Manuel Barba v. Town of Rye

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0437, Manuel Barba v. Town of Rye, the
court on June 24, 2019, issued the following order:

Having considered the opening and reply briefs filed by the plaintiff,
Manual Barba, the brief filed by the defendant, the Town of Rye (Town), and
the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). The plaintiff appeals an order
of the Superior Court (Schulman, J.) ruling in favor of the defendant on the
plaintiff’s request for a declaratory judgment on his municipal estoppel claim.
We affirm.

The trial court found, or the record reflects, the following facts. The
plaintiff owns a 4.2-acre parcel in Rye. In the early 1990s, the parcel was part
of a larger parcel owned by the Green family. The Green homestead is still
standing, and the plaintiff resides there. When the Greens still owned the
property, one of the Green brothers built a tool shed in the rear of what is now
the plaintiff’s parcel. The tool shed was originally a small, one-story structure
with no chimney or heating unit. In the mid-1960s, it was improved by the
addition of a tiny kitchen, bathroom, dormered second half-story, electrical
service, a connection to a water well, and an underground holding tank for
waste water. The tool shed/cabin was not used as a residence at any time
before the Town adopted its first zoning ordinance in 1953. That ordinance
was the first to prohibit more than one dwelling per lot.

There is no evidence that the tool shed/cabin was used as a dwelling
until the 1970s. The trial court could not determine based upon the evidence
before it whether the tool shed/cabin was used at all, let alone as a dwelling,
between 1979 and 1986. In 1986, the son of the then owners of the parcel
moved into the tool shed/cabin. He lived there until 1988 or 1989.

The tool shed/cabin was next used as a dwelling in 1991 when the then
owners rented it out as a second dwelling. The Town building inspector issued
a cease and desist letter to those owners, explaining that using the tool
shed/cabin as a second dwelling violated the ordinance. The letter stated that
the tool shed/cabin “is not, nor has it ever been, a legal dwelling,” and, thus,
“could not be legally occupied.” Although the water district disconnected the
tool shed/cabin from the water line, the owners reconnected it. The owners
ignored the cease and desist letter and rented out the cabin to multiple tenants
from 1991 to 2000, when they sold the parcel to the plaintiff’s immediate
predecessor-in-title, Robert MacLeod.
 In 2003, one of MacLeod’s neighbors complained that MacLeod had
installed a mailbox for the tool shed/cabin. At that time, MacLeod was renting
the tool shed/cabin to tenants. The building inspector met with MacLeod and
inspected the tool shed/cabin. Thereafter, the building inspector sent a letter
to the complaining neighbor dated July 8, 2003, which stated:

Mr. Mac[L]eod brought to my attention that when he bought this
property, his attorneys researched the legitimacy of the second
dwelling and discovered that in 1991, this issue had come in the
town as a cease and desist.

It was determined that the structure and use of the second
dwelling was established prior to zoning . . .

Therefore, . . . the second dwelling is a legal use and may continue
indefinitely.

The letter was sent to the Town Administrator and to the Board of Selectmen.
A copy of the letter was also placed “in the Town’s file.” There is no evidence,
however, that the letter was ever sent to MacLeod. Nor is there any evidence
that the building inspector ever informed MacLeod otherwise that the tool
shed/cabin’s use as a second dwelling was a grandfathered, nonconforming
use.

In 2005, MacLeod obtained an opinion letter from an attorney regarding
the lawfulness of using the tool shed/cabin as a second dwelling. The attorney
explained that, in 1991, he had researched the lawfulness of using the tool
shed/cabin as a second dwelling for its then owner and had discovered that
“the second dwelling unit has been present on the lot since some time in the
early 1940’s, before the enactment of zoning by the [T]own . . . in 1953.” He
also indicated that the prior owner of the property had done her own research
and had discovered that the tool shed/cabin “had been used continuously as a
dwelling unit until around 1989.” He explained that in 1991, he had informed
the building inspector that the tool shed/cabin qualified as a prior, non-
conforming use, but that the building inspector had not responded to this
information. He stated that he understood that MacLeod had given the same
explanation to the current building inspector, and that the building inspector
had not responded to MacLeod’s explanation. The attorney opined that
“[b]ased on the fact that two different building inspectors . . . apparently
accepted the explanation that the [tool shed/cabin] qualified as a prior non-
conforming use, it was reasonable to conclude that” using the tool shed/cabin
as a second dwelling did not violate the Town zoning ordinance. The attorney’s
letter did not refer to the July 8, 2003 letter from the building inspector.

The trial court inferred from the attorney’s letter that the attorney did not
know about the July 8, 2003 letter and that MacLeod did not know about the

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letter, either. The court stated: “If counsel had been aware of the letter then
(a) he would have mentioned it and (b) he would not have said MacLeod never
heard back from the [T]own.”

MacLeod sold the parcel to the plaintiff in 2006. MacLeod sent the
plaintiff’s realtor a copy of the attorney’s 2005 letter. The realtor then
exchanged emails with the building inspector, who informed the realtor that
the tool shed/cabin could be used by the owners as a guest house, but could
not be used “for anything other than occasional use” and could not be rented.

In 2008, the building inspector issued an enforcement order to the
plaintiff, noting that it had come to her attention that the tool shed/cabin was
being rented. The building inspector informed the plaintiff that the tool
shed/cabin “is an illegal structure that has a history of enforcement,” and that
it could be used only occasionally as a guest house for family, and that money
could not be collected for its use. The building inspector stated: “This
structure is not legal, does not have a legal septic system, and can not [sic] be
used as a dwelling.”

In January 2009, the building inspector advised the plaintiff that the
2005 attorney opinion letter did not provide adequate grounds for his
continued rental of the cabin. The building inspector explained that in order
for the use of the tool shed/cabin to be lawful as a pre-existing, nonconforming
use, “the use must be grandfathered, and there is no proof that [the tool
shed/cabin] was used as a dwelling pre-zoning, only that the structure
existed.” The building inspector informed the plaintiff that he could: (1) cease
and desist using the tool shed/cabin as a second dwelling; (2) obtain the
necessary variances; or (3) appeal her enforcement order to the ZBA. The
plaintiff ignored the building inspector’s enforcement order and continued to
rent the tool shed/cabin.

In September 2015 and April 2016, a new building inspector issued two
virtually identical notices to the plaintiff regarding his continued use of the tool
shed/cabin as a second dwelling, requiring him to vacate the tool shed/cabin,
remove its kitchen and bathroom, and schedule an inspection to prove
compliance. The building inspector issued a third notice to the plaintiff in July
2016. The plaintiff responded, through counsel, that the prior inspector’s July
8, 2003 letter, which was sent to the complaining neighbor, but not to the
plaintiff’s predecessor-in-title, constituted a binding “thirteen-year[-]old
determination of the legality” of using the tool shed/cabin as a second dwelling.
The building inspector issued a fourth and final notice of violation on
November 1, 2016, alleging the same violations as the prior three notices.

The plaintiff appealed the November 1, 2016 notice of violation to the
Town’s zoning board of adjustment (ZBA), which upheld it. The ZBA found that
“neither the use nor the structure of the second dwelling on the lot was

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‘grandfathered,’” and, therefore, the tool shed/cabin “and its use are not
exempt from the present zoning regulations.” The ZBA further found that the
tool shed/cabin violated the Town’s building code because it lacked an
individual sewage disposal system and was prohibited by the Town zoning
ordinance because the tool shed/cabin is located within the Wetlands Buffer.
The ZBA also denied the plaintiff’s requested variances.

The plaintiff appealed the ZBA’s decisions to superior court and sought a
declaratory judgment that the Town was precluded from enforcing its zoning
regulations and building code under the doctrine of municipal estoppel. The
plaintiff’s actions were consolidated in the superior court. The parties agreed
to waive their rights to an evidentiary hearing on the plaintiff’s municipal
estoppel claim and agreed that the trial court could decide the claim based
upon the certified record of the ZBA proceedings and other specified
documents.

Following a non-evidentiary hearing, the trial court upheld the ZBA’s
decisions and ruled in favor of the Town on the plaintiff’s municipal estoppel
claim. The plaintiff has appealed only the superior court’s ruling on his
municipal estoppel claim.

The doctrine of municipal estoppel is an equitable doctrine that has been
applied to municipalities “to prevent unjust enrichment and to accord fairness
to those who bargain with the agents of municipalities for the promises of the
municipalities.” Sutton v. Town of Gilford, 160 N.H. 43, 58 (2010) (quotation
omitted). The elements of municipal estoppel are:

first, a false representation or concealment of material facts made
with knowledge of those facts; second, the party to whom the
representation was made must have been ignorant of the truth of
the matter; third, the representation must have been made with
the intention of inducing the other party to rely upon it; and
fourth, the other party must have been induced to rely upon the
representation to his or her injury.

Id. (quotation omitted). Moreover, a party’s reliance upon the representation
must be reasonable. Id. Each element of estoppel requires a factual
determination. Id. The party asserting estoppel bears the burden of proving
the elements of the doctrine. Turco v. Town of Barnstead, 136 N.H. 256, 261
(1992). “While municipal corporations have long been subject to estoppel, the
law does not favor its application against municipalities.” Id. (citations
omitted). “Accordingly, the doctrine is applied against a municipality with
caution and only in exceptional cases under circumstances clearly demanding
its application to prevent manifest injustice.” Town of Seabrook v. Vachon
Management, 144 N.H. 660, 666 (2000) (quotation omitted). We will uphold

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the trial court’s decision regarding municipal estoppel unless it is unsupported
by the evidence or erroneous as a matter of law. Turco, 136 N.H. at 261.

In ruling on the municipal estoppel claim, the trial court rejected the
plaintiff’s assertion that he relied upon the July 8, 2003 letter from the
building inspector to the complaining neighbor. The trial court found that the
letter was not sent to MacLeod (the plaintiff’s predecessor-in-title) and that the
documents in the record “compel[] the inference that neither . . . MacLeod[] nor
[the plaintiff], who purchased the property from [him], were ever aware of the
letter until [the plaintiff] [later] stumbled across it.” The court found that
because the plaintiff “knew nothing of the building inspector’s 2003 letter to
the neighbor when he purchased the property, he could not have relied on the
representations in that letter in making his purchasing decision.”

The plaintiff’s primary argument on appeal is that he “carried out his
own due diligence and inspected the property and reviewed the property file,”
which contained the July 8, 2003 letter, “as part of his preparation to purchase
said property.” He contends that he “reviewed the town record in and around
May 24 2006 before closing on the home in August of 2006.”

The record submitted on appeal does not support this assertion,
however. There are no documents in the appellate record demonstrating that
plaintiff saw or was aware of the July 8, 2003 letter before he purchased the
subject property in 2006. At best, the appellate record demonstrates that at
some point after the plaintiff sent an email to the building inspector on May 27,
2016, and before he sent an email to his attorney on August 11, 2016, the
plaintiff discovered the July 8, 2003 letter “in the planning office records.”
Notably, the plaintiff does not refer to the July 8, 2003 letter in his May 27,
2016 email to the building inspector. In his August 11, 2016 email to his
counsel, the plaintiff states that he read the July 8, 2003 letter “last week.”

The plaintiff has appended to his brief a document that appears to show
that, before purchasing the property, he had it inspected by “HouseMaster” on
May 24, 2006. Because the Town does not argue otherwise, we assume that
this document was part of the record submitted to the trial court. However,
even so, proof that the property was inspected by an inspection company in
May 2006 does not establish that the plaintiff saw or was aware of the July 8,
2003 letter at that time.

We have reviewed the plaintiff’s remaining appellate arguments and
conclude that they do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993). As the appealing party, the plaintiff has the burden of
demonstrating that the trial court committed reversible error. See Gallo v.
Traina, 166 N.H. 737, 740 (2014). Based upon our review of the trial court’s
well-reasoned order, the plaintiff’s challenges to it, the relevant law, and the
record submitted on appeal, we conclude that the plaintiff has not met that

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burden. See id. Thus, the plaintiff has failed to establish that the trial court’s
municipal estoppel decision is either unsupported by the evidence or erroneous
as a matter of law. See Turco, 136 N.H. at 261. We, therefore, uphold the trial
court’s determination that the doctrine of municipal estoppel does not bar the
Town from enforcing its zoning regulations and building code.

Affirmed.

Lynn, C.J., and Hicks, Bassett, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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