Zoning Law

An associate with Ford & McPartlin in Portsmouth, NH

No. 2017-0536
January 8, 2019

  • Whether the trial court erred in upholding the Zoning Board’s grant of equitable waivers for construction on a lakefront property.


Sawyer Point Realty, LLC owned property on the shoreline of Lake Winnipesaukee. The Dietzes owned the abutting property. Both properties were within the Town’s Lakefront Residential Zoning District and were subject to the district’s zoning ordinance requiring a minimum 50-foot setback from the lake for building. In 1999, Sawyer Point submitted a proposal to the town to build a second-floor addition. The proposal included a rough sketch and floorplan which showed that the house was within the setback. The building inspector issued the building permit because it did not change the footprint of the house. Sawyer Point constructed the addition.

In 2008, Sawyer Point submitted another proposal to build a second floor over an existing enclosed porch and an addition to the side of the structure opposite the lake. Aware that a portion would be within the setback, Sawyer Point submitted a variance application to the Zoning Board. The Zoning Board unanimously approved the variance and issued the building permit.

In February 2014, Sawyer Point surveyed the property and discovered that more of the 2008 addition was within the setback than had been reported to the Zoning Board. After learning of the discrepancy, the Dietzes sought injunctive relief against Sawyer Point and requested that the encroaching structures be removed.

Sawyer Point then applied to the Zoning Board for equitable waivers for the portion of the 1999 addition within the setback and the approximately 50 square foot portion of the 2008 addition within the setback but not within the variance. The Zoning Board granted the equitable waivers and denied the Dietzes request for rehearing. The Dietzes appealed to the superior court, which affirmed the Zoning Board. This appeal followed.

On appeal, the Dietzes argued the trial court erred in accepting the Zoning Board’s findings when it had not made written factual findings as to each element of the statute. They argued that an equitable waiver should only issue if the Board made the satisfactory findings and submitted them in writing. The statute states equitable waivers are to be issued “if and only if the board makes the following findings.” The court found this to mean that the Zoning Board was required to make certain findings, but not necessarily put forth those findings in writing, as it is assumed that a conclusion is supported by the necessary factual findings.

The Dietzes also argued that the trial court erred in interpreting RSA 647:33-a, and ignored the language requiring the “past construction or investment [was] made in ignorance of the facts constituting the violation.” They argued that Sawyer Point was not ignorant of the facts because it had previously admitted that the construction was within the setback. The court found that this statute, interpreted properly and in context, was intended to provide a waiver to someone who shows good faith error in measurement or calculation, or error made by municipal employee, which conditions were met.

The Dietzes also argued that the trial court erred when it shifted the burden of proof onto them in evaluating whether Sawyer Point was aware of the location of the setback line. They argued that this burden should be on the property owner. The court found that the burden initially rests on the property owner to show that the statutory requirements for equitable waiver were met, but when the Dietzes appealed, the burden shifted to them to show legal error or an unreasonable decision by the Zoning Board.

The Dietzes argued that the trial court erred in applying the balancing test in RSA 674:33-a, I(d). They claimed the equitable waivers should not have been issued as Sawyer Point presented no evidence to show the cost of correction, which was necessary to prove the waiver outweighed any public gain if corrected. The court disagreed, finding that the Zoning Board, using their own knowledge and observations, could assume the cost of correcting the zoning violation would be substantial and outweigh public benefit.

The Dietzes argued that the trial court failed to consider the cumulative effect of the failure to enforce the lakefront setback, which was the “public benefits to be gained.” Rather than looking at the specific zoning violation at issue, they pointed to the larger picture of the effect on the town. The court disagreed with this argument and found that the balancing test was only to be applied to the violation at issue.

Lastly, the Dietzes argued that the improvements to the Sawyer Point property exceeded the maximum lot coverage standards in the zoning district, and thus the Zoning Board erred when it granted equitable waivers. The court found that lot coverage violations were not germane to applications for equitable waivers and the allegation was not properly before the court. The court affirmed that there was no legal error in granting the equitable waivers.


Michael J. Tierney, Wadleigh, Starr & Peters, Manchester, for the plaintiffs. John L. Arnold and Daniel M. Deschenes, Hinckley, Allen & Snyder, Manchester, for the intervenor.