New London Land Use Ass'n v. New London Zoning Bd. of Adjustment

Citation543 A.2d 1385,130 N.H. 510
Decision Date06 June 1988
Docket NumberNo. 87-001,87-001
CourtNew Hampshire Supreme Court

Page 1385

543 A.2d 1385
130 N.H. 510
No. 87-001.
Supreme Court of New Hampshire.
June 6, 1988.

[130 N.H. 512] Clauson, Smith & Whelan, Hanover (K. William Clauson on the brief and orally), for plaintiff.

Upton, Sanders & Smith, Concord (Richard F. Upton on the brief and orally), for defendant New London Zoning Bd. of Adjustment.

McSwiney, Jones, Semple & Douglas, New London (Robert E. Bowers, Jr., on the brief and orally), for intervenor Lakeside Lodge, Inc.

[130 N.H. 513] THAYER, Justice.

In this zoning case, the plaintiff, New London Land Use Association (the Association), appeals the Superior Court's (Cann, J.) decision upholding the New London Zoning Board of Adjustment's (board) grant of a special exception to Lakeside Lodge, Inc. (Lakeside), the intervenor in this case. The principal issue before us is whether a zoning ordinance requirement which need not be met for a particular land use, because it was a prior nonconforming use, must nevertheless be met in order for the landowner to obtain the special exception required for a new development of the land. For the reasons that follow, we reverse.

The Association is a group of private landowners in the vicinity of and abutting Lakeside's property located on Route 103A

Page 1386

in New London. Lakeside is a commercial motel operation consisting of seventeen housekeeping units located on a seventeen-acre parcel of land on the east side of Route 103A. Lakeside also owns a small parcel of land opposite the lodge, on the west side of Route 103A, on the shore of Lake Sunapee. From this beach area, a small dock owned by Lakeside extends into Lake Sunapee.

Lakeside operates within a district classified as Agricultural Rural Residential (ARR) under the ordinance. The ordinance, which was enacted in 1958, allows a maximum density of one residence per two acres within ARR districts. Since Lakeside was in operation before the ordinance became effective, its owners have been allowed to continue their commercial operation as a nonconforming use, on less than the required number of acres.

The ordinance requires that all condominium projects, or "Planned Unit Developments" (PUD's), meet special exception requirements. Lakeside applied to the board for a special exception to proceed with plans for its PUD. On May 24, 1985, the board issued a notice of decision granting a special exception which would allow Lakeside to raze, relocate, and construct seventeen new condominium units and one clubhouse building on the seventeen-acre parcel. Currently, Lakeside consists of a main lodge to which six units are connected, and eight additional buildings which surround the main lodge. These additional buildings vary in their size and in the number of units they contain. The proposed PUD would change the existing site substantially: the existing structures would be torn down; the seventeen new units would be clustered together around the property in one- or two-family dwelling units of varying sizes; and extensive sitework, including the establishment of new road networks, a pond and a new entryway, would be conducted. The plan also proposed a clubhouse, which would be [130 N.H. 514] classified as an accessory use. Though the number of dwelling units would remain the same, the plans call for an increase in combined living, storage, garage and common space from 20,250 square feet to 45,262 square feet. Lakeside has also requested permission to increase the dock size to accommodate additional boats; however, the board declined to consider that request and referred the dock issue to the State Wetlands Board.

After the board granted a special exception to Lakeside, the Association filed a petition for rehearing, which the board denied on June 7, 1985. Thereafter, the Association twice requested permission to amend the petition for rehearing. Both requests were denied. Meanwhile, the Association filed an appeal with the superior court on July 1. On August 15, in a decision on the merits, the superior court upheld the board's grant of a special exception to Lakeside. This appeal by the Association followed, and Lakeside cross-appealed, arguing that the superior court should have dismissed the Association's appeal as not timely filed within the appeal period provided by RSA 677:4.

We can easily dispose of the issue on cross-appeal before addressing the Association's issues. RSA 677:4, Appeal from Decision on Motion for Rehearing, states that "[a]ny person aggrieved by any order or decision of the zoning board of adjustment ... may apply to the superior court within 30 days after the action complained of has been recorded...." We will interpret the words of the statute according to their plain meaning. RSA 21:2. King v. Sununu, 126 N.H. 302, 306, 490 A.2d 796, 800 (1985). This appeal is one from a denial of a "rehearing." Munger v. Town of Exeter, 128 N.H. 196, 198, 512 A.2d 418, 419 (1986). The board denied the Association's petition for rehearing on June 7. The Association filed its appeal to the superior court on July 1, within the appropriate time period provided in RSA 677:4. In light of the statutory scheme and facts presented, Lakeside's claim is wholly lacking in merit. We now turn to the Association's arguments.

The Association raises five different issues on this appeal. First, the Association asserts that a prior nonconforming density cannot be used to satisfy current density requirements to gain a special exception as a planned unit development. Second, the

Page 1387

Association contends that Lakeside's proposed removal of old structures and replacement with larger new structures upon a lot with a nonconforming density use requires a variance from the town's zoning ordinance rather than a special exception, which is required for all current planned unit developments. Third, claiming lack of [130 N.H. 515] an evidentiary basis, the Association questions the validity of the town's approval of a separate clubhouse building, as an accessory use to the seventeen residential units. Fourth, the Association asserts that the board, in its deferral to the wetlands board, unlawfully refused to consider all aspects of the impact of the planned unit development upon the neighborhood, including the waterfront area and dock. Fifth, the Association contends that the superior court improperly refused to consider evidence, where the Association made an offer of proof involving evidence contrary to evidence presented by Lakeside before the board. Our ruling in favor of the Association on the first two issues is dispositive of the remaining issues.

Although the ordinance provides that PUD approvals must be the subject of special exceptions, the Association argues that the board erroneously allowed Lakeside the use of its nonconforming density to satisfy one of the requirements for a special exception. Under the ordinance, there are six requirements which an applicant must meet before the board may grant a special exception. The relevant requirement is under Article XIV(A)(6), which states that: "[t]he proposed structure and/or use shall be compatible with the spirit and intent of this Zoning Ordinance including its density standards." Article XII regulates...

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