Reference Library

§ 23.05 Status of Special Exception
(from New Hampshire Practice, Vol. 15, Land Use Planning and Zoning, Third Edition, Atty. Peter J. Loughlin)

There is little difference between the legal status of a permit obtained directly from a municipal building official because a particular use is permitted as a matter of right, and a permit obtained from a municipal building official after the board of adjustment has found that the use complies with the conditions for a special exception. [31] In other words, a special exception provided for by ordinance is a permitted use when approved. [32]

A permit obtained as a result of a special exception is not personal to the applicant and it cannot be limited to the use only of the applicant. [33] A special exception runs with the land and not a particular owner, hence a condition restricting the use to the particular owner would be inappropriate. [34] This is not to say, however, that a provision cannot be included in the land use regulations indicating that a permit obtained as a result of a special exception must be acted upon within six months or a year, nor is a provision prohibited which expresses under certain circumstances that a use allowed by special exception might be lost by abandonment. [35]

31 Navin v. Exeter, 115 NH 248, 339 A.2d 12 (1975); Geiss v. Bourassa. 140 NH 629, 670 A.2d 1038 (1996) (in reviewing the status of a special exception the trial court erred when it applied the review standard which is appropriate to the scope of a variance or nonconforming use).

32 3 E. Ziegler, Rathkopf’s The Law of Zoning and Planning, § 41.14. Note, however, that the granting of a special exception for one particular use does not automatically permit the landowner to use the property for any other use permitted by special exception.

33 Vlahos Realty Co., Inc. v. Little Boar’s Head District, 101 NH 460, 146 A.2d 257 (1957).

34 3 E. Ziegler, Rathkopf’s The Law of Zoning and Planning, § 41.14.

35 Lawlor v. Salem, 116 NH 61, 352 A. 2d 721 (1976) (abandonment was found where intent to abandon existed and overt act on the part of landowner indicated intent to abandon).