2010-201 1808 Corporation v. Town of New Ipswich

Bernstein Shur, P.A.

No. 2010-201

Hillsborough-southern judicial district approximately 1.4-acre lot in New Ipswich on which there are two structures: a

Superior Court (Lynn HICKS, J. The petitioner, 1808 Corporation, appeals the order of the

The record reveals the following facts. The petitioner owns an

Bradley & Faulkner, P.C.

[petitioner] pursues Zoning Board approvals.” We affirm. plans to expand its office space for “no more than 180 days while the whether the planning board erred when it deferred reviewing the petitioner’s turn, upheld the decision of the respondent’s planning board. At issue is adjustment (ZBA) of the respondent, Town of New Ipswich (Town), which, in

orally), for the respondent. THE SUPREME COURT OF NEW HAMPSHIRE, of Keene (Beth R. Fernald on the brief and

Sackman on the brief, and Mr. Michael 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 The petitioner appealed this determination to the ZBA. See

approvals. petitioner’s plan for no more than 180 days while the petitioner pursued ZBA planning board voted to defer its consideration of whether to accept the was, instead, “a reasonable expansion of an existing [nonconforming] use.” The space into the building’s back area did not require further ZBA approval, but 2009 hearing on the application, the petitioner argued that expanding the office of the building for additional office space and no longer for storage. At a May 6, plan review. It submitted plans showing that it intended to use the back part In January 2008, the petitioner applied to the planning board for site

special exception and variance. figure,” and, then, voted unanimously to grant the petitioner the requested “agreed to contact the Planning Board to determine the basis of the 1,500 1,500 square foot area of the foundation for an office building.” The ZBA petitioner’s applications and discussed the ordinance limitations regarding “the storage by [the building’s] tenants and owner.” The ZBA approved the approximately 3700 square feet. The back part of the building will be used for were discussed, the petitioner’s agent “explained that the 1808 building will be At the May 21, 1998 ZBA meeting at which the petitioner’s applications

upheld them, and this appeal followed. and then appealed the ZBA’s decisions to the superior court. The trial court process.” The petitioner filed a motion for rehearing, which the ZBA denied, process offered through the variance and special exception application and other interested parties are due the opportunity to participate in the due owner and tenants”; and (2) “[g]iven the significant change of use, the abutters specific concerning the use of the back portion of the building as storage by written decision, the ZBA explained: (1) “[t]he previous [ZBA] . . . decision was III (2008). After a public hearing, the ZBA denied the petitioner’s appeal. In its feet. RSA 676:5, from the requirement that the building’s foundation not exceed 1,500 square the 1808 building was 7,275 square feet, the petitioner also sought a variance of the building does not exceed 1,500 square feet.” Because the foundation of areas only by special exception and only “if . . . the total area of the foundation “Village District II.” Under Article V.D.1., office buildings are allowed in such the Town’s zoning ordinance to allow an office building in an area zoned as In 1998, the petitioner requested a special exception to article V.D.1 of

the subject of this appeal. 3,515 square feet of storage space. The two-story building (1808 building) is Restaurant, and a two-story building of 3,760 square feet of office space and one-story building of 540 square feet currently used as the Short Stop p. 3 In this way, this case is distinguishable from Bio Energy v. Town of

an express limitation on the square footage to be used for office space, see determination. Although the language of the variance itself does not contain The record submitted on appeal, while meager, supports the ZBA’s

1983 hearings about the variance, Bio Energy did not specify that it would use source of fuel in its cogeneration facility. Bio Energy the intent of the language in the variance at the time it is issued.” N. Country, 153 N.H. at 147. At the Bio Energy obtained a variance in 1983 so that it could use woodchips as a scope of a variance is dependent upon the representations of the applicant and Hopkinton the scope of the petitioner’s 1998 variance. Under New Hampshire law, “[t]he, 153 N.H. 145 (2005), upon which the petitioner relies. In that case, additional 3,515 of the building’s square footage for office space was not within We first address whether the ZBA erred when it ruled that using an owner and tenants.” specific concerning the use of the back portion of the building as storage by evidence to support the ZBA’s determination that the 1998 variance “was storage by tenants and owner.” Given this record, we conclude that there is for office space and to use the remainder of the building’s square footage “for the petitioner intended to use “approximately 3700 square feet” of the building building for office space. At that meeting, the petitioner’s agent explained that discussed show that the petitioner intended to use only a portion of the petitioner’s agent at the ZBA meeting at which the petitioner’s application was Our review of zoning board decisions is limited. Harrington v. Town of Country Envtl. Servs., 146 N.H. at 353, the representations made by the

77, 81 (1971). omitted). It is a question of fact for the ZBA. See Rye v. Ciborowski, 111 N.H. Envtl. Servs. v. Town of Bethlehem, 146 N.H. 348, 353 (2001) (quotation

155 N.H. 307, 309 (2007). decision is unreasonable. Kalil v. Town of Dummer Zoning Bd. of Adjustment, persuaded by a balance of probabilities on the evidence before it that the ZBA reasonable, and may not set them aside, absent errors of law, unless it is court must treat all factual findings of the ZBA as prima facie lawful and Assocs. v. Town of Chichester, 155 N.H. 102, 105 (2007). For its part, the trial unless the evidence does not support it or it is legally erroneous. Malachy Glen Warner, 152 N.H. 74, 77 (2005). We will uphold the trial court’s decision

expansion of a nonconforming use. the scope of the 1998 variance; or (2) the expansion represents a permissible were not required because either: (1) the expansion of office space was within footage for office space. The petitioner asserts that additional ZBA approvals proceeding with its plan to use an additional 3,515 of the building’s square decided that the petitioner needed to obtain additional ZBA approvals before The issue in this appeal is whether the planning board erred when it p. 4 “nonconforming use.” Dovaro 12 Atlantic v. Town of Hampton that lawfully existed before the zoning ordinance was enacted and, thus, a The use in this case was allowed by special exception. It is not a use

ordinance prohibiting that use was adopted.”). Nor is it a use allowed by a 228 (2009) (“A nonconforming use is a lawful use existing on the land when the See, 158 N.H. 222, requisite findings relative to the permissible expansion of a nonconforming use. use, the ZBA disagreed. In so doing, however, the ZBA did not make any of the that using additional square footage was a mere expansion of a nonconforming as a matter of law. additional 3,515 square feet as office space. Although the petitioner argued its office space. Moreover, we conclude that the ZBA’s determination is correct doctrine of expansion of nonconforming uses to the petitioner’s plan to use an of nonconforming uses did not apply to the petitioner’s proposed expansion of We next address whether the ZBA erred when it failed to apply the We interpret the ZBA’s order as a determination that the doctrine of expansion scope or effect on the surrounding neighborhood of the purported expansion). unlawfully expanded his junkyard operations, let alone the character, nature, because ZBA did not make findings regarding whether petitioner had Guy v. Town of Temple, 157 N.H. 642, 656 (2008) (remand required

1983 variance was not limited to the use of “pure woodchips.” Id petitioner’s variance. See Ultimately, we ruled that, contrary to the town’s assertions, Bio Energy’s id. the scope of the 1983 variance, there is a basis for implying a limitation on the Accordingly, while in Bio Energy there was no basis for implying a limitation on building for office space and to use the remainder of the building for storage. explicitly mention the petitioner’s intent to use only 3,700 square feet of the minutes of the meeting at which the petitioner’s variance was discussed did not refer to “pure woodchips.” Id. By contrast, in the instant case, the discussed did not mention “pure woodchips.” Id. Moreover, the variance itself “pure woodchips,” and that the meetings at which the 1983 variance was ruling, we observed that Bio Energy never represented that it would use only

superior court and then here. Id. at 150. at 149. The validity of the cease and desist order was litigated first in the ground that such use was beyond the scope of Bio Energy’s 1983 variance. Id. from using construction and demolition woodchips as a fuel source on the sought and obtained a cease and desist order from the selectmen to prevent it at 148. Although Bio Energy obtained the building permit, town residents demolition woodchips from the wood fuel storage area to the power plant. Id. applied for a building permit to mechanize the delivery of construction and sawdust, and construction and demolition woodchips. Id. In 2001, Bio Energy from a variety of waste wood sources, including waste wood from shavings, chips. Id. at 155. For twenty years, Bio Energy used a fuel mix of woodchips only “pure woodchips,” and, indeed, raised the possibility of using rubber and uphold the determinations of the ZBA and planning board that the p. 5 For all of the above reasons, therefore, we affirm the trial court’s decision

was an area variance, not a use variance. The petitioner relies upon Bio Nor does the petitioner address the fact that the variance in this case uses to this case. nonconforming uses” does not apply to special exceptions. Geiss v. Bourassa petitioner’s invitation to apply the law regarding expansion of nonconforming explained that “the review standard appropriate to the scope of variances or use allowed by special exception. Under these circumstances, we decline the distinguished between nonconforming uses and special exceptions, and have use. Brust, 122 N.H. at 468-70. Neither Bio Energy nor Brust concerned a N.H. at 148, 154. Brust involved the expansion of a preexisting nonconforming involved a use allowed by variance, not by special exception. Bio Energy, 153 expansion of nonconforming uses should apply to this case. Bio Energy however, neither case supports the petitioner’s assertion that the doctrine of Energy, 153 N.H. 145, and Town of Hampton v. Brust, 122 N.H. 463 (1982);

Merion Tp. ZHB, 916 A.2d 726, 729 (Pa. Commw. Ct. 2006). satisfy the special exception provisions in the ordinance.” Kleinman v. Lower permitted as special exceptions are deemed to be permitted as long as they nonconforming uses should apply to this case. We have previously special exception is not the equivalent of a nonconforming use. Uses that are The petitioner does not explain why cases involving the expansion of truly made.” Geiss, 140 N.H. at 632 (quotation and brackets omitted). “[A] grant it,” and by so doing, “[n]o exception to the application of the ordinance is conditions for granting [a] special exception are met, the zoning board must Rathkopf’s The Law of Zoning and Planning § 61:11, at 61-22 (2010). “If the town’s zoning ordinance.” Id. at 631 (quotation omitted); see 3 E. Ziegler, Jr., special exception “is a use permitted upon certain conditions as set forth in a 140 N.H. 629, 632 (1996). In contrast to a variance or nonconforming use, a

restriction that the building’s foundation not exceed 1,500 square feet. square footage for such a use because it obtained a variance from the Village District II. The petitioner was allowed to devote 3,700 of its building’s special exception from the zoning ordinance’s prohibition of such uses in the The petitioner was allowed to use its building for office space because it had a height of the building in which such a use may exist. Id. (quotation omitted). restrictions which relate to a permitted use,” such as limitations on the size or zoning ordinance prohibits. Id. An area variance “authorizes deviations from 2009, 309:1. A use variance allows the applicant to undertake a use that the Boccia v. City of Portsmouth, 151 N.H. 85, 90 (2004), superseded by Laws variance. The 1998 variance was an area variance, not a use variance. See p. 6 6

Affirmed

DALIANIS, C.J.