Agenda - Planning Commission - 03/05/2015

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Zoning Bulletin January 10, 2015 1 Volume 9 I Issue 1 In April 2012, when construction of the Dembiecs home was substantially complete, the Town's compliance officer advised the Dembiecs that he would not issue a certificate of compliance for their new home because the boathouse contained a dwelling unit, and the applicable zoning ordinance allowed two dwellings on a lot only when they were the same structure. The Dembiecs were ad- vised to either obtain a variance or remove all plumbing from the boathouse. The Dembiecs applied to the Town's zoning board of adjustment (the "ZBA") for an equitable waiver from the ordinance. After that was denied, the Dembiecs sought a variance, which was also denied. The Dembiecs then filed in court a petition for equitable relief. The Dembiecs asked the court to declare that because the Town issued a building permit, it was "estopped from enforcing the one dwelling per unit lot provision of the zoning ordinance as applied to the Property." In other words, the Dembiecs sought the equitable relief of municipal estoppel. They also requested an order requiring the Town to issue certificates of compliance and occupancy for the single family house. The Town asked the court to dismiss the petition. The Town argued that the court lacked jurisdiction because the Dembiecs had not appealed the decision of the compliance officer to the ZBA, and, therefore, had failed to exhaust their administrative remedies. The trial court agreed with the Town and dismissed the petition. The Dembiecs appealed. DECISION: Judgment of superior court reversed, and mat- ter remanded. The Supreme Court of New Hampshire held that because the ZBA lacked authority to grant the relief requested by the Dembiecs in their petition, the Dembiecs were not required to exhaust their administrative remedies before bringing their judicial petition. In its decision, the court acknowledged that, in the interest of "encouraging the exercise of administrative expertise; preserving agency autonomy and promoting judicial efficiency;" "[o]rdinarily, parties must exhaust their administrative remedies before appealing to the courts." However, the court also recognized that the exhaus- tion of administrative remedies is not required under certain circumstances. Such circumstances include, said the court: when it is "unnecessary to burden local legislative bodies and zoning boards with the responsibility for rulings on subjects that are beyond their ordinary competence," such as when "the action raises a question that is peculiarly suited to judicial rather than administrative treat- © 2015 Thomson Reuters 9