Is the Merger of Substandard Lots into One Substandard Lot Permitted in New Hampshire?
RSA 674:39-a permits owners of two or more contiguous, preexisting approved or subdivided lots or parcels to merge the lots, subject to the requirements of the statute. One requirement prohibits a proposed merger if the new lot “would create a violation of then-current ordinances or regulations.”
New Hampshire is littered with tiny lots, remnants of a time when lot maximization was not hindered by the inconvenience of zoning ordinances. What happens when the owner of abutting lots lacking the square footage requirements of the current zoning ordinance would like to merge the lots into a single lot that still violates the square footage requirements of the ordinance? Wouldn’t RSA 674:39-a prohibit the merger because it creates a lot that violates the then-current ordinance? In Appeal of Town of East Kingston (May 22, 2024 order), the New Hampshire Supreme Court said “no.” (Although Appeal of Town of East Kingston is not a New Hampshire Supreme Court opinion and carries no precedential authority, it can provide guidance on how the Court might rule if presented with similar facts.)
The Properties
In Appeal of East Kingston, two parties owned abutting, nonconforming lots, respectively. They wanted to merge the lots into a single lot and then seek various variances necessary to construct a single-family home. (Click here for a separate blog discussing the variance requests.)
The ordinance required a minimum lot size of 87,120 square feet, while the proposed merged lot would total 21,580 square feet. The ordinance also required 200 feet of frontage, while the merged lot would have 152.13 feet.
Arguments and Rulings
The Town contended the proposed merger of the lots violated RSA 674:39-a, as the merged lot would not comply with the zoning ordinance and thus create a lot that violated the ordinance. The applicants argued the merger did not "create" any new violations of the zoning ordinance but rather reduced existing non-conformities. By merging the two smaller non-conforming lots, the proposal would not introduce additional non-conformities but would lessen the scope of the current violations.
Both the New Hampshire Housing Appeals Board (HAB) and Supreme Court agreed with the applicants.
The Court emphasized the plain meaning of the term "create," stating it implies bringing into existence something that did not previously exist. In this context, the violations at issue already existed in the two lots the respondents sought to merge; therefore, the merger did not "create" new violations but aimed to mitigate existing ones. The court also noted the merger would reduce the number of non-conforming lots and the proposal would not lead to any new non-conformities. The Court agreed with the HAB that RSA 674:39-a, III was not intended to prevent the merger in this case.
A companion piece to this post can be found here.
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