Lex Loci
| Citado como | Vol. 52 No. 4 Pg. 0048 |
| Páginas | 0048 |
| Año de Publicación | 2012 |
2012 Winter, Pg. 48. LEX LOCI
Volume 52, No. 4
Winter 2012
Brandt Development v. City of Somersworth, No. 2010-641, decided October 12, 2011, is a yet another zoning board case in the progeny of the watershed Simplex line of cases. Of all areas of law in New Hampshire, few have changed as significantly as land use zoning laws in the past 15 years, and that is was crux of this case. Brandt Development owned a house with attached barn in the residential multi-family district of Somersworth. In 1994, Brandt sought a zoning variance to convert the building from a duplex to a four-family unit. The variance was required because the size of the building and road frontage on the lot were insufficient. The Zoning Board of Adjustment denied the application and Brandt never appealed the denial.
In 2009, Brandt again applied for a variance to convert the building to a four-family dwelling. By this time the building had two apartments: one three-bedroom unit and one seven-bedroom unit (yes, that's right, a seven-bedroom apartment). However, it appears that that neither the size of the building nor the amount of road frontage had changed. Brandt argued that the Board should review its application because the change in case law interpreting zoning requirements between 1994 and 2009 constituted a "material change" and that duplicative applications for a variance - separated by 15 years - should be allowed under the Supreme Court's holding in Fisher v. City of Dover, 120 NH 187 (1980).
The Board dismissed his application without a hearing. It found that the changes in variance law heralded by Simplex Technologies v. Town of Newington, 145 NH 727 (2001), a case that completely redefined the "hardship" criterion for granting a variance, did not constitute a material change. The zoning board reasoned that the 1994 Board had denied the variance based on all five criteria for a variance, not just the "hardship" criterion redefined by I. In other words, even if the Simplex test had existed in 1994, the application would have still been denied. This argument was cogent enough to convince the superior court when Brandt appealed the denial of the variance. However, it was not cogent enough to convince the Supreme Court.
In reversing the ZBA (and the superior court) the Court essentially held that while the hardship criterion is only one of five criteria, the legal change in evaluating that criterion is a "material" change under Fisher. The Court noted that while the Simplex test amended only one of five criteria - the criterion that requires the ZBA to assess whether strict compliance with the zoning ordinance would impose an unnecessary hardship - the analysis of whether there is an unnecessary hardship is "central to the very concept of a variance.
CurtisAvery v. New Hampshire Department of Education, No. 2010-798, decided October 27, 2011, is a unique case involving the demolition and refurbishing of the Kimball School in Concord. To accommodate the proposed new building, the school board needed to petition the Department of Education for a waiver of certain dimensional and lot size requirements for the new structure. The Department granted the waiver and one of the abutters filed an action for declaratory judgment. The abutters, the Averys, owned rental property that abutted the Kimball School lot. Their action sought to invalidate the Department's grant of a waiver for the lot size limits. They argued that the application for the waiver was legally insufficient because it did not contain information about land values and the availability of land in contiguous lots as required by Department of Education administrative rules.
The issue in the case was one whether the abutters had standing to contest the waiver issued by the Department of Education. The Averys argued that they had standing to contest the waiver because as abutters they were the only ones who could contest the waiver process. In other words, if they did not have standing to file suit, then the waiver process would effectively be unreviewable by the Courts.
The Supreme Court held that the Averys did not have standing. In order to have standing to file a suit, the Court held that in order to bring a declaratory judgment action a petitioner must allege and prove that it has a present legal or equitable right created by the rule or statute that the petitioner seeks to enforce. In this case, the Court found that there was no right that was unique to the abutters that granted them any substantive rights in the Department of Education's waiver procedure. The Court went on to reaffirm their basic rule that the test for standing focuses on whether the aggrieved party suffered a legal injury against which the law was designed to protect. [ADD PARAGRAPH ABOUT PENDING BILL TO REVERSE THIS RULING]
State of New Hampshire v. Jesse Brooks, No. 2010-262, decided October 27, 2011, is a case closely related to one of two capital murder cases recently tried in New Hampshire. Mr. Brooks was charged and convicted of conspiracy to commit murder. Over the course of three years the defendant planned the murder of a "handyman" whom he suspected of stealing from him and his father. The evidence of the defendant's guilt was primarily established through his codefendants.
Of the several issues in the case that were raised and...
Para continuar leyendo
Solicita tu prueba