Posted by: Patricia Salkin | August 14, 2013

NH Supreme Court Upholds Board’s Finding of Voluntary Lot Merger

Charles Roberts (“Roberts”), had appealed an order from the Superior Court of New Hampshire affirming a decision of the Town of Windham Zoning Board of Adjustment (“ZBA”) that denied his request under RSA 674:39–aa to reverse the administrative merger by the Town of Windham (“Town”). Roberts had owned a piece of land in Windham (the Property). The Property had been identified as a single lot on the Town’s tax map since the 1960s.  Originally, the Property had been recorded in the County Registry of Deeds (the Horne plan) by Clara B. Horne (“Horne”) in 1913, with seven separate lots that are five full lots (9 through 13) and two partial lots (8 and 14).  In 1918, Horne conveyed lots 9 through 11, by a single deed, to Robert’s grandfather, George E. Lane (“Lane”) . In 1920, Horne also deeded lot 12 to Lane. In 1926, Lane also obtained a portion of lot 8 (“lot 8”).

Lane built structures on all of the lots except lot 12. On lot 10, Lane built a seasonal cottage, a garage, a screen room, and a dock. The seasonal cottage extended across the boundary line onto lot 11. The garage was two inches from the boundary line between lots 10 and 9 and faces toward lot 9. Thus, one has to cross lot 9 to access the garage. On lot 9, Lane built a “multi-use building” (the bunkhouse), woodshed, privy, dog house, and another dock. The bunkhouse straddled the boundary line between lots 9 and 8. A single driveway provided access from the road to lot 10 over lot 9. In 1927, Lane conveyed all of the lots to Alice Lane, who then conveyed them to Ruth Lane Roberts. In 1962, Ruth Roberts acquired title to lot 13 and one half of lot 14 (“lot 14”). In 1995, Ruth Roberts conveyed the property to Roberts.

In the 1960s, the Town administratively merged the lots into a single lot for tax purposes and it was given a single street address. Neither Roberts nor any previous owner applied to the Town to merge the lots.  In 2011, the legislature enacted RSA 674:39–aa, which provided that lots that were involuntarily merged prior to September 2010,” will be restored to their pre-merger status upon request by the owner, but subject to certain conditions. An involuntary merger meant lots that were merged by municipal action for zoning, assessing, or taxation purposes without the consent of the owner. An owner was not entitled to restoration if any owner in the chain of title voluntarily merged his or her lots.  A voluntary merger meant any overt action or conduct that indicated an owner had regarded the lots as merged. The municipality shouldered this burden of proof.

Roberts applied to the Windham Board of Selectmen (Selectboard) to unmerge the lots to create four lots consisting of: lots 8 and 9; lots 10 and 11; lot 12; and lots 13 and 14.  The Selectboard determined that the Town had involuntarily merged lots 12–14. However they found that lots 8 through 11 had been voluntarily merged and denied Robert’s request to unmerge the four lots. Their decision was made on two grounds: First, the Selectboard relied upon the fact that lots 9 through 11 were conveyed to Lane as one tract in a single deed; Second, the Selectboard had determined that the Town had proved that there was an overt action based upon the layout of the structures.

On appeal, the ZBA affirmed the Selectboard’s decision. Roberts moved for a rehearing, which the ZBA denied. Roberts then appealed the ZBA’s decision to the Superior Court of New Hampshire, who affirmed the decision also. Roberts then appealed to the Supreme Court. On appeal the court held that: (1) the fact that the statute expressly placed burden of proof on municipality to prove voluntary merger of lots, did not alter the deferential standard of review on appeal of a zoning decision, and (2) the evidence was sufficient to support the zoning board’s finding of voluntary merger of Robert’s lots.

The court stated that RSA 674:39–aa expressly places the burden of proof on the municipality to prove a voluntary merger; however, it does not provide for an alternate standard of review.  Accordingly, the court held that the Superior Court did not make an error in applying the usual deferential standard of review. Further, Roberts had argued that the Superior Court made an error in upholding the ZBA’s decision to affirm the Selectboard’s finding of “voluntary merger” of lots 8 through 11 because the evidence before the Selectboard was insufficient to satisfy the Town’s burden.  The court noted that in upholding the ZBA’s decision, the Superior Court had relied upon the physical characteristics of the lots and their structures and upon the owners’ acquiescence to taxation, but concluded that the fact that Horne conveyed separate parcels of land in one deed does not indicate intent to ignore the separate lot designations. The court agreed with the lower court that Horne’s conveyance of lots 9 through 11 as one tract in a single deed did not support a finding of voluntary merger and the court also acknowledged that the acquiescence to taxation as a single lot did not support a finding of voluntary merger.  On the other hand the court stated that the lots’ physical characteristics were central to the decision. The court upheld the finding that the garage on lot 10 was constructed within two inches of lot 9 and faces toward lot 9; that the lots share a driveway; and those ancillary buildings, such as the bunkhouse, are common of a “waterfront estate.”  The court stated that the Superior Court in affirming the ZBA’s decision, considered “the use of the property in its entirety.” That the totality of the evidence had reasonably supported a finding that Robert’s predecessors had voluntarily merged the lots.

Roberts v Town of Windham, 2013 WL 3724899 (NH 7/16/2013)

The opinion can be accessed at:

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