Roberts v. Town of Windham
70 A.3d 489
N.H.2013Background
- Petitioner Roberts seeks to unmerge Lots 8–11 from a Town-involuntary merger and redivide the property into four lots; the Parcel (Lots 8–14) originated from a 1913 plan and was developed into a waterfront estate with shared features.
- In 1960s, the Town treated the property as a single lot for taxation and designation without owner applications to merge.
- In 2011, RSA 674:39-aa was enacted to restore involuntarily merged lots to premerger status upon owner request, with burden on the municipality to prove voluntary merger and with a prohibition on restoration if any owner in the chain voluntarily merged.
- Selectboard concluded Lots 12–14 were involuntarily merged and Lots 8–11 were voluntarily merged based on conveyance as one tract and the physical layout; the ZBA affirmed, and the superior court upheld.
- Petitioner appeals on standard of review and sufficiency of proof of voluntary merger; this Court reviews de novo statutory interpretation but maintains deferential review of zoning decisions, and affirms the ZBA’s decision.
- Final note: waiver for an issue raised in notice of appeal but not briefed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does RSA 674:39-aa alter the appellate standard of review? | Roberts argues the legislature shifted to a stricter standard. | Town argues standard remains deferential under RSA 677:6. | Deferential standard preserved; no change to appellate review. |
| Was there a sufficient showing of voluntary merger for Lots 8–11? | Evidence of merger insufficient when considered individually. | Totality of circumstances supports voluntary merger. | Evidence supports voluntary merger. |
| Do conveyance mechanics and taxation alone prove merger? | Conveyance as one tract and single tax status are insufficient. | Not dispositive alone; must view property as a whole; evidence supports merger. | |
| Who bears the burden of proof on voluntary merger under RSA 674:39-aa? | Burden shifts due to statutory change. | Municipality bears burden; statute does not alter standard of review. | Municipality bears burden; deferential review retained. |
Key Cases Cited
- Brandt Dev. Co. v. City of Somersworth, 162 N.H. 553 (N.H. 2011) (standard of review in zoning cases remains deferential)
- Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642 (N.H. 2000) (review of evidence sufficiency relies on reasonableness)
- Hill v. Town of Chester, 146 N.H. 291 (N.H. 2001) (tax method not dispositive in zoning questions)
- Radziewicz v. Town of Hudson, 159 N.H. 313 (N.H. 2009) (statutory interpretation and plain meaning; de novo review on law)
- DaimlerChrysler Corp. v. Victoria, 153 N.H. 664 (N.H. 2006) (statutory interpretation presumed words chosen advisedly)
- Atwater v. Town of Plainfield, 160 N.H. 503 (N.H. 2010) (interpretation of statute with overall purpose)
- State v. Hull, 149 N.H. 706 (N.H. 2003) (illustrates deferential review when sufficiency proven)