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Bar News - September 14, 2012


Environmental & Natural Resources: When a Home Is Not a House: Avoid the Trap of Seasonal Homes

By:

Question: Why would a town not allow a couple who had purchased their lakeside retirement home to live in their own home?

Answer: Because it is a seasonal home that is a pre-existing, non-conforming use, which is not allowed to be expanded to year-round residency.


This situation is all too common here in New Hampshire. Our wonderful mountain and lake resources have drawn many to build seasonal homes. Seasonal dwellings that pre-date the adoption of zoning ordinances are typically vested against dimensional and use requirements under our constitution, state laws, and local zoning ordinances. But, if the home is on a non-conforming lot or is a non-conforming use and has been used only part of the year, it may be unlawful to live there year-round.

"Dimensional nonconformity" means either the lot is too small, the configuration too narrow, or some other physical aspect of the lot prevents it from satisfying minimums for lot size, frontage, setback, or many other dimension-based requirements. "Use nonconformity" means the use of the lot is not allowed in the particular district where the use exists.

Seasonal homes almost never conform to the dimensional requirements of zoning ordinances because they are small structures on small lots. Only sometimes are they an allowed use. The upshot is that many seasonal homes do not conform to zoning ordinances.

Municipalities increasingly regulate nonconforming seasonal homes strictly, usually by prohibiting any type of expansion of a seasonal home. Some even specify that changing the period of use of the home from seasonal to year-round is an expansion, called a temporal expansion. See e.g. Town of Epsom Zoning Ordinance, Article III, Section B(7)(a) ("permit the continued use of these non-conforming dwellings Ö; while limiting the pre-existing use to their continuous, uninterrupted and unenlarged seasonal nature. It shall be the explicit policy of these ordinances to regard temporal expansion of a seasonal use to a year-round use as a "substantial" change Ö").

Why are municipalities so strict when it comes to seasonal homes? The reasons are many. Seasonal homes typically have inadequate septic systems, which can create unseen threats to the environment and to human health. Seasonal homes are common in crowded waterfront or mountain valley locations, and municipalities want to prevent further crowding. Another issue is that seasonal homes might be located on roads, public or private, that are difficult to maintain well.

Following are key questions to help clients avoid the predicament of having sold their primary home to live in their retirement lake house, only to learn the town will not let them live there year-round.

Key Questions to Ask

1. Does the home conform to the zoning ordinance?

If seasonal homes are allowed and the dimensions satisfy the requirements, there should not be any issue with year-round occupation. If there is a use or dimensional non-conformity, more scrutiny is needed.

2. How does the municipality describe the home?

Get a copy of the tax card to determine this. Does it say something like "seasonal cabin" or more like "single-family residence"? If the tax card describes it in a way that corroborates conformity with the zoning ordinance or a year-round use, that is helpful. Either way, if there is even a hint of nonconformity or seasonality, more analysis is prudent.

3. Is the home occupied now, on what basis (seasonal or year-round), and for how long has that been the case?

If the home is occupied only seasonally, even if it had been occupied year-round in the past, the right to occupy it year-round in the future may have been forfeited inadvertently. See e.g. Town of Epsom Zoning Ordinance, Article III, Section B(3)(b)(1): "All such pre-existing non-conforming uses shall be permitted to be continued indefinitely and be exempt from the restrictions imposed by these ordinances subsequent to their commencement, unless the specific use has ceased for any one-year period."

If the home is not occupied at all, the right to occupy it, even on a seasonal basis, may have been forfeited inadvertently.

4. What is the "season" during which the home has been occupied?

Some ordinances prescribe what is deemed to be "summer" and minimum and maximum periods of time to constitute seasonal occupation.

5. What improvements will be needed to occupy the house year-round and will those be permitted?

Commonly, seasonal homes will need septic systems replacements, driveway improvements, insulation, and the like. If an improvement is required by law, but the dimensions or other physical features of the property prevent the improvement from happening, year-round use may not be possible.

6. If bringing the issue to the attention of the municipality is prudent, ask the zoning director, code enforcement officer, or the like, what the municipality believes is the lotís status.

The bottom line is simple; never assume that a residence may be used year-round, especially if it has any of the telltale signs of a seasonal home. And if you do find your clients already having purchased a home with seasonal restrictions, look hard at the possibility of obtaining a variance or other relief from the ordinance, determine the exact history and scope of use, and identify distinctions that separate your clientís lot from others.

Amy Manzelli is a part owner of BCM Environmental & Land Law, PLLC, online at www.nhlandlaw.com. Reach her directly at manzelli@nhlandlaw.com.



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