Posted by: Patricia Salkin | August 12, 2019

NH Supreme Court Finds the Doctrine of Municipal Estoppel Did Not Bar Town From Enforcing Its Zoning Regulations and Building Code

This post was authored by Matthew Loeser, Esq.

Plaintiff owned a 4.2-acre parcel in Rye, which had been part of a larger parcel owned by the Green family in the early 1990s. The Green homestead was still standing, and the plaintiff resided there. When the Greens still owned the property, one of the Green brothers built a tool shed: a small, one-story structure with no chimney or heating unit. In the mid-1960s, it was improved by the addition of a tiny kitchen, bathroom, dormered second half-story, electrical service, a connection to a water well, and an underground holding tank for waste water. The tool shed/cabin was not used as a residence at any time before the Town adopted its first zoning ordinance in 1953, which prohibited more than one dwelling per lot.

The record reflected that the tool shed/cabin was next used as a dwelling in 1991 when the then owners rented it out as a second dwelling. The Town building inspector issued a cease and desist letter to those owners, explaining that using the tool shed/cabin as a second dwelling violated the ordinance. The letter stated that the tool shed/cabin “is not, nor has it ever been, a legal dwelling,” and, thus, “could not be legally occupied.” Although the water district disconnected the tool shed/cabin from the water line, the owners reconnected it, ignored the cease and desist letter, and rented out the cabin to multiple tenants from 1991 to 2000, when they sold the parcel to the plaintiff’s immediate predecessor-in-title, Robert MacLeod. In 2003, one of MacLeod’s neighbors complained that MacLeod had installed a mailbox for the tool shed/cabin. The building inspector sent a letter to the complaining neighbor dated July 8, 2003, which stated the second dwelling was a legal use and may continue indefinitely. In 2005, MacLeod obtained an opinion letter from an attorney regarding the lawfulness of using the tool shed/cabin as a second dwelling. The trial court inferred from the attorney’s letter that neither MacLeod nor his attorney knew about the July 8, 2003 letter. MacLeod sold the parcel to the plaintiff in 2006. This case arose after the plaintiff appealed the building inspector’s 2016 notice of violation to the Town’s zoning board of adjustment (ZBA”), which upheld it. the trial court upheld the ZBA’s decisions and ruled in favor of the Town on the plaintiff’s municipal estoppel claim.

On appeal, the plaintiff’s main contention was that he “carried out his own due diligence and inspected the property and reviewed the property file,” which contained the July 8, 2003 letter, “as part of his preparation to purchase said property.” The court noted, however, that there were no documents in the appellate record demonstrating that plaintiff saw or was aware of the July 8, 2003 letter before he purchased the subject property in 2006. Moreover, in plaintiff’s August 11, 2016 email to his counsel, the plaintiff stated that he read the July 8, 2003 letter “last week.” As such, plaintiff could not be said to have relied on that letter. Accordingly, the court upheld the trial court’s determination that the doctrine of municipal estoppel did not bar the Town from enforcing its zoning regulations and building code.

Manuel Barba v. Town of Rye, 2019 WL 2743416 (NH 6/24/2019)


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