228 maple street, llc v. town of rye, 04-e-0237 (rockingham super. ct. 2006)

8/9/2019 228 Maple Street, LLC v. Town of Rye, 04-E-0237 (Rockingham Super. Ct. 2006)

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THE STATE OF NEW HAMPSHIREROCKINGHAM, SS.UPERIOR COURT

Rye Board of SelectmenV .

Rye Zoning Board of Adjustmen t, and228 Maple Street, LLC, intervenor06-E-0007

228 Map le Street, LLCv.

Town of Rye04-E-0237

ORDERBefore the co urt is the Rye B oard of Selectme n's (SOS") appeal of a Rye Zon ing

Board of Adjustment ("ZBA") decision regarding a proposed condom inium conversionsoug ht by Intervenor 228 Ma ple Street, LLC, conso lidated with 228 Maple Street, LLC'saction bringing legal and equitable claims against the Town of Rye.

The property at issue is a 1.29-acre property on Oce an Bo ulevard in Rye, NewHampshire currently containing 10 cottage-type u nits and o ne residential unit; the cottage-type uni ts have bee n use d and ren ted season al ly . The uni ts were bui l t prior to theadoption of zoning in the Town and are, accordingly, a prior non-conforming u se. The siteis zoned for general residential use. 228 Maple Street, LLC bought the property intendingto convert the cottage-type uni ts into con dom inium ownership and prepared a si te planreflecting this propos al. The Town o f Rye Zoning Ord inance (the "Ordinance") providesthat a condom inium conversion may be al lowed by special exception. 228 Maple Street,


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LLC subm itted its Site Plan to the Town of Rye Planning Boa rd (the "Planning Board") andf i led an application for the condom inium conversions with the New Ham pshire AttorneyGeneral. The New Hampshire Attorney General conditioned approval o n submission of arevised site and floor plans and Town approval. The Planning Board's Technical ReviewComm ittee considered the Site Plan and was unw illing to forward it to the Zoning Board forreview until 228 Maple Street, LLC addressed technical issues, such as snow storage,dum psters, and year round use. 228 Maple Street, LLC addressed these co ncerns andagreed to l imit the propos ed con dom iniums to seas onal use. The Technical ReviewCom mittee then forwarded the Site Plan to the Zo ning Bo ard for special exceptionconsiderat ion. The Zon ing Board considered the m eri ts of the Site Plan on March 3,2004. The Zoning Boa rd decl ined to issue a rul ing and requested an o pinion from thetown cou nsel. On March 12, 2004, the Zoning Board conducted a non-public hearing anddism issed the application for lack of jurisdiction beca use the cabin s were not 'dwellingunits" under the definition of the Ordinance.

228 Maple Street, LLC then appea led the Zoning B oard's decision to this court,also request ing a wr i t of mand amu s order ing the Town to issue a l l necessary andappropriate approvals to com plete the condom inium conversion, seeking declaratoryjudgm ent that the Town of Rye's provisions regarding condom inium conversions iscontrary to State law, claiming an illegal taking in the form of inverse condem nation, andseeking attorney's fees. The court determined that the Zoning B oard did have jurisdictionand remanded back to the Zoning Board to m ake a determination on whether a change inuse had, in fact, occurred. The Zoning Board held another public hearing on September7, 2005 relating to the proposed co ndom inium conversion . The Zoning B oard determined


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..sss---------"----1--- that no change in us e had o ccurred and approved the special except ion to al low thecondom inium conversion. The BOS then moved for rehearing, and when its motion wasdenied, brought the instant appeal.

First, the BOS cha llenges the jurisdiction of the ZB A to consider the application fora special exception, claiming that the court put the ZBA in an u ntenable position throughits remand. The validity of the Ordinance as it deals with condom inium con versions isdirectly related to the BOS's challenge to the ZBA's Ju risdiction. As the court previouslynoted, the Ordinance "as written, results in an effective barrier against certain kinds ofaccom mo dat ions, which i t does not def ine as 'dwel l ing u ni ts ,' being conver ted tocond om iniums; thus , the intent of the RSA 35 6-B:6 to limit discrimination ag ainstcondom iniums solely as a form o f ownership is thwarted." 228 MaoleP, LLC v. Town ofRye, Rock ingha m Cty. Su perior Ct., No. 04-E-0237 (July 25 , 2005) (Order, Morrill, J.),

Zoning ordinances are presumed to be valid, and the challengers bear the burdenof proving them unlawful. See Town of Nottingham v. Harvey, 120 N.H. 889, 892 (1980).Land us e regulation "has customarily has been considered a feature of local governmentand an area in which the tenets are particularly strong." Koor Com mu nication v. City ofLebano n, 148 N.H. 618, 622 (2002) (quoting Eva ns v. Bo ard of Cou nty Com m'rs, 994 F.2d755, 761 (10th Cir . 1993)). Nevertheless, local au thority to reg ulate un der a zoningenabling act may be preempted by state law or policy. See North Country EnvironmentalServices, inc. v. Town o f Bethlehe m, 15 0 N.H. 606, 611 (2004). "State law preem pts locallaw also w hen there is an a ctual conflict between State and local regulation. . . . A conflictexists when a mu nicipal ordinance or regulat ion permits that which a State statuteprohibits or vice versa." Id.

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The relevant State condom inium legislation, RSA 356-B:5 s tates:No zoning o r other land use ordinance shall prohibit condom iniumsas such by reason of the form of ownership inherent therein. Neither shall

any condo minium be treated differently by any zoning or other land useordinance wh ich would perm it a physically identical project or developmen tunder a different form of ownership. No subdivision ordinance in any city ortown shall apply to any condominium or to any subdiV ision of any convertible land, convertible space, or unit unless such ordinance is by its express termsm ade applicable thereto. Nevertheless, cities and towns m ay provide byordinance that proposed conversion condom inium s and the use thereofwhich do not conform to the zoning, land use and site plan regulations of therespective city or town in which the property is located shall secure a specialuse perm it, a special exception, or variance, as the case m ay be, prior tobecoming a conversion condominium.Section 503.1 of Town o f Rye Zoning Ordinance permits "conversion of existing

dwelling units to condom inium own ership . . . as a special exception granted by the Boardof Adjustment, only if all the provisions herein are met. The criteria for a special exce ptiondetailed in Section 5 03.3 includes as the first criterion:

A. The dw elling un its which are subject to the reques t for cond om iniumconversion must, at the time of the request for condom inium conversion,exist as legal dwelling units pursuant to the ordinances of the Town of Rye.The burden shall be on the petitioner to demonstrate that the units sought tobe converted have legal status.

The Ordinance defines 'dwelling" as "[a] building designed for or used primarily by one ormo re families for l iving qua rters, but not including m obile home s, trailers of any kind,hotels, motels, lodg ing hous es, institutional hom es, residential clubs, tourist cam ps,cabins, or other com me rcial accom mo dations offered for occupanc y." (Ordinance,Appendix A at 64.) Thus, the tourist cabins at issue in this case are not dwelling units andare not eligible for a special exception for condom inium conversion u nder the terms of theOrdinance.

In Cohen v. Town of Henniker, however, the New Ha mps hire Supreme Cou rt,

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Interpreting 35 6-B:5, held that the statute "preclude [s] denial of a special use perm it,special excep tion, or variance where there is no ch ange in land u se." 134 N.H. 425, 429(1991). RSA 356-B:5 allow s a m un icipality to require a spe cial exception prior toconversion of apartment units, but "to be co nsistent with the rest of the statute, such arequirement m ay only be denied if the conversion would have an actual effect on the useof the land." 134 N.H at 428. The "'authority is overwhelm ing that a m ere chan ge fromtenant occupancy to ow ner occupanc y is not an extension of a non-conforming use ? Id. at429 (quoting Isabelle v. Newbury, 114 N.H. 399, 403 (1974) (Grimes, J., dissenting)). "

Section 503.3 of the Ordinance is in clear con flict with RSA 356-B:5. The plainlanguage of the Ordinance allows only dwelling units to be granted a special exception fora condo m inium con version. Thus , beyo nd the effects on tourist cabins alone, theOrdinance prohibits any and all comm ercial buildings or comm ercial accommodation fromconversion to a condom inium form of owne rship. Such a prohibition by reason of the formof own ership Is contrary to the State law of RSA 356-B:5. Cohe n, 134 N.H. at 429.Under Cohen, the on ly way the Town could deny the spe c ia l except ion is i f thecondo minium conversion wo uld result in an actual change in land use. Id Thus, the courtwil l consider whether the ZBA properly determined that the condom inium conversionwould not result in "an actual effect on the use of the land." U,

"A zoning bo ard's decision is subject to limited judicial review." Labrecaue v. Townof Salem , 128 N.H. 455, 457 (1986). Pursuan t to RSA 677:6, the ZB A's findings of factare presumed to be prima facie lawful and reasonable and the ZB A's decision will be setaside only when a court is persuaded by the balance of probabilities that it is unlawful orunreas onab le. Komi v. Town of Peterborou gh, 135 N.H. 37, 39 (1991) (internal quotations

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and citations omitted). "[T]he burd en of proof shall be upo n the party seeking to set asideany order or d ecision of the zoning board o f adjustment or any d ecision of the locallegislat ive bod y to sho w that the order or d ecision is u nlawful or unreaso nable:' Id.(internal quotations and citations omitted).

The ZB A heard evidence that no alterations to the cabins themselves wou ldoccur; the structures thems elves wo uld rem ain exactly the sam e. (Cert. R., No. 06-E-007, at 2-3, 9.) The BOS argu es that the ZBA 's determination that the con version w illresult in "no physica l im pact on the land," Id. a t 9, is un lawful and un reasonablebecause it did not consider "effect on land use in accordance with the Cohen holdingand because the proposed conversion would have a physical impact on the land withregard to additional parking spaces and a new septic system. The ZBA's determinationthat the condominium conversion would have no physical impact on the land is directlyrelevant to the qu estion of chan ge in u se. Salem v. Wickso n, 146 N.H. 328, 331 (2001).The lack of physical impa ct on the property and the continued seasona l use of thecottages support the ZBA's decision that only change resu lting from the proposedcon version is one o f owne rship. Cohen v He nnike r, 134 N.H. 425, 429 (1991). 228Maple Street, LLC prese nted eviden ce to the ZBA that, in fact, no im pact on the landwou ld occ ur. (Cert. R., No. 06-E-007, at 20-21.) The add itional parking was not, in factrequired, but was sugg ested at the Planning B oard stage a s a possibil ity. LI, at 8. Th erecord dem onstrates that the ZBA discuss ed and co nsidered the issue of sept icreplacem ent at length, and it conditioned its approval of the special exception on theapplicant receiving all necessary State approvals, which include s approval of the septic

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system. Id . at 9. Thus, the BOS has not met its burden of dem onstrating that the ZBA'sdecision was unlawful or unreasonable.

According ly , the court D ENIES the BOS's appe al . 228 Ma ple Street, LLC'smotion for d eclaratory judgment is GRANTED insofar as this order reflects a judgm enton the va l idi ty of the Ordinance 's requirem ents for a specia l except ion to a l lowcondom inium conversion. The court DENIES 228 Maple Street , LLC's requ est forattorney's fees, as it does not find eviden ce of bad faith or malice. RSA 677:14.

So ORDERED .

6 - -DATEOBE RT E. K. MORRILLPresiding Justice

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228 maple street, llc v. town of rye, 04-e-0237 (rockingham super. ct. 2006)

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