Dietz v. Town of TuftonboroAnnotate this Case
Plaintiffs David and Katherine Dietz appealed a superior court order that upheld a zoning board of adjustment (ZBA) decision for defendant Town of Tuftonboro, which granted intervenor Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town’s zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee. Sawyer Point’s house was located along the shore of Lake Winnipesaukee and within the Town’s Lakefront Residential Zoning District (District); the Dietzes owned the abutting property, also within the District. In 1999, Sawyer Point added a second floor addition over the eastern portion of the first floor of its house, aware that the existing structure was located within the setback, and that a second floor addition would also be within the setback. Prior to construction, Sawyer Point submitted a building permit application to the Town containing a rough sketch of the existing house, which also showed that the house was situated less than fifty feet from the lake. The Town’s building inspector granted the building permit, noting the addition would cause “no change in footprint.” In 2008-2009, Sawyer Point constructed a second addition to its house, again receiving permission from the Town to construct. In February 2014, Sawyer Point commissioned a survey which revealed, in regard to the 2008 Addition, more of the new structure was within the setback than had been represented to the ZBA. In December 2014, the Dietzes, after learning of this discrepancy, sought injunctive relief against Sawyer Point, claiming that Sawyer Point had built within the setback without obtaining the required approvals, and requesting that the court order the removal of the unlawful construction. The New Hampshire Supreme Court concluded the trial court did not err when it sustained the ZBA and declined to weigh the cumulative effect of building within the lakefront setback throughout the Town. Moreover, relying on the evidence before it, the trial court agreed with the ZBA that there was little or no public benefit to be gained by correcting the violations. Because the Dietzes have failed to show that this finding was unreasonable or unsupported by the evidence, the trial court's decision was upheld.