefore, Sutton’s failure to appeal that permit does not bar her request for a III

warrant further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993). (2007), or under the circumstances of this case, are without merit and do not see McKenzie v. Town of Eaton Zoning Bd. of Adjustment, 154 N.H. 773, 776 were not raised below, and therefore have not been preserved for our review, administrative decisions to the ZBA. We conclude that these arguments either continue her litigation” because she failed to appeal certain other Aichinger asserts that the trial court “erred by permitting [Sutton] to

was entitled to rebuild her guest house whether she owned one lot or two lots. stated, the amended permit is predicated upon Aichinger’s assertion that she without subdivision approval. p. 10 such merged parcel shall thereafter be separately transferred and a copy mailed to the municipality’s assessing officials. No

invitation to examine the statute’s legislative history. its designee, shall be filed for recording in the registry of deeds, find nothing ambiguous about the statutory language, we decline Aichinger’s

relevant parcels and endorsed in writing by the planning board or 10 automatically merging such lots pursuant to its zoning ordinance. Because we recorded, but a notice of the merger, sufficient to identify the hearing or notice shall be required. No new survey plat need be

of lots for zoning purposes. municipality from adopting an ordinance providing for the automatic merging

merge contiguous lots, but nothing in its language precludes a town from requiring the merger of contiguous, nonconforming lots in common ownership, regulations, all such requests shall be approved, and no public language that the legislature did not see fit to include.” Having determined that nothing in RSA 674:39-a precludes a town from

mergers by owners of two or more parcels of land, but does not prohibit a 255. We agree with the trial court that RSA 674:39-a governs voluntary

The plain language of RSA 674:39-a gives property owners the right to merger would create a violation of then-current ordinances or as written. We will not consider what the legislature might have said, or add RSA 674:39-a (2008). applying to the planning board or its designee. Except where such for municipal regulation and taxation purposes may do so by

and unambiguous, we need not examine its legislative history.

meaning to the words used and discern the legislative intent from the statute approved or subdivided lots or parcels who wishes to merge them Voluntary merger. Any owner of 2 or more contiguous preexisting

words of a statute considered as a whole. RSA 674:39-a reads, in pertinent part, as follows:

Weaver, 150 N.H. 254, 255 (2003).

157 N.H. 642, 653 (2008) (citation omitted). When a statute’s language is plain

“When interpreting the language of a statute, we ascribe the plain and ordinary novo. See Verizon New England v. City of Rochester, 151 N.H. 263, 266 (2004). N.H. 275, 277 (2008). We review the trial court’s interpretation of a statute de

We are the final arbiter of the intent of the legislature as expressed in the

cannot be automatically merged by local zoning provisions. merge nonconforming lots is made solely by the landowner, and such lots ordinance, which reads, in pertinent part, as follows:

p. 11 earlier version applies. Therefore, we apply the current version of the issue was not litigated before the trial court, we decline to consider whether an current version of the ordinance applied to Aichinger’s property. Because the

proceedings in superior court, the parties and the trial court assumed that the

which Aichinger now relies. The record indicates, however, that during the an earlier version of the ordinance, which does not contain the exception upon zoning ordinance applies to this case. The Town asserts that we should apply

decided over twenty years ago.

dimension or frontage, the owner shall be required to merge all

initially adopted in 1962. On appeal, the parties dispute which version of the

more of the lots is nonconforming to this ordinance as to size,

issue in this case has been amended several times since the ordinance was

Island Club Records. Furthermore, Aichinger acquired the property via a single is recorded as a single lot in the town assessing records and the Governor’s single lot. While the parcels are described separately in the deed, the property recitation of the facts and legal analysis in record have the same owner and are contiguous, and one (1) or case was the same shorefront parcel that is at issue in this case. The Contiguous Nonconforming Lots – When two (2) or more lots of question of whether the exception applies, we note that the merger provision at the merger requirement contained in the ordinance. Before turning to the

into the Agreement with Aichinger, the Town had treated her property as a

purposes of our merger analysis because one of the parcels at issue in that

Aichinger argues, however, that her property falls within an exception to

Governor’s Island decision in ruling that lots 9 and 10 were a single merged lot. Town as a single lot. Indeed, the trial court in this case relied upon the a single lot, and that the shorefront parcel was at that time being taxed by the property owner in Governor’s Island recognized that the shorefront parcel was the property has been in common ownership since 1947, that the defendant

the same one we are presented with today, the decision is significant for the 145 N.H. 727 (2001). While the issue we decided in Governor’s Island is not 124 N.H. 126 (1983), as a matter of law.” abrogated by Simplex Technologies v. Town of Newington, evidence and will affirm the trial court’s legal rulings unless they are erroneous See Governor’s Island Club v. Town of Gilford, affirm the trial court’s factual findings unless they are unsupported by the

The evidence in the record supports the trial court’s conclusion that

(citations omitted).

automatically merged the property pursuant to its zoning ordinance. “We will we now consider whether the trial court erred when it ruled that the Town had use” as “[t]he sole, primary, or main use of a lot or building.”

p. 12 “preexisting principal use” within the meaning of the ordinance.

residence of one (1) family.”

turn first to the definition section of the ordinance, which defines “[p]rincipal

garage with attached guest house situated on lot 9 did not constitute a the trial court’s conclusion that the exception does not apply because the construction as a whole, not by construing isolated words or phrases.” does not apply. Therefore, we must determine whether the evidence supports

The ordinance defines a “single family residence” as a “[s]tructure for the of the enacting body. the SFR zone listed in the ordinance is “single family residence.” Id. art. 4. Ordinance art. 3, at 16 (2008). The only relevant permitted “principal use” in which we review Gilford Zoning

To determine the meaning of “lawful and preexisting principal use,” we

Town of Wilmot, 154 N.H. 715, 719 (2007) (citations and quotations omitted).

intended. We determine the meaning of a zoning ordinance from its Implicit in the trial court’s denial of the motion is a ruling that the exception meaning unless it appears from their context that a different meaning was (1977). “[T]he words used in a zoning ordinance will be given their ordinary

491, 494 (2007). Interpreting an ordinance requires us to ascertain the intent

de novo. See Anderson v. Motorsports Holdings, 155 N.H.

preexisting principal use” on each lot applies to her property. The construction of the terms of a zoning ordinance is a question of law,

the lots. motion to reconsider that the trial court had failed to consider the exception. applicability of the exception at trial. However, Aichinger did argue in her exception applies, perhaps because Aichinger did not specifically argue for the Ordinance required to merge the nonconforming lot or lots. § 9.1.1(a). The trial court’s order does not address whether the principal use listed in Article 4 on each lot, the owner shall not be Gilford Zoning that an owner is not required to merge contiguous lots if there is a “lawful and Aichinger argues that the exception to the merger requirement providing

Gilford Zoning Ordinance conforming unless an exception is provided for below. § 9.1.1.

provisions of RSA 674:39, the owner shall not be required to merge (b) Exception – Whenever lots are protected from merger by the

owned by the same owner, there is a lawful and preexisting (a) Exception – If at the time the lots described above become

ownership until such contiguous, nonconforming lots are made contiguous, nonconforming lots with contiguous lots under similar it was a “shelter, used primarily by occupants in the main building.”

p. 13 house on lot 10. Therefore, the structure was an “accessory building” because

from enforcing its merger ordinance. We disagree.

an accessory, non-principal use because it was used in conjunction with the family residence. To the contrary, the evidence showed that the structure had The record contains no evidence that the structure was ever used as a single-

when it found that the doctrine of municipal estoppel did not bar the Town

municipalities.” driveway label the building, “existing garage and storage,” or “existing camp.” to those who bargain with the agents of municipalities for the promises of the

Aichinger and the Town. Aichinger argues on appeal that the trial court erred upon the representations of town officials and the Agreement between the ordinance, we next determine whether the status of the lot changed based

for Aichinger in preparation for the installation of a new septic system and applied to municipalities “to prevent unjust enrichment and to accord fairness

Aichinger’s property had merged pursuant to the automatic merger provision of elements of municipal estoppel are:

Thomas v. Town of Hooksett, 153 N.H. 717, 721 (2006). The

grounds that she was entitled to rebuild her “guest home.” Surveys drawn up The doctrine of municipal estoppel is an equitable doctrine that has been house. Indeed, Aichinger applied for her amended building permit on the exception to the automatic merger provision does not apply. kitchen and bathroom, Aichinger testified that it was used primarily as a guest

Having determined that the trial court did not err when it ruled that

trial court’s conclusion that the “lawful and preexisting principal use” the record shows that the structure is insulated and heated and includes a Zoning Ordinance § 4.7.6(b). Therefore, the record reasonably supports the

family residence, and, therefore, not a “lawful preexisting principal use.” While trial court’s conclusion that the structure that existed on lot 9 was not a single- We conclude from our review of the record that the evidence supports the

principal use on each of the lots. We disagree. zoning ordinance.” Thus, according to Aichinger, there was a separate and distinct dwellings on Lots 9 and 10 before the Town of Gilford adopted its Aichinger asserts that the record “clearly shows that there were separate

by occupants in the main building.” Id. § 4.7.6(b). “[g]arage, child’s playhouse, greenhouse, tool shed, or shelter, used primarily including “accessory building[s].” Id. § 4.6. An “accessory building” is a number of “accessory uses” that are also permitted in the SFR district, property.

p. 14 would have revealed that section 9.1.1 was still in effect and applicable to the “no longer on the books.” A review of the ordinance, as the trial court found, of Planning that the Town’s merger requirement was, due to a court challenge,

was unreasonable for Aichinger to rely upon the representation of the Director published opinion. Second, the record supports the trial court’s finding that it property. Therefore, Aichinger could have investigated and discovered that

where a statute squarely addresses the issue).

Town officials in the spring of 2006, she mentioned to the Director of Planning property. Aichinger testified that she believed that when she first approached town code enforcement officer and a planning board member is unreasonable

See Thomas, 153 N.H. at 722 (reliance on erroneous information by

unreasonable. representation to his or her injury. made by town officials were materially incorrect, and, thus, any reliance was

a single lot more than seventeen years before Aichinger purchased her aware of our 1983 decision in Governor’s Island, which treated the property as First, the record supports the trial court’s finding that Aichinger was

inaccurate information is supported by the evidence. fourth, the other party must have been induced to rely upon the conclusion that Aichinger knew or should have known that the representations materially incorrect or misleading.” Id. The evidence supports the trial court’s should have known that the conduct or representation was improper, or her reliance or at the time of the representation or concealment, knew or “Reliance is unreasonable when the party asserting estoppel, at the time of his The reliance upon the misrepresentation must be reasonable. Id. at 722. induced to rely upon the misrepresentation to his or her injury. Id. at 721. A municipal estoppel claim requires a showing that a party has been

finding that Aichinger failed to prove that she reasonably relied upon the ruling on the first element, however, because we conclude that the trial court’s the intention of inducing the other party to rely upon it; and fourth elements of her estoppel claim. We need not consider the trial court’s the matter; third, the representation must have been made with The trial court concluded that Aichinger failed to prove the first and representation was made must have been ignorant of the truth of

evidence or is erroneous as a matter of law. Id. 721. We will uphold the trial court’s decision unless it is not supported by the Id. at 722. Each element of estoppel requires a factual determination. Id. at Id. Moreover, a party’s reliance upon the representation must be reasonable.

with knowledge of those facts; second, the party to whom the first, a false representation or concealment of material facts made issues of merger and municipal estoppel at the hearing.

p. 15 did not err in denying her a further opportunity to present evidence on the order on the motion for summary judgment was unreasonable, the trial court taking. We conclude that because Aichinger’s interpretation of the trial court’s

trumped by an Agreement to which she was not a party. with the Town. We cannot say that Sutton’s statutorily protected rights are refusal to reopen denied her due process and resulted in an unconstitutional

rights, not with the nature of Aichinger’s rights pursuant to her Agreement favor, she did not have the opportunity to present evidence on those issues. clarified on the morning of trial that those issues had not been resolved in her issues of municipal estoppel and merger. She argues that the trial court’s

the motion for summary judgment:

. . . .

trial court was therefore charged with determining the nature of Sutton’s forming the Agreement with Ms. Aichinger. judgment and request for injunctive relief pursuant to RSA 676:15 (2008). The judgment resolved certain issues in her favor, but that because the trial court preparing for trial and was therefore not prepared to present evidence on the Unquestionably, the town was acting within its discretion in Agreement and is therefore not bound by it, brought a petition for declaratory trial, Aichinger contends she had relied upon the summary judgment order in Because the order on the motion to dismiss was issued on the morning of the when it stated that it Aichinger relies upon the following language in the trial court’s order on had not ruled that the lots had been “demerged.”

merger. She contends that the trial court’s order on her motion for summary implicit in the trial court’s order. Sutton, who was not a party to the

court modified these rulings in its subsequent order on the motion to dismiss Board of Selectmen to enter into the Agreement. She argues that the trial judgment resolved the issue of merger in her favor and upheld the right of the According to Aichinger, the trial court’s order on her motion for summary

reopen the hearing to accept evidence on the issues of municipal estoppel and by the terms of the Agreement. We need not decide whether such a ruling is Aichinger argues that the trial court erroneously denied her request to error, because the court thereby implicitly ruled that the Town was not bound trial court’s conclusion that she owns a single lot. She argues that this was V

property consists of two separate and distinct parcels of land did not alter the Next, Aichinger notes that her Agreement with the Town that the the hearing. p. 16 treat the property as two lots.

responsibility for the fact that she did not present evidence on these issues at Agreement would have on Sutton’s claims. Therefore, Aichinger alone bears responsibility for, obtaining any requisite municipal approvals if she wishes to resolved the questions of merger, municipal estoppel, or what effect, if any, the should be construed to bar Aichinger from, or relieve Aichinger of the regarding the issues of municipal estoppel and merger. Nothing in this opinion

should have been clear to Aichinger that the trial court had not conclusively and (3) Aichinger was not entitled to reopen the merits hearing to offer evidence

on the petition for declaratory judgment and request for injunctive relief. It same order, the trial court denied Aichinger’s request for summary judgment municipal estoppel does not bar the Town from enforcing its merger ordinance; municipally estopped from enforcing the ordinance. court’s rulings that: (1) Aichinger owns a single, merged lot; (2) the doctrine of Indeed, elsewhere in the the Agreement would bar Sutton’s claims, or that the Town would be judgment that Aichinger owns a single, merged, lot. We also affirm the trial

it had resolved the question of merger in Aichinger’s favor, that the existence of that the exhaustion doctrine does not bar Sutton’s request for declaratory

argument is not sufficiently developed to warrant appellate review.

mandamus, as an extraordinary remedy, was not appropriate in this case to

Article 12-a of the New Hampshire Constitution, we conclude that the

motion to dismiss Sutton’s request for injunctive relief to prevent the

The trial court’s order dismissing the mandamus claim ruled only that

the issue of merger effectuated a taking of her property in violation of Part I,

In conclusion, we reverse the trial court’s ruling denying Aichinger’s

their discretion, and not in bad faith, when they entered into the Agreement. VI would not be appropriate because the town officials involved were acting within The statements were relevant to the trial court’s conclusion that mandamus LaFramboise, 146 N.H. 178, 181 (2001).

To the extent that Aichinger argues that the superior court’s ruling on

summary judgment to Aichinger on Sutton’s request for a writ of mandamus.

and damages based on the Planning Director’s error. litigation risk, where there existed a non-frivolous claim of estoppel

These statements were made in the context of the court’s order granting

matter of law. Here, the town entered the Agreement to reduce a The undisputed facts would not support a finding of bad faith as a p. 17 17

reply brief is moot. Aichinger’s request for attorney’s fees is denied. a writ of mandamus, and that Aichinger’s objection to the Town of Gilford’s

RSA 490:3, concurred. DUGGAN, J., concurred; BROCK, C.J., retired, specially assigned under

address whether it was proper for the trial court to dismiss Sutton’s request for In light of our holding today, we conclude that it is unnecessary to