Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin November 25, 2011 1 Volume 51 No. 22 The court found section E afforded a reasonable person adequate notice of what it generally prohibited (e.g., three -story buildings) . However, the court also found it "remarkably unclear" with respect to how the four and one -half limitation was defined. More specifically, the court found that the ordinance failed to describe from what adjacent elevation point on River Road the height of a building must be measured to determine the build- ing's compliance with section E's height restriction. The court found this left the permit applicant with no notice of how he or she should design his or her site plan. It also left the Village without objective standards it could apply in determining a project's compliance. Still, noted the court, even in the absence of clear standards, if the conduct at issue fell within the core of the ordinance's prohibition, it would not be un- constitutionally vague. This is because if the conduct at issue falls so squarely in the core of what is prohibited by the ordinance, there is no substantial con- cern about arbitrary enforcement "because no reasonable enforcing officer could doubt the [ordinance's] application in the circumstances." Here, the court found that the ordinance as applied to the design and construction of Cunney's house was "not saved by resort to a clear core "; the height of Cunney's house did not fall so squarely within the core of sec- tion E's prohibition as to allay concerns regarding the risk of arbitrary en- forcement. This, said the court was because, under a reasonable interpreta- tion of the statute, Cunney's house; as built, did comply with section E. See also: Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000). See also: Grayned u City of Rockford, 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1974 Successive Variance Applications— Property Owner Applies for a Variance in 1994, Which is Denied When property owner applies for same variance in 2009, the zoning board refuses to consider the application on the merits Citation: Brandt Development Co. of New Hampshire, LLC v. City of Somersworth, 2011 WL 4844422 (N.H. 2011) NEW HAMPSHIRE ( 10112/11 )—This case addressed the issue of whether the facts and circumstances surround an identical variance appli- cation 15 years later constituted material changes in circumstances requir- ing the zoning board of appeals to conduct a full review of the variance request on the merits. The Background/Facts: Brandt Development Company of New Hamp- shire, LLC ( "Brandt ") owned a house and attached barn in a residential mul- tifamily district in the city of Somersworth, New Hampshire (the "City "). In © 2011 Thomson Reuters 9