A property owner was granted a special exception and a variance to use some of his existing building as office space and the remaining part of the building as storage space. Nearly 10 years later, he sought site plan approval to utilize the entire building for office space. The planning board determined that the property owner would need ZBA approval to increase the space used for offices. The property owner appealed the planning board decision to the ZBA, claiming that the use of the building entirely as office space was within the original ZBA approvals or, if not, it was a permissible expansion of a nonconforming use.
The ZBA determined that its previous decision was specific concerning the use of part of the building as storage space, and any change from that would require additional approvals from the ZBA after notice and public hearing.
The Court upheld the ZBA's determination, pointing out that although the original ZBA approval did not contain an express limitation on the square footage to be used for office space, representations made at the public hearing, and recorded in the meeting minutes, show that the applicant intended to use only a certain area of the building for office space.
It is important to point out that the decisions by the ZBA and planning board were made prior to the amendment of RSA 676:3, II, which now requires that all conditions of approval be included in the written decision. Where an application does not specify the scope of a proposed project, it is risky for a land use board to rely on statements at the public hearing. Limitations should be made clear in the written decision.
Next, the Court examined the applicant's contention that the ZBA should apply the doctrine of expansion of nonconforming uses to its plan to expand the use of office space within the building, which was originally permitted by special exception. Valid nonconforming uses are permitted to expand to some extent. The Court pointed out that it has distinguished between nonconforming uses and special exceptions, noting that "the review standard appropriate to the scope of variances or nonconforming uses" does not apply to special exceptions. The Court rejected the applicant's claim, ruling that the doctrine of expansion of nonconforming uses does not apply to uses by special exception.