Appellants, Woodward and other abutting property owners of the respondent, Pike Industries, Inc., (Pike) operators of an asphalt plant, appeal from a decision of the Superior Court that reversed a decision of the zoning board which held that Pike discontinued its nonconforming use of the asphalt plant and thus could not re-establish such use. The appellants argue that the Superior Court erred by: deciding that when interpreting the ordinance, the ZBA should not have considered the “spirit of the ordinance;” that the ZBA’s definition of “use” was incorrect; and, that the ZBA should have considered whether the respondent intended to abandon the nonconforming use. The Superior Court both affirmed in part, that the “spirit of the ordinance” should not be considered as it was, and that the wrong definition of “use” was utilized by the ZBA, and reversed in part, that the intent of Pike need not be considered.
Addressing the appellants’ first claim, that the “spirit of the ordinance” should have been considered, the Supreme Court affirmed the superior court’s ruling that the ZBA should not have began its analysis with this consideration. If an ordinance is clear and unambiguous, the language should be looked at to determine legislative intent. This ordinance was not ambiguous, as it is clearly stated that once the nonconforming use has ceased for one year, it shall not be re-established. The intent is clear in the language of the ordinance, and no intent or “spirit” is required to be ascertained. The considerations to be made are, in this case, solely whether there was discontinuance and if so, the duration.
The court then addressed whether the ZBA’s definition of “use” was correct. The ZBA defined “use” here as the production of asphalt. Conversely, Pike argued, and the superior court agreed, that the definition of “use” should have been a broader than mere production, including other business operations such as employee training and upgrading the facility. The Supreme Court affirmed the superior court ruling, as there are activities that the respondent could engage in, other than the production of asphalt, that would constitute a use of the plant, such as keeping it ready for production. (The plant is used continuously by the owners which no output.) Also, the Court noted that the plant was ready and able to produce asphalt, but there were no suitable orders for Pike to produce at this specific plant.
Lastly, the Supreme Court considered the appellants’ claim that the superior court erred in ruling that the ZBA should have considered Pike’s intentions to abandon the nonconforming use. The Supreme Court reversed the superior court’s ruling and held that a determination of such intent was not required under this ordinance. When abandonment is defined in an ordinance, and no mention is made of a consideration of intent, then such a consideration is not required. The present ordinance states that all that is necessary is that the nonconforming use must cease for “any reason.” This defines what is required and negates any element of intent to discontinue.
Pike Industries v. Woodward, 2010 WL 1816355 (N.H. 5/7/2010).
The opinion can be accessed here.
