Agenda - Planning Commission - 02/05/2009

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Zoning Bulletin The Taylors appealed. They argued that S 674:3.3-a, 1's conditions for waiver had not been met. .~" DECISION: Reversed. The Supreme Court of New Hampshire concluded that ~ 674:33-a, I's conditions for equitable waiver had not been met. Specifically, the court found that subsectIon (b) of S 674:33-a, I had not been met. The Ease- ment's failure to meet the 100 foot shore frontage requirement was nei- ther caused by: (1) an error in measurement or calculation by the owner; or (2) an error by a municipal permitting official in interpreting or apply- ing the ordinance. In reaching its conclusion, the court rejected the Harringtons' argu- ment that the original misinterpretation of the ordinance by Doyle and McLaughlin constituted an error in calculation on the owner's part and th~refore fell within the statute. The court found that the term "calcu- lation" in S 674:33-a, I(b) meant a "mathematical process." It did not mean an owner's misinterpretation of the zoning ordinance. Although the statute provided that an error interpreting a zoning ordinance by certain municipal officials could. be grounds for an equitable waiver, an owner's error in interpreting a zoning ordinance was not. In support of the Harringtons' quest for an equitable waiver, Doyle and McLaughlin (who had intervened in the case) had asserted that state and local officials commonly construed S 674:33-a, I(b) to encompass an (.) owner's "honest" or. "legitimate mistake'" The court found that inter- pretation went beyond the legislative intent of the statute. Rather, under the plain language of S 674:33-a, I(b) only an honest or legitimate error in measurement or calculation by an owner or in interpretation or appli- cability by certain municipal officials allowed for equitable waiver. As to the matter at issue, the court found that if there was any good faith error in interpreting or applying the ordinance when the Easement was created, it was not on the part of any town official. The Easement was created by private parties. The court also found that there was no evidence that Doyle and McLaughlin created the easement as a result of error in measurement or calculation. Accordingly, the court concluded that the Harringtons were not entitled to an equitable waiver under S 674:33-a, I(b). See also: Portsmouth Country Club v. Town of Greenland, 152 N.H. 617,883 A.2d 298 (2005). I Case'Note: The Taylors had also argued that one of the ZBA mem- bers should have recused herself from the matter because she was a f9nher employee of McLaughlin and was aware that McLaughlin was llvolved in the case. The court held that the mere fact that the ZBA member had been employed. by McLaughlin did not disqualify her from the case. Moreover, since there was nothing that would disqual- ) 8 @ 2008 Thomson Reuters/West 64