Opinion
No. 81-139
Decided February 19, 1982
1. Zoning — Appeals From Board of Adjustment — Unjust or Unreasonable Order Where property owners, who had not obtained a variance, were enjoined from continuing construction of front steps and a sun deck which allegedly violated the set-back requirements of the town's zoning ordinance, and were also ordered to remove the portion of the deck and steps that were already constructed, without which their only access to the house would be over boulders and through a side door, the addition of front steps to their house was a permissible alteration, and denial of permission to build an unobtrusive set of steps so that they could use the front entrance would be arbitrary and unreasonable; therefore, the relief granted by the trial court, prohibiting front steps in any form, was too broad.
2. Zoning — Appeals From Board of Adjustment — Particular Requests Where property owners, who had not obtained a variance, were enjoined from continuing construction and were ordered to remove a deck and front steps which allegedly violated the set-back requirements of a zoning ordinance, the addition of the front steps, without which their only access to the house would be over boulders and through a side door, was a permissible alteration, but an elaborate entrance and sun deck which property owners had begun to construct was a substantially different use, and the owners were required either to remove that part of the structure or obtain a variance.
Andernacht Hurd, of Plaistow (Peter G. Hurd on the brief), by brief for the plaintiff.
Casassa, Mulherrin Ryan, of Hampton (Peter J. Saari on the brief), by brief for the defendant.
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).
[1, 2] 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.