Posted by: Patricia Salkin | February 5, 2010

Stipulation Allowing Continued Use of Property After Variance Denied Not Enforceable

When Alfred Huard purchased property in a residential zone, he intended to use it for both a residence and operating his transmission repair business.  Although the prior owner had obtained a use variance in 1985 which permitted repair of “carburetors, fuel pump alternators, etc.,” two years after moving in, Huard received a letter stating that operation of a transmission repair business was not allowed in a residential zone.   The letter further stated that the 1985 use variance had expired due to non-use for one year or longer.  Huard did not appeal; however, he did apply for a new use variance, which was denied.  Without filing a motion for rehearing, Huard filed a petition for injunctive relief and declaratory judgment. 

Two months before Huard filed his petition, the town voted to repeal the ordinance under which the 1985 variance expired.  In light of this change, the town and Huard entered into a stipulation which stayed Huard’s action pending further proceedings at the local level and allowed Huard to resume use of the premises for his repair business, pending a resolution of the Petition.  In accordance with the stipulation, the town’s administrative official issued a decision stating that the variance remained in effect and encompassed Huard’s transmission business.  Owners of the property abutting Huard’s appealed the decision to the Zoning Board of Appeals (“ZBA”) who reversed the decision, holding that the variance had expired many years earlier and thus could not be revived simply because the ordinance had changed.  Huard filed a motion to enforce the settlement, which the court denied.   The town then filed two motions for summary judgment, arguing that jurisdiction was lacking as Huard failed to exhaust his administrative remedies and that the ZBA’s determination was not an unconstitutional taking; both motions were granted. 

On appeal, Huard argued that the stipulation limited the scope of the proceeding to whether Huard’s business was within the scope of the 1985 variance and therefore the ZBA’s decision contravened the terms of the agreement.  The court disagreed, and determined that the stipulation did not limit the appeal proceeding and therefore the ZBA did not err in denying Huard’s position.   Additionally, Huard argued that the court erred in granting the town’s motions.  The New Hampshire Supreme Court upheld the granting of the town’s motion for summary judgment based on Huard’s failure to exhaust administrative remedies since, although he was not required to exhaust his administrative remedies if the question was one “peculiarly suited for judicial rather than administrative treatment,” the question of whether the expiration provision applied to the variance was not a question of this sort.  Additionally, the court held that with respect to his takings claim, Huard failed to demonstrate that a genuine issue of material fact existed as to whether the value of his property had been reduced.  The court noted that Huard had purchased the property for both business and residential and his ability to live in the house was unaffected by the lack of the use variance and thus a taking was not established under either the state or Federal constitutions. 

Huard v. Town of Pelham, 2009 WL 5150346 (N.H. 12/31/2009)

This opinion is available at:

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