Reference Library

April 01, 2010

Yes.  Technically it is a required yard, an open space.  Building is not allowed in the required yard. 

Bill Klubben, Director
Community Development
Town of Bow

April 01, 2010

All,

Don’t you think it depends on the proposal? After all, each case lives or dies on it’s own merits, and is heavily informed by the physical layout of the subject property.

For example, a lot of older homes were erected very proximate to the roads (less plowing or whatever they did in the day). In many instances it has been only recently that setbacks have been ‘overlain’ (Plymouth enacted zoning in the 1960’s).

If a homeowner whose property is non-compliant with the front setback but meets/exceeds side setbacks wishes to add on laterally and conformally, wouldn’t the de facto setback for that property be the actual measured setback? Knowing that the 5 criteria for variance (which appear to be custom made for this incidence) would all be met, why would one make the applicant jump through the hoops (in time and money) to obtain what would be granted anyway? Should situations such as this be held to a lower standard (through amendment) via Special Exception?

Brian Murphy
Plymouth Code Enforcement Officer

April 1, 2010

Yes.  And no.  

Bernie Waugh’s materials on this are both illuminating and funny, and I encourage everyone particularly to read the section on expansion of non-conformities.  ["GRANDFATHERED – The Law of Nonconforming Uses and Vested Rights (2009 edition)" ]

It’s important to remember that these cases are interpretations of two things: (1) existing common law, which talks about allowing "natural" expansions of non-conformities, but also favors the amortization of non-conformities over time, and (2) the local zoning ordinance.  It’s the second point that often gets lost in these discussions.  Go to the zoning ordinance first, and read what it says about non-conformities and whether and how changes to them are allowed.  

When I was the planner in Hollis, I created a diagram that was adopted as part of a zoning amendment; it is still in the ordinance, now at page 64.  This was done in part to address confusion over how to interpret the zoning ordinance’s provision on expansion of non-conformities, which itself had been subject of a lawsuit.  That case was decided by the Supremes in 1999, Hurley v. Hollis.  

The case is informative in how it deals with the interplay between the common law and the local ordinance.  If a town wants to allow expansion of non-conformities by special exception, it can do that—but it needs to be addressed explicitly in the ordinance; without clear treatment there, you are left with filing for a variance, or the natural expansion option (which might only require a building permit).  The natural expansion option should be applied conservatively—consider the Court’s language in Grey Rocks quoted by Bernie: internal expansions only.  Even there, you could have a significant internal change that would go beyond what the Court might be comfortable to consider as a "natural" expansion; just don’t apply a stranglehold interpretation, as in the Ray’s Stateline Market case.  

As for that diagram, it should only be applied directly in the context of the Hollis ordinance.  But it also demonstrates one way of approaching the issue.  

Ben Frost
New Hampshire Housing Finance Authority

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