Agenda - Planning Commission - 04/02/2009

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Zoning Bulletin FebruarY 25, 20091 Volume 3 I No.4 ) Dovaro appealed. The trial court partially reversed and modified the Board's decision. The court ordered thatDovaro's present nonconform- ing use must be permitted to continue "regardless of the form of owner- ship of the units." The court ordered the Board to grant the application "without the parking spaces it deems offensive." The town appealed. Meanwhile,. in light of the court's ruling, Dovaro submitted a revised application. It now proposed that the seven condominium units would have eight parking spaces, stacked in two adjacent columns. The Board granted Dovaro's revised application, but with condi- tions. It found that only four of the eight proposed parking spaces were "inoffensive and safe," and required Dovaro to therefore secure offsite parking for some imits in perpetuity. DovarQ appealed. This time, the trial court upheld the Board's deci- sion to eliminate four parking spaces. However, the court reversed the Board's decision to require Dovaro to secure perpetual offsiteparking. The town appealed. (And, the town's two appeals were consolidat- ed.) On appeal, the town argued: (1) it could require Dovaro to se- cure offsite parking for some units in perpetuity since "the utilization of off-site parking was part and parcel of the pre-existing, noncon- forming use of [the]site;" (2) the lower court had effectively stripped Dovaro's preexisting nonconforming use of its protected status when ) it upheld the Board's requirement that four of the proposed parking spaces be eliminated, and therefore Dovaro had to now conform in all respects to the Ordinance's parking requirements; and (3) converting the seasonal apartments into year-round condominiums substantially changed or expanded Dovaro's non-conforming use, such that Dovaro now had to comply with the Ordinance, DECISION: Affirmed. The Supreme Court of New Hampshire rejected the town's first ar- gument. The town could not require Dovaro to secure offsite parking based on an argument that the offsite parking was part of the preex- isting, nonconforming use. Rather, held the court, since the tenants of the property (and not Dovaro as the owner) had secured offsite park- ing, use of offsite parking was not part of Dovaro's nonconforming use of the lot. Rejecting the town's second argument, the court held that Dovaro was not required, after bringing the preexisting uSe into compliance with one parking requirement, to bring the preexisting use into com- pliance with all of the Ordinance's parking requirements. The court acknowledged that the Board's decision to eliminate four of the pro- posed eight parking spaces brought the parking on Dovaro's lot into -" compliance with the Ordinance's requirement that all parking connect " with a "street or immediately to a driveway that affords sufficient in- @ 2009 Thomson Reuters 7 c 97