Sutton v. Town of Gilford
| Decision Date | 30 March 2010 |
| Docket Number | No. 2008–674.,2008–674. |
| Citation | 160 N.H. 43,992 A.2d 709 |
| Court | New Hampshire Supreme Court |
| Parties | Rita SUTTON and another. v. TOWN OF GILFORD and another. |
McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Scott H. Harris on the brief and orally), for the petitioner.
Mitchell Municipal Group, P.A., of Laconia (Walter L. Mitchell and Laura A. Spector on the brief, and Ms. Spector orally), for respondent Town of Gilford.
Patrick Wood Law Office, PLLC, of Laconia (Patrick H. Wood on the brief and orally) for respondent Barbara Aichinger.
Wiggin & Nourie, P.A., of Manchester (Thomas J. Pappas and Mary Ann Dempsey on the brief), for Bank of America, N.A., as amicus curiae.
The petitioner, Rita Sutton, by and through her son and attorney-in-fact, Glenn Sutton, appeals Superior Court (Smukler, J.) orders: (1) granting respondent Barbara Aichinger's motion for summary judgment on Sutton's petition for a writ of mandamus; and (2) denying Sutton's request for a permanent injunction to prevent construction and development of Aichinger's non-conforming lot. Aichinger cross-appeals superior court orders: (1) denying her motion to dismiss the petition because Sutton failed to exhaust her administrative remedies; (2) granting declaratory judgment to Sutton on the grounds that Aichinger's property had been merged pursuant to the Town of Gilford's (Town) zoning ordinance; (3) ruling that the Town was not estopped from enforcing its zoning ordinance; (4) denying her request to reopen the hearing to present evidence on the issues of municipal estoppel and merger; and (5) denying her request for attorney's fees. We reverse in part and affirm in part.
At issue in this case is lakefront property (the property) on Governor's Island in Gilford, which Aichinger purchased in 2002. The property is in the Single Family Residence (SFR) district, where lots are required to be one acre in size, and is part of the Governor's Island Club (Club), an association that, among other things, enforces restrictive covenants on land use on the island. At one time, the property was comprised of two parcels (lots 9 and 10). Lot 9, which contained a single structure consisting of a garage and guest house, is approximately 0.6 acres, and lot 10, which contained a residence, is approximately 0.5 acres. Sometime in the 1980s, pursuant to a provision in the Town's zoning ordinance that automatically merged contiguous nonconforming lots, the Town merged lots 9 and 10 to create a single lot, known as lot 7. Although former lots 9 and 10 are described separately in Aichinger's deed, at the time she purchased the property, it was labeled "lot 7" on the tax maps of the town and was taxed as a single lot. The records of the Club also indicate that the property is a single lot.
In 2006, Aichinger sought clarification from the Town regarding the legal status of lot 7. She first contacted the Town Code Enforcement Officer (CEO) and Town Appraiser to see whether she could treat her property as separate waterfront parcels. Specifically, she inquired whether the two adjoining parcels had been merged by request of the previous owners. The CEO and Town Appraiser informed Aichinger that they did not see any indication in their records that a previous owner had voluntarily merged the property, but did not comment on whether she could treat the parcels as separate lots. The Town Appraiser noted that it appeared that the parcels had been automatically merged by a mapping company, and informed her that he would recommend that the properties be separately assessed, but that he had no authority to proceed without the direction and approval of the Town Planning Board and Board of Selectmen. The Town Appraiser and CEO then referred Aichinger's question to the Town Director of Planning and Land Use (Director of Planning).
In April 2006, Aichinger contacted the Director of Planning to review the matter and to request a second tax lot ID number. On October 19, 2006, the Director of Planning responded to Aichinger's request by email. He stated that he had reviewed her file, that he had found no evidence that previous owners had voluntarily merged the lots, that lots 9 and 10 appear to have been merged even on some of the older tax maps, but that the maps "clearly show signs that there were once two lots," and that he presumed that "the lots were merged involuntarily at the time that the Town had a law requiring such automatic mergers." He also stated that "[t]he courts threw out that law" and that he believed "all automatic mergers were effectively voided." On January 15, 2007, the Director of Planning sent a follow-up letter, stating, in relevant part:
Thereafter, Aichinger began work related to a plan to remove all existing buildings on lot 7 and to construct two new single-family homes, one on former lot 9 and one on former lot 10. Specifically, the record shows that she:
obtained a permit to demolish the existing house on 558 Edgewater Drive, obtained a new septic design and system permit for both parcels, obtained a building permit for a new house on 558 Edgewater Drive, secured permits for a new driveway on both parcels, blasted foundation holes for new homes on both parcels, contracted for the construction of a new home on 558 Edgewater Drive, received approval for construction of a new home on 558 Edgewater Drive from respondent Governor's Island Club, and mortgaged 554 Edgewater Drive to fund the construction for 558 Edgewater Drive. Ms. Aichinger also sought buyers for 554 Edgewater Drive.
In May 2007, the Director of Planning wrote to Aichinger indicating that after consulting with town counsel, he realized that his previous advice had been in error, and that Aichinger, in fact, owned a single, merged lot. Aichinger appealed this decision to the Gilford Zoning Board of Adjustment (ZBA). She also began negotiations with the Gilford Board of Selectmen (Board of Selectmen), contending that if the May 2007 decision of the Director of Planning stood, the Town might be liable for money damages based upon municipal estoppel. She also contended that RSA 647:39–a and RSA 75:9 clearly recognize that a landowner must take action to have property merged.
On June 21, 2007, prior to her ZBA appeal hearing, Aichinger entered into a settlement agreement (Agreement) with the Board of Selectmen. Specifically, the Town and Aichinger agreed, inter alia: (1) that "the property consists of two separate and distinct parcels of land and the Town has and will continue to assess them as separate tax parcels under NH RSA 76:9"; and (2) the Town "shall take no action and shall not support any action to merge the two lots nor ... participate in any efforts to merge the two lots." As a result, Aichinger did not pursue her ZBA appeal.
In July 2007, Sutton, an abutting landowner, filed suit in superior court, seeking: (1) an injunction to prevent Aichinger from developing the property in violation of the Gilford Zoning Ordinance; (2) a declaratory judgment that Aichinger was collaterally estopped from litigating whether lots 9 and 10 were merged; (3) a declaratory judgment that the Town is not estopped from enforcing its merger ordinance; (4) a mandamus against the Town requiring it to enforce its zoning ordinances; and (5) attorney's fees against the Town. In early October, Aichinger filed an answer and counterclaim, and later moved for summary judgment. The trial court rejected the motion relating to Counts I (injunctive relief), II (declaratory judgment) and IV (attorney's fees), reasoning that a material issue of fact existed as to whether Sutton would be specially damaged by the alleged zoning violation. The trial court granted summary judgment on Count III (mandamus), concluding that mandamus was not an appropriate remedy in this case because Sutton's right to have the ordinance enforced was not clear and apparent. Rather, the Town had the discretion to settle with Aichinger and, in fact, had exercised its discretion in doing so in good faith, because the Town had entered into the Agreement to reduce a litigation risk where there existed a non-frivolous claim of estoppel.
Also in October, Aichinger obtained a building permit for the construction of a home on 554 Edgewater Drive, former lot 9. She sought the building permit on behalf of a party with whom she had entered into a purchase and sale agreement for that property. The permit allowed a new single-family home with a garage but contained the following warning:
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