Agenda - Planning Commission - 08/05/2010

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Zoning Bulletin June 10, 2010I Volume 4I No. 11 Between October 2005 and August 2007, Pike did not produce any asphalt at the plant. During that time, Pike: performed maintenance and repairs at the plant; continued to advertise asphalt production at the plant on its Web site; and submitted bids to municipalities for proj- ects involving asphalt to be produced at the plant. Although Pike did receive bids for asphalt during that time period, Pike had other facili- ties in different locations "that were more suitable for the bids." In June 2007, abutters of the plant (the "Abutters") argued to the town's planning board that Pike's nonconforming use of making as- phalt had been discontinued under the Ordinance. The planning board determined that there had been "no discontinu- ance of use." The Abutters appealed to the town's zoning board of adjustment (the "ZBA"). The ZBA concluded that Pike's nonconforming use had been abandoned and that Pike was therefore ineligible to recommence asphalt production under the Ordinance. The ZBA based that deter- mination on the following: (1) consideration of the "spirit of the or- dinance" in interpreting the Ordinance; (2) determination that the nonconforming use at the plant was "the production of asphalt"; and (3) determination that Pike's intent as to abandonment of the noncon- forming use was "irrelevant." The Abutters appealed to the Superior Court. The Court reversed and remanded the ZBAs decision. The Court held that: (1) "the ZBA relied upon improper considerations in interpreting the [O]rdinance"; (2) "the ZBA erred in defining 'use' narrowly as the mere production of asphalt, thereby finding the nonconforming use discontinued"; and (3) "the ZBA should have considered whether Pike intended to aban- don its pre-existing nonconforming use." Pike appealed. The Court's Decision: Judgment of Superior Court affirmed in part and reversed in part. The Supreme Court of New Hampshire concluded that Pike had not abandoned its nonconforming use. In so concluding, the court agreed with the Superior Court's first two conclusions, but not its third. In reaching these conclusions, the court looked at the "plain and un- ambiguous" language of the Ordinance and interpreted that language according to its "common and approved usage." The court fast held that: given the language of the Ordinance, the ZBA should not have looked to "the spirit of the [O]rdinance" in de- termining whether the plant's use had been discontinued; it should only have looked to whether Pike had discontinued its nonconforming use. The plain language of the Ordinance provided that if a nonconform- i ing use had been discontinued for more than a year, it could not be re-established. Whether the "spirit" of the Ordinance was to "restrict rather than increase nonconforming uses" was irrelevant. Pursuant to © 2010 Thomson Reuters 3 163