Agenda - Planning Commission - 10/05/2006

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,""!'" {. ,\O::"!': . f \" .' t Z.B. September 10, 2006 - Page 5 Rogers con.tended that Kirby's failure to keep horses on the premises for more than one year was an abandonment of the nonconforming use and that Kirby's intention to resume keeping livestock on the property was irrelevant. Kirby maintained that the failure to keep livestock on the property for a period of more than a year created only a presumption of abandonment. The court examined the language of the statute, which stated that "[i]f the nonconforming use [was] discontinued for a continuous period of more than one year, it shall constitute an abandonment." The use of the word "shall" in the statute denoted a mandatory provision. As such, the board was precluded from considering Kirby'sintent. Because the court had relied on evidence that was not relevant, the case was returned to the lower court to be decided on its appropriate merits. see also: Pugh v. Draper City, 114 P.3d 546 (2005). Appeal - Gas station developer appeals verdict in favor of existing station owner Seeks variance to ordinance passed while separate lawsuiUs pending Citation: Thomas v. Town of Hooksett, Supreme Court of New Hampshire, No. 2005-312 (2006) NEW HAMPSHIRE (07120/06) - Boisvert owned property in Hooksett. In late _ 2000, Boisvert filed an application with the planning board to develop the property as a gas station and convenience store. A conservation commission filed a lawsuitto block the development plans. The case went to trial, but on Jan. 23, 2003, the state supreme court ruled that the commission lacked standing to. contest the plan. While the case was in litigation, the town amended its zoning ordinance to create a gr.~:)Undwater conservation district. The amendment restricted development of new gas stations by prohibiting their construction within the limits of the conservation district or within 1,000 feet of an existing gas station. Boisvert's property was located both within the newly created conservation district and within 1,000 feet of a gas station owned by Thomas. Two town officials told Boisvert that he could proceed with his plans if he obtained a building permit within one year of the date of the court decision and started construction within SL\. months of receipt of the building permit. Boisvert applied for and received a building permit on Jan. 5, 2004, and began construc- . tion on June 30. . However, on May 27, the code enforcement officer revoked the building permit, citing a statute that required "active and substantial development" to have commenced within one year ofthe zoning change for the development to be exempt. Since construction had not begun within that time, Boisvert's prop,. @ 2006 Quinlan Publishing Group. Any reproduction is prohibited. For more intormation please call (617) 542-0048. 81