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Dietz v. Town of Tuftonboro

Supreme Court of New Hampshire, Carroll

January 8, 2019

DAVID F. DIETZ & a.
v.
TOWN OF TUFTONBORO

          Argued: May 9, 2018

          Wadleigh, Starr & Peters, PLLC, of Manchester (Michael J. Tierney on the brief and orally), for the plaintiffs.

          Sager & Smith, PLLC, of Ossipee, for the defendant, filed no brief.

          Hinckley, Allen & Snyder, LLP, of Manchester (John L. Arnold and Daniel M. Deschenes on the brief, and Mr. Arnold orally), for the intervenor.

          BASSETT, J.

         The plaintiffs, David F. and Katherine W. Dietz, appeal an order of the Superior Court (Fauver, J.) upholding a decision by the zoning board of adjustment (ZBA) for the defendant, the Town of Tuftonboro, to grant to the intervenor, Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town's zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee. We affirm.

         The trial court recited in its narrative order, or the record supports, the following relevant facts. Sawyer Point's house is located along the shore of Lake Winnipesaukee and within the Town's Lakefront Residential Zoning District (District). The Dietzes own the abutting property, which is also within the District. Section 4.2 of the Town's zoning ordinance requires a minimum fifty-foot setback from the lake for buildings located within the District.

         In 1999, Sawyer Point added a second floor addition over the eastern portion of the first floor of its house (1999 Addition). At the time of the 1999 Addition, Sawyer Point was aware that the existing structure was located within the setback, and that the second floor addition would, therefore, also be within the setback. Prior to construction, Sawyer Point's principal, Laurel Luby, provided Sawyer Point's builder, David Braun, with an interior floor plan of the house, which showed that the house was situated less than fifty feet from the lake. Braun then submitted a building permit application to the Town containing a rough sketch of the existing house, which also showed that the house was situated less than fifty feet from the lake. On February 8, 1999, the Town's building inspector granted the building permit, noting the addition would cause "no change in footprint." Sawyer Point then constructed the addition.

         In 2008-2009, Sawyer Point constructed a second addition to its house, adding a second floor over the existing enclosed porch as well as an addition off the side of the structure facing away from the lake (2008 Addition). Prior to obtaining a building permit for the 2008 Addition, Braun determined that portions of the addition would be within the setback, and, accordingly, submitted a variance application to the ZBA on behalf of Sawyer Point. After a hearing, the ZBA unanimously approved the variance and issued a building permit.

         In February 2014, Sawyer Point commissioned a survey of its property. The survey revealed that, in regard to the 2008 Addition, more of the new structure was within the setback than had been represented to the ZBA. In December 2014, the Dietzes, after learning of this discrepancy, sought injunctive relief against Sawyer Point, claiming that Sawyer Point had built within the setback without obtaining the required approvals, and requesting that the court order the removal of the unlawful construction. See RSA 676:15 (2016). Thereafter, Sawyer Point applied to the ZBA for equitable waivers pursuant to RSA 674:33-a (2016) for the portion of the 1999 Addition within the setback, and the approximately fifty square-foot portion of the 2008 Addition that is within the setback but is not within the scope of the 2008 variance. The ZBA granted the equitable waivers and subsequently denied the Dietzes' request for a rehearing. The Dietzes appealed to the superior court, which upheld the ZBA's decision. This appeal followed.

         Because resolution of this appeal requires us to interpret the equitable waiver statute, we set forth the pertinent provisions of RSA 674:33-a:

I. When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance enacted pursuant to RSA 674:16, the zoning board of adjustment shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the requirement, if and only if the board makes all of the following findings:
(a) That the violation was not noticed or discovered by any owner, former owner, owner's agent or representative, or municipal official, until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;
(b) That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner's agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owner's agent, or by an error in ordinance interpretation or applicability made by a ...

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