The municipality enacted a zoning ordinance prohibiting the building of any structure more than 900-feet above sea level. The plaintiff sought a permit to build a house at an elevation above the 900-foot limit. The permit was denied and the plaintiff appealed to the Zoning Board of Adjustment (ZBA) requesting a variance. After the appeal was denied by the ZBA, plaintiff commenced an action with the Superior Court alleging inverse condemnation by regulatory taking.
The court noted that a takings claim is ripe when “the government entity charged with implementing the regulation has reached a final decision regarding the application of the regulations to the property at issue” Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. In this case, the ZBA must make a final decision on plaintiff’s variance before the claim is ripe. Plaintiff claimed it would be useless to submit another application to the ZBA for their discretionary review (and a final decision) because (1) his plan clearly shows his proposed building to be at the lowest point of the property that can support vehicular access and state septic and (2) the Zoning Board cannot legally accept a new application from him because there has been no change of circumstances affecting the merits of his application.
As to the first argument, the court found that it was not clearly shown that the proposed building is the lowest point on the property. The language in plaintiff’s application quotes “the plan shows the first available site” implying that there are other, possibly lower sites that plaintiff could consider. Additionally, the affidavit submitted by a trustee of the plaintiff stating that the site selected is the lowest site accessible to give access to the property is only a conclusory statement, unsupported by facts necessary to defeat a summary judgment.
Plaintiff’s second argument, that the Zoning Board cannot accept a new application was also without merit. The court concluded “a party is not precluded from submitting a subsequent variance application if explicitly or implicitly invited by the ZBA and is modified to address its concerns.” The ZBA meeting minutes clearly show that the board was willing to consider “another, less ambitious plans for the [plaintiff’s] property.” Likewise, they were open to the idea of granting a variance above the 900-foot mark, just not at the specific site plaintiff submitted.
Because the ZBA has not reached a final decision as to the property at issue, plaintiff’s takings claim was not ripe.
Hill-Grant Living Trust v. Kearsarge Lighting Precinct, 2009 WL 4825163 (N.H Sup.Ct. 12/16/2009)
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2009/hillg140.pdf
