Agenda - Planning Commission - 11/07/2013

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Zoning Bulletin September 25, 2013 I Volume 7 I Issue 18 tion to operate his banquet facility use in the Agricultural Zone without regard to whether he intended to conduct it as a business and charge a fee for the use. See also: Ludwig v. Zoning Hearing Bd. of Earl Tp., 658 A.2d 836 (Pa. Commw. Ct. 1995). See also: Rapaport v. Zoning Hearing Bd. of City of Allentown, 687 A.2d 29 (Pa. Commw. Ct. 1996). Scope of Review —Landowner applies to town seeking to "unmerge" lots per state statute Landowner contends statute's placement of burden of proof on municipality altered the typical judicial differential standard of review in zoning cases Citation: Roberts v. Town of Windham, 2013 WL 3724899 (N.H. 2013) NEW HAMPSHIRE (07/16/13)—This case addressed the issue of whether the enactment of New Hampshire's RSA 674:39-aa, which restores involun- f tarily merged lots to their premerger status and puts a burden of proof on municipalities to prove voluntary merger, altered the typical judicial deferen- tial standard of review in zoning cases with respect to the issue of proving vol- untary merger of lots. The Background/Facts: Charles A. Roberts ("Roberts") owned an ap- proximately one -acre parcel of land in Windham, New Hampshire (the "Town") (the "Property"). The Property has been identified as a single lot on the Town's tax map since the 1960s. However, the Property originated from seven separate lots —lots 8 through 14—as recorded with the County Registry of Deeds in 1913. As of 1962, the Property was owned as it exists today, consisting of lots 8 through 14. The Property was conveyed to Roberts in 1995. Apparently, in the 1960s, the Town administratively merged the seven lots into a single lot. The seven lots were designated as a single lot for tax purposes and given a single street address. Neither Roberts nor any previous owner in the chain of title applied to the Town to merge the lots. In 2011, the New Hampshire legislature enacted RSA 674:39-aa. That stat- ute provides that lots that were "involuntarily merged prior to September 18, 2010" shall be "restored to their pre -merger status" upon request of the owner, subject to certain conditions. Under the statute, " `[i]nvoluntary merger' .. . mean[s] lots merged by municipal action for zoning, assessing, or taxation purposes without the consent of the owner." Under the statute, an owner is not entitled to such restoration if "any owner in the chain of title voluntarily emerged his or her lots." "Voluntary merger" means a merger expressly \,, Jequested under RSA 674:39-a, or "any overt action or conduct that indicates ©2013 Thomson Reuters 5