Town of Hampstead v. Capano

441 A.2d 1180, 122 N.H. 144, 1982 N.H. LEXIS 303

Opinion

Memorandum Opinion

The defendants appeal from a report and recommended decree submitted by Master Mayland H. Morse, Jr., Esq., and approved by Mullavey, J., granting the Town of Hampstead injunctive relief against the defendants. The order enjoins them from continuing construction of front steps and a sun deck which the zoning board of adjustment found to violate a Hampstead set-back requirement. The order also requires the defendants to remove the concrete deck and steps that have already been constructed.

The defendants assert that, although their construction violates zoning set-back provisions and they have not obtained a variance, they are not so altering the use of their structure as to place it outside the protection of RSA 31:62, which permits alterations to a structure as long as it is not used “for a purpose or in a manner substantially different from the use to which it was put before alteration.” See New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856, 860 (1970).

We agree with the Capanos that the addition of front steps to their house is a permissible alteration. Without these steps, their only access to the house is over boulders and through a side door. Denial of permission to build an unobtrusive set of steps so that they can use the front entrance, would be arbitrary and unreasonable. See Metzger v. Town of Brentwood, 117 N.H. 497, 503, 374 A.2d 954, 958 (1977). Therefore, the relief granted by the trial court, prohibiting front steps in any form, sweeps too broadly. However, the elaborate entrance and sun deck erected by the Capanos is a substantially different use, and the Capanos must either remove this part of the structure or obtain a variance.

Affirmed in part; reversed in part; remanded for modification of decree.