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Setbacks not included in calculations of minimum building site area.

The Supreme Court of New Hampshire ruled that setback areas cannot be included when calculating lot area for building sites and that requiring a minimum of 30,000 contiguous square feet for building lots serves a valid land use purpose.

Suzanne and James Doyle own a parcel consisting of 62.5 acres in the town of Gilmanton. In 2005, the Doyles filed an application with the town planning board to subdivide their parcel into three building sites with the largest, Lot 3, consisting of 52 acres. The town subdivision regulations require that building sites have a minimum 30,000 contiguous square feet of suitable soil, defined as at least 3 feet of natural soil above bedrock. Because Lot 3 was covered extensively by wetlands and the board excluded setbacks from the area calculation, the board found that Lot 3 failed to satisfy the building site area requirements. The board ruled that Lot 3 could be used as a wood lot, but otherwise could not be separated from the original parcel. The trial court concluded that the board accurately applied the regulations, but that the requirement of 30,000 square feet for a single building when a typical house occupies 2000 square feet "is absurd and serves no legitimate land use purpose:' In addition, the court held that since setback areas can contain underground construction such as septic systems, setbacks could be included in calculations of building site area. The town appealed.

The state supreme court first noted that the regulations define a building site as the portion of a lot on which a single building is placed and a setback as an area which cannot contain any structures. The court held that because a setback cannot contain a building, it cannot be part of a building site, and setbacks must be excluded from calculations of building site area. Furthermore, because setbacks cannot contain any structures, septic systems and other underground objects could not be placed within setback areas, according to the court. The court also found that the regulations were aimed at various structures, not the typical house, and that the minimum area requirement served several legitimate land use purposes, like ensuring that lots conform to zoning regulations and have sufficient areas for drainage and sanitary facilities. The court thus concluded that the subdivision regulations were valid and excluded setbacks from calculations of minimum building site area. The trial court decision was reversed.

Doyle v. Town of Gilmanton

Supreme Court of New Hampshire

July 19, 2007

927 A.2d 1211 (N.H. 2007)

The author gratefully acknowledges the assistance of Lauren LeGrand, a second-year student at Saint Louis University School of Law, in the preparation of this column.

Alan M. Weinberger, JD, is the Associate Dean for Faculty at Saint Louis University School of Law where he has been a law professor since 1987. Previously he practiced for twelve years with law firms in Detroit and Washington, DC, specializing in real estate transfer, finance, and development. Weinberger graduated magna cure laude from the University of Michigan Law School. He has published articles and chapters in the fields of real estate finance, partnership, and property law. He is coauthor of Property Law Cases, Materials and Problems, 3rd ed., published by West Group. Contact:
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Title Annotation:Recent Court Decisions
Author:Weinberger, Alan M.
Publication:Appraisal Journal
Geographic Code:1USA
Date:Jan 1, 2008
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