Agenda - Planning Commission - 02/05/2009

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(~) December 25, 20081 Volume 21 No. 24 was not. the "concrete and particula~ized injury" required under the Constitution for standing: . Equitable Waiver-After home is built on non-shorefront lot, owners learn their easement to shore frontage violates ordinance " ) Owners seek equitable waiver from requirements of ordinance Citation: Taylor v. Town of Wakefield, 2008 WL 4756401 (N.H. 2008) NEW HAMPSHIRE (1 0/31/0 8)-Peter and Amy Harrington construct~ ed a home on property they owned in the town (the "Property"). The Property was a non-shorefront lot. The lot included a thirty-five-foot wide waterfront access easement (the "Easement") over Greg and Gail Taylor's waterfront lot. The Easement granted the Harringtons' lot thirty-five feet of frontage access on Pine River Pond. The Easement had been created by the' prior owners of both lots, James Doyle and Charles McLaughlin. After the Harringtons completed construction of their home, the town notified Doyle and McLaughlin that the Easement violated a town zon- ing ordinance that required the Easement to have a minimum of 100 feet of shore frontage. . J The town sought and obtained a court ruling that the Easement vio- lated the ordinance. Subsequently, the Harringtons applied to the ZBA for an equitable waiver of the 100 foot shore frontage requirement. . Under New Hampshira. Revised Statutes Annotated ("RSA") S 674:33-a, I, an applicant could obtain an equitable waiver if four cri- teria were met: (a) the violation was not noticed or discovered by any owner or municipal official until after the ~tructure in violation had been substantially completed; (b) the violation was not an outcome of the ig- norance of the law on the part of any owner, but instead was caused by either a good faith error in measurement or calculation made by an owner, .or by an error in ordinance interpretation or applicability made by a municipal official; (c) the physical or dimensional violation did not constitute a public or private nuisance, nor diminish area property values or adversely affect future uses; and (d) the cost of correction so far out- weigh~d any public benefit to be gained, that it would be inequitable to req1,1ire the violation be corrected. Th'e ZBA granted the Harringtons their requested equitable waiver. "The Taylors appealed; . The superior court held that the ZBA decision was reasonable because the Harringtons met the four statutory criteria for equitable waiver. , ) ". _/ @ 200l3.. Thomson Reuters/West 7 63