Posted by: Patricia Salkin | January 8, 2019

NH Supreme Court Upholds Grant of Equitable Waivers to Lakefront Property Owner for Additions Constructed in Violation of Town’s Zoning Ordinance

This post was authored by Matthew Loeser, Esq.

Plaintiffs David F. and Katherine W. Dietz appealed an order of the Superior Court, which upheld a decision by the zoning board of adjustment (“ZBA”) to grant to the intervenor, Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town’s zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee.
On appeal, the Dietzes first argued that the trial court erred because RSA 674:33-a required that the ZBA make written factual findings as to each element of the statute before granting equitable waivers. The court first noted that the equitable waiver statute, unlike the variance statute, contained the additional requirement that a waiver can be issued “if and only if the board makes all of the following findings.” As such, the court determined that this language only required that the ZBA make findings, not that it must set forth those findings in writing.
The Dietzes also contended that the trial court erred when it ignored the language in Paragraph I of the ordinance, which required that the “past construction or investment was made in ignorance of the facts constituting the violation.” In response, Sawyer Point argued the “ignorance of the facts” language in Paragraph I(d) should be disregarded because to give it effect would render Paragraph II’s waiver of the ignorance requirements a virtual nullity. Sawyer Point further alleged that, while it knew the 1999 Addition would be built within the setback, it did not know that building on the existing footprint would constitute a violation, since the building inspector had granted the building permit. The court held that its interpretation of Paragraph I(d) needed to be broad enough to encompass the situation in which an applicant relied on the misinterpretation of an ordinance by a municipal official in issuing a permit within that official’s scope of authority. As such, the court rejected this contention.

The Dietzes next claimed that the trial court erred in sustaining the ZBA’s decision with respect to the “public benefit to be gained” by correction of the violation. Specifically, the Dietzes argued that the ZBA failed to consider the cumulative effect of the failure to enforce the lakefront setback throughout the Town, rather than just the impact of the specific violations at issue in this case. The court found, however, that this requirement applied to the granting of a varience, and did not apply to the equitable waiver statute.
Laslty, the court found that even if we were to assume that Sawyer Point’s improvements exceeded the maximum lot coverage standards, there was nothing in RSA 674:33-a that prohibited a property owner from seeking partial relief from the Town’s zoning ordinance. Accordingly, the Dietzes’ appeal was dismissed.
Dietz v. Town of Tuftonboro, 2019 WL 275312 (NH 1/8/2019)


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