1808 Corp. v. Town of New Ipswich
161 N.H. 772
| N.H. | 2011Background
- 1808 Corp. owns 1.4-acre New Ipswich lot with a 540 sq ft restaurant and a two-story 3,760 sq ft office/3,515 sq ft storage building; the 1808 building is the subject of the appeal.
- 1998 ZBA approval granted a special exception for an office in Village District II and a variance to permit a foundation larger than the 1,500 sq ft limit, based on representations that only part of the building would be used for office space.
- At the May 21, 1998 ZBA meeting, the agent stated the building would use approximately 3,700 sq ft for office space, with the remainder for storage; ZBA unanimously granted the requests and framed the 1,500 sq ft foundation limit.
- In January 2008, the petitioner applied to the planning board for site plan review to expand office space into the back portion; at a May 6, 2009 hearing, petitioner argued the expansion was a reasonable expansion of a nonconforming use and the planning board deferred action for up to 180 days while pursuing ZBA approvals.
- The planning board deferred review, the petitioner appealed to the ZBA, which denied, and the superior court upheld; the issue on appeal is whether the planning board erred in requiring further ZBA approvals before expanding office space.
- The Supreme Court affirms, upholding the ZBA and planning board decisions that further ZBA approvals are required before proceeding with the expansion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the 1998 variance scope cover expanding office space? | 1808 argues the expansion falls within the variance scope. | Town contends expansion exceeds the variance scope as to use and area. | Yes; expansion not within scope of the 1998 variance. |
| Was expansion of the back portion a nonconforming-use expansion? | 1808 relies on expansion-of-nonconforming-use doctrine. | Town rejected nonconforming-use expansion, requiring ZBA findings. | No; doctrine inapplicable; special exception framework applies. |
| Did the ZBA fail to make required findings for expansion of a nonconforming use? | 1808 contends ZBA should apply expansion doctrine. | ZBA did not apply such doctrine. | Remand not required; law supports ZBA decision finding expansion not governed by nonconforming-use doctrine. |
| Is expansion governed by a use variance, nonconforming use, or special exception? | 1808 claims expansion is within 1998 variance or permissible nonconforming-use expansion. | Expansion is not a use variance and is governed by special-exception framework. | Expansion is not a nonconforming-use expansion; remains within special-exception framework. |
Key Cases Cited
- Bio Energy v. Town of Hopkinton, 153 N.H. 145 (N.H. 2005) (variance scope and limitations depend on representations and meeting discussions)
- Brust v. Town of Hampton, 122 N.H. 463 (N.H. 1982) (expansion of a preexisting (nonconforming) use; context differs from special exceptions)
- Geiss v. Bourassa, 140 N.H. 629 (N.H. 1996) (special exceptions are permits subject to ordinance provisions; not the same as nonconforming uses)
- N. Country Envtl. Servs. v. Town of Bethlehem, 146 N.H. 348 (N.H. 2001) (scope of variance depends on representations and variance language at issue)
- Dovaro 12 Atlantic v. Town of Hampton, 158 N.H. 222 (N.H. 2009) (nonconforming use concepts distinguished from special exceptions)