Agenda - Planning Commission - 04/04/2019

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Zoning Bulletin. February 25, 2019 I Volume 13 I Issue 4 the Church of a conditional use permit did not moot the Church's claim that it did not need one and was instead entitled to be treated as a permitted use as of right. The Seventh Circuit emphasized the importance of the fact that the Church's equal teinis and unreasonable limita- tions RLUIPA claims hinged on the City's interpretation of the zoning code rendering churches a conditional use in the R-3 districts, rather than a permitted use as of right. On the other hand, noted the court, if the Church's interpretation that churches are a permitted use in the R-3 district is cor- rect, then the Church's equal terms and unreasonable limi- tations claims "fall away, leaving only its substantial burden claims," said the court. Thus, said the court, the "key question" in the case was whether operating a church on the Property was a permitted or conditional use. Since the district court did not answer that question, the Seventh Circuit remanded the matter for the district court to address. Proceedings/Equitable Waiver —Zoning board grants equitable waivers to applicant Abutting property owners argue statutory equitable waiver requirements were not met Citation: Dietz v. Town of Tuftonboro, 2019 WL 275312 (N.H. 2019) NEW HAMPSHIRE (01/08/19)—This case addressed the issue of whether statutory equitable waiver require- ments were not met such that a zoning board of adjust- ment's grant of equitable waivers to a property owner that had constructed portions of a structure within a setback was in error. The Background/Facts: Sawyer Point Realty, LLC ("Sawyer Point") owned a house (the "Property") along the shores of Lake Winnipesaukee in the Town of Tufton- boro (the "Town"). The Property was located within the Town's Lakefront Residential Zoning District (the "District"). The Town's zoning ordinance required build- ings within the District to be located at a minimum 50-foot setback from the lake. In 1999, Sawyer Point added a second floor addition (the "1999 Addition") to its house. The existing structure was located within the setback, but the Town granted a building permit for the 1999 Addition, noting it would cause "no change in the footprint." In 2008-2009, Sawyer Point constructed a second addition to its house, adding a portion to the second floor and an addition of the side of the house facing away from the lake (the "2008 Addition"). Portions of the 2008 Addition were within the 50-foot setback. Sawyer Point applied for and obtained from the Town's Zoning Board of Adjustment ("ZBA") a variance and a building permit for the 2008 Addition. A 2014 survey of the Property revealed that, in regard to the 2008 Addition, more of the new structure was within the setback than had previously been represented to the Town's ZBA. After learning of that discrepancy, owners of abutting property, David F. and Katherine W. Dietz (the "Dietzes") sought injunctive relief against Sawyer Point. The Dietzes argued that Sawyer Point had built within the setback without obtaining the required approvals, and asked that the court order the removal of the unlawful construction. Sawyer Point then applied to the ZBA for equitable waivers under New Hampshire's equitable waivers statute, RSA 674:33-a, for the portion of the 1999 Addition within the setback and for the portion of the 2008 Addition that was within the setback but not within the scope of the 2008 variance. The equitable waivers statute, RSA 674:33-a, provides that "[w]hen a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance," the zoning board of adjustment can grant an equitable waiver from the requirement, "if and only if' the ZBA makes certain specified findings, including that: the violation was not noticed or discovered until after substan- tially completed; the violation was "not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith . . . but was instead caused by either a good faith error in measurement or calculation . . . or by an error in ordinance interpreta- tion or applicability made by a municipal official . . . "; the violation does "not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property"; and the "cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected." The ZBA granted the equitable waivers. The Dietzes then appealed the grant of those equitable waivers to the trial court. The trial court upheld the ZBA's grant of the equitable waivers to Sawyer Point. The Dietzes appealed. Among other things, the Dietzes argued that: (1) the trial court erred because RSA 674:33-a requires the ZBA make written factual findings as to each element of the statute, and the ZBA failed to do so here; (2) the trial court erred because RSA 674:33-a, I(d) allows for an equitable waiver only if past construction was made in ignorance of the facts constituting violation, and Sawyer Point was not ignorant of the facts, but was aware that the additions were within the setback; and (3) the trial court erred in its application of the balancing test set forth in RSA 674:33-a, I(d) because Sawyer Point failed to present evidence to show the cost of correcting the zoning viola- tion, and the ZBA failed to consider the "cumulative effect of the failure to enforce lakefront setback throughout the Town." • DECISION: Judgment of trial court affirmed. The Supreme Court of New Hampshire rejected all of © 2019 Thomson Reuters 7