Posted by: Patricia Salkin | February 23, 2021

NH Supreme Court Concludes the Proposed Construction is Not in Conformance with the Existing Variance and with the Limitation Defined in the Ordinance

This post was authored by Olena Botshteyn, Esq.

Intervenors’ residence is located in the rural residential district of the town of Madison. The current structure is not in conformance with the setback requirements of the district. With respect to the preexisting nonconforming uses and structures, the zoning ordinance provides that such structures may be expanded in size subject to certain conditions. One of the conditions is a limitation on expansion to a “total of fifty-percent (50%) of the square foot area of the first floor footprint of the existing structure”. Another condition requires the expanded structure be “no taller above sea level than the highest roofline of the existing structure”. In 2009, the prior owners of the property sought and obtained a variance from the ordinance’s height requirement to add a second story to the existing structure. The variance was not realized, however, it never expired. Intervenors were planning to demolish the existing structure and construct a new structure in its place. When doing so, they relied on the 2009 variance. In this case, plaintiffs who own an abutting property argue that intervenors’ proposed expansion of property violates the conditions of the variance and the ordinance’s “50% limitation.”

First, the court concluded that the proposed new structure is not in full conformance with the variance. The variance allowed the height of construction to be 513.92 feet above sea level, and the proposed structure was in conformance with such a requirement. However, the variance further required that “[t]he existing footprint shall not expand laterally.” The town argued that this was not a condition of approval, since this statement simply referred to the fact that the prior owners sought to expand the structure only vertically. The court concluded that since the variance expressly states that the grant is “subject to … conditions,” prohibition of lateral expansion of the existing footprint shall be viewed as condition. The court further stated that since the proposed structure expanded the footprint, such construction would be in violation of the variance and interveners cannot rely on it.

With regard to the 50% limitation requirement, the court concluded that the proposed structure is not in compliance with it. While the Town argued that this provision applies only to horizontal expansions, the court interpreted this provision differently, referring to the context, and decided that 50% limitation applies both to horizontal and vertical expansions of structures. Thus, the court concluded that an expansion of 4,546 square feet over the existing building would be beyond the 50% limitation, as the existing one-story structure is 2,310 square feet and the allowed expansion is 1,155 square feet.

The New Hampshire Supreme Court reversed the decision of the trial court, concluding that the intervenors’ proposed structure was not in conformance with the conditions of pre-existing variance and with the square-footage limitation defined in the zoning ordinance.

Connolly v Town of Madison, 2021 WL 688667 (NH 2/23/2021)


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