Keene v. Town of Meredith

GRIMES, J.

The issue in this case is whether the Meredith Planning Board has jurisdiction to prevent the sale of one of two lots owned by the plaintiffs. We hold that it does not.

Plaintiffs are owners of two lots of land that they purchased in 1969. One, the “back lot,” is located on one side of a roadway that is maintained by the town and used by the public; the other, known as the “shore lot,” is located on the opposite side of the road and on the shore of Lake Winnipesaukee. When purchased, the back lot had on it a house which the plaintiffs occupied as a dwelling from 1969 until 1972. The shore lot, however, had no buildings upon it at the time of purchase.

In 1972, the plaintiffs applied for and received a building permit and constructed a home on the shore lot after having complied with both State and local requirements. The back lot and dwelling has since then been used for guests and paying tenants, and neither house is accessory to the other. The plaintiffs, desiring to sell the back lot with building, sought a waiver of jurisdiction from the planning board, but their request was refused. Thereafter, in January 1976, they applied for subdivision. This too was denied.

Plaintiffs petitioned the superior court for review under RSA 36:34 (Supp. 1977), which authorizes the court to “reverse or affirm, wholly or partly, or [to] modify the decision brought up for review.” After a *380hearing, a Master (Walter L. Murphy, Esq.) found that the shore and back lots were two separate lots, and that it was not within the jurisdiction of the planning board to prohibit the sale of one of them because such a sale was not a subdivision. A decree was entered in accordance with the master’s recommendation by Keller, C.J., and the town’s exceptions were transferred by Batchelder, J.

The lots in question are described separately as lots in the deed to the plaintiffs. As described, the lots are bounded by land which was reserved for the road and not conveyed to the plaintiffs. They are taxed as separate lots and they are identified and shown on the town tax map as separate lots with separate lot identification numbers. Although each lot contains less than the required square footage specified in the zoning regulations, this has no bearing on the question whether they are separate lots. The town argues that the term “lot” in the zoning ordinance should be construed as a parcel of land meeting the zoning requirements, and that because each of plaintiffs’ parcels is substandard in size, they must be considered together as one lot.

The town’s argument might carry weight in dealing with parcels of land under the zoning ordinance, but it has no relevance in determining whether the sale of one of these lots, substandard or not, constitutes a subdivision. The plain fact of the matter is that these are indeed individual parcels of land separated by a road and treated by the town as separate lots. There is therefore no division of a lot, but rather the sale of one of two separate lots. The fact that each lot has a building on it and is substandard in size in no way makes them one lot.

In applying for a permit to build on the shore lot, plaintiffs indicated that there were two lots and that the rear lot already had a building on it. On the plan submitted as part of the application the plaintiffs shaded in the front lot to show on which lot the house was to be built. This case is unlike Isabelle v. Town of Newbury, 114 N.H. 399, 321 A.2d 570 (1974), where more than one structure existed on a single lot, thus requiring subdivision to permit the sale of one of the buildings with land around it. In that case there was but one parcel of land with several buildings on it. Here there are two individual parcels of land separated by a road.

There is no question in this case relating to control of density. Buildings already exist on each of the lots and no increased density will result by the change in ownership.

In sum, we hold that the trial court was correct in ruling that the planning board has no jurisdiction over the sale of the back lot, because no subdivision is involved.

Exceptions overruled.

*381LAMPRON, C.J., dissented: the others concurred.