Agenda - Planning Commission - 07/06/2017

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June 10, 2017 I Volume 11 I Issue 11 Zoning Bulletin therefore "[t]he continued use of the property as a residence [was] . . . a violation of the zoning ordinance." The zoning administrator informed Alpha Delta that "[t]he continued occupancy of the property [by at least 18 individuals] must cease immediately." Alpha Delta appealed to the Town's Zoning Board of Adjustment ("ZBA"). The ZBA also concluded that, as a result of derecognition, Alpha Delta's Fraternity House was no longer "operated in conjunction with an- other institutional use" and its use of the property as a student residence violated the zoning ordinance. Alpha Delta again appealed. On appeal to the superior court, Alpha Delta argued that the Fraternity House use was a grandfathered use and therefore was not in violation of the Ordinance. More specifically, Alpha Delta argued that because its "use of its property as a fraternity pre-existed all zoning ordinances and [Alpha Delta] ha[d] never sought or obtained a Special Exception to operate as a Student Residence," it had proven that its use "legally existed prior to the adoption of a zoning provision prohibit- ing the use." Alpha Delta also argued that the "in conjunction with" requirement was met because the residents in the Fraternity House were all students of the College. The superior court rejected Alpha Delta's arguments and affirmed the ZBA's decision. Alpha Delta again appealed. DECISION: Judgment of Superior Court affirmed. The Supreme Court of New Hampshire held that, upon the College's derecognition of Alpha Delta as a student organization, Alpha Delta was not "operating in conjunction with" the College, and thus, its use of the Fraternity House as a student residence violated the Town's zoning Ordinance. In so holding, the court rejected Alpha Delta's argument that the use of its Fraternity House as a student residence was grandfathered as a legal nonconforming use. The court explained that "[a] nonconforming use is a lawful use existing since prior to the adoption of a zoning ordinance prohibiting such use, and that does not conform to the requirements of the ordinance." The court noted that nonconforming uses are protected by state statutory law, RSA 674:19, and by Part I, Articles 2 and 12 of the New Hampshire Constitution. Here, the court explained that, in order to prove that the Fraternity House was grandfathered from the Ordinance's requirement that student residences in the Institutional zoning district oper- ate in conjunction with another institutional use, "Alpha Delta . . . needed to show that it operated [the property] in a manner that was not 'in conjunc- tion with another institutional use' at the time the 'in conjunction with' requirement was adopted" (in 1976). The court found that when the zoning Ordinance was adopted in 1976, Alpha Delta's use of its property as a student residence was conforming with respect to the requirement that the residence be operated in conjunc- 4 © 2017 Thomson Reuters