Dembiec v. Town of Holderness
Annotate this CasePetitioners Daryl and Marcy Dembiec appealed a superior court order dismissing their petition for equitable relief. In October 2011, petitioners obtained a permit from the respondent, the Town of Holderness to construct a single family home. Before the permit was issued, the only structure on the property was a two-story boathouse with living quarters on the second floor. In April 2012, when construction of the home was substantially completed, the Town's compliance officer advised the petitioners that he would not issue a certificate of compliance for their new home because the existing boathouse contained a dwelling unit, and the applicable zoning ordinance allowed two dwellings on a lot only when they are in the same structure, such as in a duplex. The compliance officer informed petitioners that, before he could issue a certificate of compliance, they would need either to obtain a variance or remove "all plumbing" from the boathouse. Petitioners then applied to the zoning board of adjustment for an equitable waiver from the ordinance. Two intervenors objected to the petitioners' request. The board originally granted the waiver, but on rehearing, denied it. Petitioners later sought a variance. The board denied their application. The superior court ruled that it lacked jurisdiction to hear the petitioners' municipal estoppel claim because they had failed to exhaust their administrative remedies. Petitioners argued that the trial court had jurisdiction over their claim because they were not required to first raise it before the zoning board of adjustment. The Supreme Court was persuaded that appealing the compliance officer's decision to the zoning board would have been useless because the zoning board lacked the authority to grant the requested relief. Thus, exhaustion is not required. "The plain language of the pertinent statutes does not confer general equitable jurisdiction upon a zoning board. Nor could the zoning board have granted any relief to the petitioners under the applicable statutes or the Town's ordinance because their new home violated the ordinance, and they failed to meet the requirements for either a variance or an equitable waiver from dimensional requirements. Under those circumstances, we conclude that further pursuit of administrative remedies would have been futile, and, therefore, exhaustion of remedies is not required." Accordingly, petitioners' assertion of a municipal estoppel claim for the first time in the trial court was not barred by the exhaustion of administrative remedies doctrine. The superior court's decision was reversed and the matter remanded for further proceedings.
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