Posted by: Patricia Salkin | January 28, 2008

N.H. Supreme Court Finds Adjacent City Lacks Extraterritorial Authority to Impose its Density Requirements on Straddled Parcel

It is not uncommon for property owners to have land located within more than one zoning district, and at times, a landowner can find that their parcel is actually in two different municipalities.  This can complicate matters when the municipalities do not have coordinated planning and zoning for areas along their shared borders.  Such was the situation in a recent New Hampshire case, where the Supreme Court had to decide whether the City of Dover could impose its density requirements on that portion of the parcel located in the adjacent municipality of Rollinsford which would impact the viability of the nonconforming use status of the parcel.    

When the owner of a parcel containing four apartment buildings (with 30 units each) acquired the land, it was located entirely within the City of Dover.  The landowner also owns an adjacent parcel in Rollinsford on which had been constructed a recreation area and pool to serve the apartments. At some point after the landowner purchased the apartment buildings, Dover and Rollinsford adjusted a municipal boundary line, and two of the buildings now lie partially within Rollinsford.  Several years later, Dover adopted a density requirement for multi-family buildings of 5,000 sq. ft. of land, excluding wetlands, per unit. This caused the Dover lot to become nonconforming. The landowner sought approval in both Dover and Rollinsford for the construction of two additional buildings containing 63 apartment units. Both buildings would be located on the Rollinsford parcel, while sewer, utilities and road access would be provided through the Dove parcel.  Rollinsford has no density requirement.  The Dover zoning board of appeals upheld the building official’s denial approval for the Rollinsford Project because it failed to comply with the Dover density requirements. The issue posed to the Court was whether the proposed construction, occurring solely within one municipality, may be considered an expansion of a nonconforming use on contiguous land solely within another municipality. 

The New Hampshire Supreme Court turned to a State statute that provides in part, “An owner of contiguous land which is located in more than one municipality may treat a municipal boundary line as an existing boundary between lots…unless the existing or proposed use of land or arrangement of structures in one of the municipalities requires and is dependent upon land or improvements located in the other municipality…in order to fulfill the land use ordinances or regulations of the first municipality with respect to matters as lot size, density, frontage, uses or accessory uses, set-back or access, in order to comply with applicable state or federal regulations.”  See, RSA 674:53, I. The Court disagreed with the trial court’s inferences that the lots be treated as one and that since the substantial number of existing units are in Dover the proposed change for the Rollinsford portion constitutes a substantial change and expansion of the nonconforming use in Dover, thereby stripping the entire project of its nonconforming status. The Court said that this inference incorrectly requires that the entire use of the lot be in compliance with the Dover density requirement. In further explanation of its interpretation, the Court looked to other provisions in the statute which provide, in part, that where the owner treats contiguous land in more than one municipality as a single lot, “all uses of land, buildings or structures shall comply with the regulations or ordinances of the municipality in which they are located.” RSA 674:53 III(a).  The statute continues, that where the owner opts for this, and has “fulfilled or proposes to fulfill the requirements of one municipality, through the inclusion of land or improvements located in an adjoining municipality, such owner or the owner’s successors shall not thereafter use that land or those improvements in a manner such that those requirements or the first municipality are no longer fulfilled.” RSA 674:53 III(b).  As a result, the Court concluded that taken as a whole, this statute “evinces an intent to subject the uses, buildings and structures lying within a municipality solely to the regulations and ordinance of that municipality, except where land or improvements have been “borrowed” pursuant to subparagraph (b).” the Court continued, “had the legislature intended that the uses and improvements on such a now-single lot be subject to the regulations and ordinances of all municipalities in which a single lot is located, it could have easily so provided.”  

The Court also examined another paragraph in the statute which provides in relevant part, “…provided however that the sole issue which may be addressed or regulated by the adjoining municipality shall be the adequacy of such street access, and the impact of the proposal upon it.” RSA 674:53 IV.  This, said the Court, clearly limits the adjoining municipality’s review to access-related issues. In addition, RSA 674:53 VI provides in part, that “[e]ach land use board shall be responsible for rendering a decision on the subject matter within its jurisdiction.” This is evidence that each municipality has jurisdiction only over that part of the parcel within its boundaries.  To construe this otherwise, said the Court, “would allow the neighboring municipality to prevent or otherwise regulate the entire project in the first municipality no matter how slight the overlap into the neighboring municipality. This, said the Court, would be an absurd result.  

Churchill Realty Trust v. City of Dover Zoning Bd. of Adjustment, 2008 WL 151131 (N.H. 1/15/2008). 

The opinion can also be accessed at:

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