NH Supreme Court Rules Against Car Dealership In a Real Estate Development Setback Case
In a recent order concerning a car dealership site plan, the New Hampshire Supreme Court upheld ZBA and superior court rulings denying the dealership’s ability to park vehicles within a 200-foot buffer area. (Boyle, Trustee of the 150 Greenleaf Avenue Realty Trust v. City of Portsmouth, Case No. 2022-0042, N.H. Supreme Court (Dec. 14, 2023).)
At the heart of the case lies a 14-acre parcel of land owned by James Boyle, trustee of the 150 Greenleaf Avenue Realty Trust (the “Trust”). In 2009, the Trust submitted an original site plan application to the City for approval. In 2020, the Trust revived the original application, seeking to add a second dealership to the subject property.
However, the City’s 2006 ordinance mandated a 200-foot buffer zone between “areas for parking, display, and/or storage of vehicles, equipment, goods or materials . . .” and any residential or mixed residential district. The Trust, deciding to challenge the City’s ordinance, argued the 2006 ordinance should not apply to its pre-existing auto-related activities, as they constituted a "grandfathered" nonconforming use. The Trust further alleged the City's application of the 2006 ordinance was driven by bad faith and retaliation for past legal battles. Finally, the Trust argued that a 2007 superior court order established that the proposed project was not required to obtain a variance from the 200-foot buffer zone.
Below is a brief summary of the New Hampshire Supreme Court’s analysis with respect to each issue:
1. Applicability of 2006 Ordinance: The Court affirmed the applicability of the 2006 ordinance to the Trust's site plan. It interpreted the 2007 order as addressing only the 2004 ordinance and not establishing a blanket exemption from buffer requirements for the entire property. Additionally, the Court found no evidence in the record before it to support a different reading of the 2007 order. The 2007 court order, while relevant to a specific past project, did not address the 2006 ordinance or the specific use proposed in the Trust’s 2009 application. Therefore, it could not be used to override the current regulations applicable to the Trust’s new plan.
2. Preexisting Nonconforming Use: The Trust argued that its use was already well established and predated the 2006 ordinance, which made it a "preexisting nonconforming use" exempt from the City’s buffer zone requirement. While the Trust claimed a pre-existing auto-related use against “all of the property, [including] paved and unpaved portions” before 2006, the specific areas designated for parking in the 2009 site plan lacked concrete proof of such prior use. The Court highlighted the discrepancies between the Trust’s statements and the property’s existing condition reflected in the plans, which revealed ditches and a swale in these areas. This conflicting evidence raised doubts about the Trust’s pre-existing parking activity, leading the Court to conclude that the Trust’s proposed use was not a preexisting nonconforming use.
3. Bad Faith or Discrimination: The Court upheld the Zoning Board of Adjustment’s finding that neither bad faith nor a discriminatory motive was a driving force behind the City's application of the 2006 ordinance. The City presented a well-reasoned rationale for its amendment of the ordinance: a City attorney confirmed that the amendment was necessary to clarify the scope of the ordinance. And the Trust, for its part, could not point to any specific evidence of retaliation or bad faith to support this particular line of argument.
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