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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 96-791
JOSEPH P. HURLEY
v.
TOWN OF HOLLIS
May 25, 1999
Prunier, Lloyd & Leonard, P.A., of Nashua (Gerald R. Prunier on the brief and orally), for the intervenor, John Siergiewicz.
McNeill & Taylor, P.A., of Dover (Lynne M. Dennis and Malcolm R. McNeill, Jr. on the brief, and Mr. McNeill orally), for the plaintiff.
Drescher & Dokmo, of Milford, for the defendant, joins in the intervenor's brief.
BRODERICK, J. The intervenor, John Siergiewicz, appeals an order of the Superior Court (Arnold, J.) reversing the Hollis Zoning Board's (board) grant of a special exception to "alter, expand or change" a nonconforming use pursuant to a Town of Hollis Zoning Ordinance. We affirm.
I
In 1953, Siergiewicz purchased property located on both sides of South Merrimack Road (road) in the town of Hollis (town). The property was conveyed by a single deed and described two forty-acre parcels, known as lots 43 and 44, which were separated by the road. Currently, lot 43 contains a large three-story barn and residence, and a smaller barn rests on lot 44.
In the 1950s, Siergiewicz established a machine tool business on his land, which was permitted in the property's then-existing industrial zone. In the 1960s, the town rezoned the district to its present residential/agricultural status, and Siergiewicz lawfully continued to operate his enterprise as a nonconforming use. See Arsenault v. Keene, 104 N.H. 356, 358-59, 187 A.2d 60, 62 (1962). Though the parties dispute whether, at the time the district was rezoned, Siergiewicz maintained his business on both lots, the record clearly shows that the large barn on lot 43 comprised the bulk of his operations. While the barn had a footprint of approximately 6,000 square feet, the three stories contained about 15,000 square feet which were used for business operations.
In 1992, Siergiewicz sought a variance from the board to relocate his business from lot 43 to a new facility to be constructed across the road on lot 44. The board denied his application because no hardship was demonstrated. Subsequently, the town amended its zoning ordinance "to allow a certain reasonable level of alteration, expansion or change to occur by special exception" to pre-existing nonconforming uses if certain factors were satisfied, despite lack of hardship (the amendment). Hollis Zoning Ordinance