The Johnsons own a unit at the Pine Harbor Condominiums (PHC). Sheepshead Bay acquired an adjacent lakefront parcel to PHC separated from the Johnson’s unit by one common area. Sheepshead proposed to replace an existing seasonal cottage with a larger year-round dwelling about 500 feet from the Johnson’s property and 200 feet from the boundary line of the PHC property. The Johnsons asserted that this larger proposed structure would interfere with the use and enjoyment of their unit and the common area in which they own an undivided interest. Since the proposed dwelling would lie within the wetlands buffer zone, a special use permit was required. The Johnsons submitted a written document to the planning board, urging them to deny the special use permit since the application failed to satisfy the criteria set forth in the ordinance. The planning board granted the permit.
The Johnson’s appeal to the superior court was dismissed for lack of standing. The trial court found that the Johnsons did not have an interest separate from that of the PHC board, and that when the PHC board decided to take no action to oppose the application, they did so on behalf of all of the unit owners.
The Supreme Court noted that the State Condominium Act provides that the board of directors shall have the irrevocable power as attorney-in-fact to act on behalf of the unit owners to grant and accept certain easements. It also provides that a board’s by-laws shall specify the powers and duties of the board. While acknowledging that the PHC bylaws give the board, among other things, responsibility for the common areas, the Court said, “Nowhere in the PHC Declaration or bylaws…is this authority said to be exclusive of the unit owners’ legal rights as individual property owners.” Further, the Court noted that the bylaws do not address participation in land use decisions regarding abutting properties, and that “there is no provision in the PHC declaration or bylaws granting the board the authority to contract away the standing rights of individual unit owners.”
Finding that the Johnsons had standing as a matter of law, the Court noted that their unit is approximately 200 feet from the Sheepshead parcel and less than 500 feet from the proposed structure, and that the proposed change is significant. The Court also noted that the Johnsons actively participated in the planning board hearing. The Supreme Court reversed the trial court and remanded the matter.
Johnson v. Town of Wolfeboro Planning Board, 2008 WL 899274 (N.H. 4/4/2008).
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/johns034.pdf
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