(August 28, 2006. Manchester, NH.) - In a case with potentially far-reaching consequences for non-conforming users of land in New Hampshire, the Grafton County Superior Court held that, under the circumstances, the growth of a business did not constitute an unlawful expansion of a non-conforming use.
The case provides important protection to businesses established and operating before the enactment of a zoning ordinance. Sheehan Phinney's arguments and the court's decision make clear that non-conforming businesses must be permitted to grow and succeed, even in the face of opposition by later-coming neighbors, so long as the basic activities of the business remain the same.
The case, Whitman Real Estate LLC v. Town of Piermont, concerned the town's attempt to control the growth of Camp Walt Whitman, a summer camp for children ages 8 through 17. The camp, which enrolled some 200 campers at the time the local zoning ordinance was passed, had doubled its enrollment by 2001. The town informed the camp that such growth was a violation of the camp's rights as a non-conforming user. The town, joined by certain abutting landowners who had purchased their properties long after the camp had established itself, convinced the local zoning board of adjustment that the camp's increased enrollment was an unlawful expansion of the camp's non-conforming use rights.
Represented by Sheehan Phinney attorney Christopher Cole, the camp appealed to the NH Superior Court. Cole asserted that case presented the question of whether a non-conforming business would be allowed to succeed and grow, and argued that the increased enrollment could not constitute a change in the nature and purpose of the camp's business or impose a substantially different effect on the neighborhood. The court agreed and reversed the zoning board, holding that increased enrollment involved only "more of the same" matrix of activities, and not the substantial change in use asserted by the Town and zoning board.
Sheehan Phinney is a regional business law firm with offices in Manchester, Concord and Lebanon, NH, and in Boston, MA. The firm provides a broad range of sophisticated legal services to businesses and institutions in traditional and emerging areas of the law. Its diverse client base includes local and regional organizations, as well as national and international businesses with interests in the Northeast.
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