Daryl Dembiec & a.
Town of Holderness
Argued May 15, 2014.
Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.
[167 N.H. 132] Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester ( Roy W. Tilsley and Christopher G. Aslin on the brief, and Mr. Tilsley orally), for the petitioners.
Mitchell Municipal Group, P.A., of Laconia ( Walter L. Mitchell and Steven M. Whitley on the brief, and Mr. Mitchell orally), for the respondent.
BASSETT, J. DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.
The petitioners, Daryl and Marcy Dembiec, appeal an order of the Superior Court ( Vaughan, J.) dismissing their petition for equitable relief. The trial court ruled that it lacked jurisdiction to hear the petitioners' municipal estoppel claim because they had failed to exhaust their administrative remedies. The petitioners argue that the trial court had jurisdiction over their claim because they were not required to first raise it before the zoning board of adjustment. We reverse and remand.
In October 2011, the petitioners obtained a permit from the respondent, the Town of Holderness (Town), to construct a single family home. Before the permit was issued, the only structure on the property was a two-story boathouse with living quarters on the second floor. After obtaining the permit, the petitioners began construction of a single family home.
In April 2012, when construction of the home was substantially completed, the Town's compliance officer advised the petitioners that he would not issue a certificate of compliance for their new home because the existing boathouse contained a dwelling unit, and the applicable zoning ordinance allowed two dwellings on a lot only when they are in the same structure, such as in a duplex. The compliance officer informed the petitioners that, before he could issue a certificate of compliance, they would need either to obtain a variance or to remove " all plumbing" from the boathouse.
The petitioners then applied to the zoning board of adjustment for an equitable waiver from the ordinance. See RSA 674:33-a (2008). Two intervenors objected to the petitioners' request. The board originally granted the waiver, but on rehearing, denied it. The petitioners later sought a variance. The board denied their application. See RSA 674:33 (Supp. 2012) (amended 2013). The petitioners aver, and the Town does not dispute, that they filed the instant petition with the court at the same time that they applied to the zoning board for a variance.
In their petition, the petitioners seek a declaration that, because the Town issued a building permit, it is " estopped from enforcing the one dwelling per unit lot provision of the zoning ordinance as ...