2004 Fall, 47. Lex Loci: A Survey of New Hampshire Supreme Court Decisions.

• Author: By Attorney Charles A. DeGrandpre

New Hampshire Bar Journal

2004.

2004 Fall, 47.

Lex Loci: A Survey of New Hampshire Supreme Court Decisions

New Hampshire Bar JournalFall 2004, Volume 45, Number 3Lex Loci: A Survey of New Hampshire Supreme Court DecisionsBy Attorney Charles A. DeGrandpreThe New Hampshire Supreme Court has again attempted to wrestle to the ground that many-headed hydra: the requirements for a zoning variance. These requirements have more "prongs" than Carter has liver pills (or, to contemporize the phrase, "than Intel has chips"). As Attorney Peter Loughlin, New Hampshire's leading scholar in the area of zoning, has accurately stated about the basic statutory framework for establishing the requirements for a zoning variance, "it is probably safe to say that no single statutory provision has been the source of more litigation - .or more misunderstanding."1 In Boccia v. Portsmouth, opinion issued May 25, 2004, our newest member of the Supreme Court, Justice Galway, described the law of variances in an understatement as this "often convoluted area of the law." But, being new to the Court and perhaps na

The key focus of Boccia was the statutory requirement that a literal enforcement of the zoning ordinance must result in an unnecessary hardship. The Court first distinguished between use variances and area [or nonuse] variances. In Boccia, a use variance (one in which the applicant seeks a use of the property which the zoning ordinance prohibits) was not before the Court, but the question involved "nonuse variances" which authorize deviations from area restrictions which relate primarily to property setbacks. The Court's breakthrough was that in meeting the unnecessary hardship test, if a use variance is sought, the three requirements set forth in the Simplex Case2 applied, but where an applicant was seeking an area or nonuse variance, a new two-part test was established to meet the unnecessary hardship rule. Now, an applicant seeking a nonuse variance must show: "(1) an area variance is needed to enable the applicant's proposed use of the property given the special conditions of the property; and (2) the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance."

The clear framework set forth by the Boccia Case, for a unanimous Supreme Court, will certainly make easier the tasks of municipal zoning boards when confronting these thorny issues, many of which involve hundreds of millions of dollars. However, knowing and appreciating the work that lawyers do for their clients, the author wouldn't bet "a plugged nickel"3 that this decision is the last word on this knotty issue.

Arcidi v. Town of Rye, opinion issued April 5, 2004, is a wonderful case for those who revel in the nuances of property law. Here the issue was the appropriate use of an "easement in gross" or an "easement appurtenant" which the Court described thusly: An appurtenant easement is a nonpossessory right to the use of another's land - .It creates two distinct estates - the dominant estate, which is the land that benefits by the use of the easement, and the servient estate, which is the land burdened by the easement - .An appurtenant easement is incapable of existence separate and apart from the dominant estate - .The benefit of an appurtenant easement 'can be used only in conjunction with ownership or occupancy of a particular parcel of land.'

Such ancient terms send a tingle down the spine of a true property law devotee. Here, the main issue was whether or not the Town of Rye, which held an easement over the land of the plaintiff, which was described as "an easement and right of way - .to pass and repass and for ingress and egress by motor vehicle, foot and otherwise" could construct a water utility line below the surface of the road, which it had in fact constructed over the easement area. The court ruled that such an easement was an appurtenant easement and not an easement in gross and the Town could not construct the underground pipeline because of the clear and ambiguous language of the deed. The Court also took note of the fact that the history of the granting of the easement showed that it was intended not for utility purposes, but for secondary access purposes to the dominant tenement. Since the Town did not have the right to do what it had already done, the Court upheld the trial court's finding that the Town's action was an inverse condemnation which "occurs when a governmental body takes a property in fact but does not formally exercise the power of eminent domain." The owner of the subservient tenement, the plaintiff, was therefore entitled to damages.

The Blackthorne...