Wentworth Hotel, Inc. v. Town of New Castle

• Decision Date: 31 January 1972
• Docket Number: No. 6256,6256
• Citation: 112 N.H. 21,287 A.2d 615
• Parties: WENTWORTH HOTEL, INC. v. TOWN OF NEW CASTLE.
• Court: New Hampshire Supreme Court

Page 615

287 A.2d 615

112 N.H. 21

WENTWORTH HOTEL, INC. v. TOWN OF NEW CASTLE.

No. 6256.

Supreme Court of New Hampshire.

Jan. 31, 1972.

Boynton, Waldron & Dill, Portsmouth (Wyman Boynton, Portsmouth), for plaintiff.

Shaines, Madrigan & McEachern, Portsmouth (John R. Maher, Portsmouth), for defendant.

PER CURIAM.

This is an appeal from the decision of the Zoning Board of Adjustment of the Town of New Castle which granted part and denied part of plaintiff's request for a variance to use its property, zoned partly residential and partly oceanside and beach, for the construction of multifamily condominiums, which are not permitted in either distrct. The entire property of about 50 acres is and has been a summer resort hotel complex operated as a nonconforming use. Plaintiff's premises which are surrounded on three sides by water comprise the westerly end of New Castle which is an island connected to the mainland by bridges. The property is divided by a road on the north side of which is the residential district and on the south side of which is the oceanside and beach district. Because of the lack of space, its 18-hole golf course is located in the adjoining town of Rye. In the oceanside and beach district only one single-family house may be built on each acre of land while in the residential district two-family residences on lots as small as 10,000 square feet are permitted.

Fire had destroyed a dormitory housing 200 employees of the hotel and continued operation of the hotel as it has been operated requires its replacement at a cost of over half a million dollars. Additional sprinkler systems must be installed in the hotel to obtain and retain insurance. New sewerage plants are required and capital is needed for other improvements.

Because of changed vacation preferences of the American public, resort hotels like the Wentworth-by-the-Sea have experienced a substantial decline in the number of guests using the hotel for vacation purposes and are relying more on convention-type use. Competition is strong and the financial situation of the plaintiff is bleak.

To raise the substantial amount of capital it needs, the plaintiff seeks to resort to the sale of its available land. It contends, however, that the sale of its land for uses permitted under existing zoning restrictions could not raise capital in sufficient amounts. Wishing to make the best possible use of its facilities, plaintiff sought to obtain a variance to permit it, over a period of time, to build for sale a complex of condominiums whose owners would have access to the hotel swimming pool, tennis courts, golf course, and other facilities.

The ten-year plan of the plaintiff was to construct a total of two hundred eighty condominium units on both sides of the road, the largest of which was a 104-unit structure to be built during the last two of the ten years to replace the easterly wings of the main hotel building. A nine-hole golf course, a golf club house, a clubhouse pool, marina, and other new facilities including adequate sewage treatment plants are contemplated as part of the overall plan. When completed and fully occupied, it is estimated that some 800 people would be living in these units which are expected to sell for from $40,000 to $70,000 each. A buffer zone of 40 feet would separate the plaintiff's property from adjoining owners.

It is contemplated that with a shift to a condominium-type operation, the hotel staff could be so reduced as to make unnecessary the rebuilding of the dormitories and the hotel could be reduced in size so as to eliminate the addition of new sprinkler systems.

The board of selectmen denied a permit and plaintiff appealed to the board of adjustment. After a hearing, the board of adjustment denied the variance. Upon rehearing on application of the plaintiff, the board granted the variance as to the 104-unit structure to replace the easterly wings of the hotel but denied the application as to the balance of the plaintiff's property. In granting the variance as to part of the property, the board found that all five requirements for a variance had been met. Gelinas v. Portsmouth, 97 N.H. 248, 250, 85 A.2d 896, 898 (1952). As to all other land included in the petition, the board found that for condominium purposes, it 'could cause' diminution of value of surrounding party, would 'not be of benefit to the public interest', that a denial would 'not result in unnecessary hardship', and that 'the use requested would be contrary to the spirit of the Ordinance'. It made no finding as to whether substantial justice would be done by granting the variance as to the remaining land.

The matter was heard by a Master, Leonard C. Hardwick, Esquire, on the full record of proceedings before the board without additional evidence, who found that the plaintiff had not met the burden of proving that the board's action was unjust, unreasonable or unlawful, and recommended that the petition be dismissed. The Court, Perkins, J., entered a decree in accordance with the recommendation of the master and transferred plaintiff's exceptions.

Plaintiff contends first that, as a matter of law, the board could not find that the requirements of a variance had been met as to part of its premises and not met as to the balance. If contends that its entire property is one integrated commercial unit although it consists of many facilities. It argues that the board must treat its property as a unit and either grant or deny the variance requested for the entire property.

RSA 31:72(IV) specifically authorizes boards of adjustment to reverse or affirm the order appealed from 'wholly or partly'. (Emphasis added). The board would be justified under the law in dealing with property covering over fifty acres, to find that requirements for a variance existed as to part but not the rest. Although the plaintiff may operate its business as a unit, the board is dealing with a substantial part of the town which is being operated under a nonconforming use. The ordinance has dictated that, absent the present nonconforming use, the property should be restricted to those uses allowed in the district in which it lies.

It is a general policy of zoning to carefully limit the extension and enlargement of nonconforming uses. Arsenault v. Keene, 104 N.H. 356, 187 A.2d 60 (1962); Lachapelle v. Goffstown, 107 N.H. 485, 225 A.2d 624 (1967). To be sure, the plaintiff does not seek to extend or enlarge its commercial hotel use, but it does seek to alter as well as to enlarge the nonconforming use of its property. The board could well find that permitting plaintiff to replace part of its existing structure with a condominium type of buildings would not be substantially enlarging or extending the present use of its land and could reasonably find that all the conditions for a variance were met. As to the balance of petitioner's property, however, a different situation was presented. By and large, the balance of the land upon which plaintiff seeks to build condominiums is not being used except as grounds surrounding the hotel and other facilities. Therefore, although plaintiff was making a nonconforming commercial use of its property, that...