Posted by: Patricia Salkin | December 20, 2008

NH Supreme Court Finds Zoning Ordinance Imposing Restrictions on Private Dock Preempted by State Law

In 1991, the Town of New London enacted a zoning ordinance that designated the property owner’s (Lakeside) lot within a “shore land overlay district” and prohibited the use of waterfront common areas for lake access except in compliance with the provisions of the ordinance and with planning board approval. The ordinance defined “common area” as one “used by a group of [three] or more unrelated persons or by an association, club or organization consisting of [three] or more members” and it also requires that use of a common area for business or commercial purposes be subject to special exception. In 2002, the Town asserted that the use of the owner’s dock by multiple unrelated persons violated the 1991 ordinance.  Lakeside asserted that its use of the dock predated the 1991 ordinance and it applied for an exemption but the Board of Selectmen determined that no preexisting nonconforming use existed. The zoning board, however, reversed and found that at least four of the eleven users (three individuals plus Lakeside) predated the 1991 ordinance.  The zoning board later ruled that since three of owners predated the ordinance, and since users typically invite guests, “there may be no more than six (6) users and six (6) boats at the dock at any one time.”  Further, the board intimated that renting dock space exceeded the scope of the “personal” use by the three owners.

 

In reversing the decision of the superior court, the New Hampshire Supreme Court held that state law and regulations preempt the ability of local government to restrict personal use of Lakeside’s dock.  Lakes comprised of more than ten acres, such as Lake Sunapee here, are controlled by the State, and the State has enacted a series of statutes regulating the right to boat and the right to use and enjoy public waters so as to avoid piecemeal on-water regulation. The Court explained that in addition to the common law right to boat recreationally in Lake Sunapee, Lakeside appears to own littoral rights, which are incidental property rights associated with ownership of lakeshore property. When the State allowed Lakeside to repair its dock in 1995, the Court said that the State placed its imprimatur on Lakeside’s use of the dock for personal boating. The Court found that the Town lacks specific state statutory authority to infringe upon the right to boat, and concluded that the zoning board acted ultra vires by imposing the user and boat limit on Lakeside.  

 

Lakeside Lodge, Inc. v. Town of New London, 2008 WL 5101595 (N.H. 12/5/2008).

 

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/lakes135.pdf

 


Responses

  1. I have practiced land use law in Minnesota for 35 years. Great web site. Do you automatically send out the newsletter by email? If so, I would like to receive it.Thanks.

    • Thanks Bruce. You can sign up at the blog site to receive an email everytime there is a posting (daily). Gld you like the site.


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