The petitioner, Dovaro, owns a 5,000 square foot lot that contains two buildings housing six apartments and a small cottage. The use of the lot became nonconforming because the lot had too few parking spaces for each dwelling unit under a 2006 amendment to the Town’s zoning code. For parking, the renters have typically leased parking spaces off-site. Dovaro sought to convert the apartments and cottage into seven condominium units, also making them year-round rather than seasonal use. The board initially denied the application because of a lack of accessible parking, but on rehearing in May 2006, the board denied the application on the grounds that converting the units to condos would perpetuate “a public nuisance with respect to parking ingress and egress” and jeopardize public safety because of difficulty with emergency access. Dovaro appealed the board’s denial and the superior court partially reversed the Town’s decision holding that the Board was wrong in denying the application to convert the apartments/units to condos since the “present nonconforming use of the property – which the board did not find to be a nuisance or a safety hazard – must be permitted to continue, regardless of the form of ownership of the units.” The superior court order the Town to grant the application without the parking spaces it deemed offensive.
Dovaro then submitted a revised application with reconfigured parking, and the Board found four of the proposed parking spaces offensive, and, as a condition of approval, required the condominium association to secure offsite parking for the other units in perpetuity. Dovaro appealed to the superior court again and the court upheld the Board’s decision to eliminate the four parking spaces, but held that the Board could not require Dovaro to secure perpetual offsite parking.
The New Hampshire Supreme Court agreed with the court below that since the tenants of the property, and not the property owner, had secured offsite parking, the Town could not claim that offsite parking was part of Dovaro’s nonconforming use of the land. Further, although the Board’s decision to eliminate four of the eight proposed parking spaces brings Dovaro’s lot into compliance with part of the new zoning ordinance, and this will prohibit Dovaro from reverting to parking spaces that lack sufficient ingress and egress, the Court said it does not require Dovaro to change his preexisting use of the lot to conform with the rest of the parking requirements. The Supreme Court also held that the change of ownership from rental units to condos does not extinguish the nonconforming status of the use of the property as dwellings. Among other things, the Court pointed to New Hampshire RSA 356-B:5 which provides, in part, that “No zoning or other land use ordinance shall prohibit condominiums as such by reason of the form of ownership therein. Neither shall any condominium be treated differently by zoning or other land use ordinance which would permit a physically identical project or project under a different form of ownership…” The Court concluded that the trial did not err by finding that the converting of seasonal apartments to year-round condominium units was not a substantial change in Dovaro’s preexisting nonconforming use.
Dovaro 12 Atlantic v. Town of Hampton, 2009 WL 48219 (N.H. 1/9/2009).
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2009/dovar003.pdf
