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Greenland Loses Zoning Battle
by Ron Davis

It seems more and more likely that efforts of a citizens’ group to thwart construction of a new shopping center in Greenland, NH, have failed. That’s because of a recent ruling by the New Hampshire Supreme Court that greatly favors the chances of developers to build the shopping center just as they planned.

The citizens’ group, formed mostly of residents living near the proposed shopping center, had pinned their hopes of defeating the project on its planned location. That location is in an area of Greenland now zoned industrial.

That fact has not deterred the developers, however. Local planning regulations allow special exceptions in Greenland’s industrial zones. And the local zoning board has already approved the shopping center as just such an exception. In so approving, board members pointed out that zoning regulations allow “retail sales/service” businesses in areas zoned industrial.

The citizens’ group responded that the zoning regulations permit retail sales/service in industrial zones only when a business is an “accessory” use, not a primary use. In other words, group members explained, the only types of businesses allowed would be employee dining facilities, retail facilities for the use of employees only, or business services directly related to the primary use.

The citizens’ group also objected to the size of the proposed shopping center, which, group members contend, “greatly exceeds the size of existing commercial properties in Greenland and thus could not have been intended by the framers of the zoning regulations.”

The New Hampshire Supreme Court, in agreeing with a lower-court ruling, concluded, “The citizens’ group misapplies the doctrine of accessory uses and miscasts the zoning regulation. An accessory use is not the principal use of the property, but rather a use occasioned by the principal use and subordinate to it. The zoning regulations permit retail sales/service in an industrial district as either a principal use (by special exception) or as an accessory use (under certain circumstances). Thus, the zoning board acted reasonably in concluding that a retail sales/service use is permissible as a principal use in an industrial district by special exception.”

As for the argument about the size of the project, the justices added, “The zoning regulations simply do not distinguish between retail sales/service facilities based on size.”

The court did, however, refer the case back to the lower court for a finding as to whether the zoning board failed to review reports of certain experts. (Fox v. Town of Greenland, 864 A.2d 351 [N.H. 2004])

Decision: December 2004
Published: February 2004



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