William J. Knaus & a. v. Namaschaug Landing Association

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0093, William J. Knaus & a. v.
Namaschaug Landing Association, the court on September 26,
2019, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The plaintiffs, William J. Knaus, Nancy B. Knaus, and Forrest L.
Patenaude, appeal the order of the Superior Court (Ruoff, J.) granting summary
judgment in favor of the defendant, Namaschaug Landing Association, on their
complaint for declaratory judgment relating to a proposed lot line adjustment.

The record shows that the plaintiffs own two of seven residential units in
a cluster development subdivision. The subdivision consists of more than 40
acres of land; individual lots for the seven units comprise approximately six
acres, and the remaining land is designated as common land for the benefit of
all unit owners. In 2017, after obtaining the association’s approval, one of the
unit owners submitted an application to the planning board for a lot line
adjustment to allow for the construction of an additional bay onto his existing
garage. The applicant proposed purchasing approximately 0.9 acres of
common land from the association to meet the town’s setback requirements.
The plaintiffs filed this action, and the parties agreed to stay the planning
board proceedings pending the outcome of this case. The trial court entered
summary judgment in the defendant’s favor, and the plaintiffs now appeal.

The plaintiffs argue that: (1) the town’s zoning ordinance does not permit
any portion of common land in a cluster development to be conveyed to a unit
owner; (2) the association’s declaration of covenants, restrictions, easements,
charges, and liens does not permit a change in the common land without the
plaintiffs’ consent; (3) the lot line adjustment confers no benefit to the
association; (4) the association should be estopped from amending the
declaration without unanimous consent; and (5) the statute of frauds bars any
amendment to the declaration without the written consent of all unit owners.

The trial court ruled that the issue of whether the proposed lot line
adjustment would violate the zoning ordinance is not ripe for review because
the planning board has not yet acted on the application, and that if the board
approves the application, the plaintiffs will have a right to appeal the decision
pursuant to RSA 677:15 (2016). The court ruled that even if the lot line
adjustment requires an amendment to the declaration, the declaration
specifically provides that a vote of five of the seven unit owners is sufficient.
The court also ruled that the declaration does not require the association to
obtain a benefit before adopting an amendment, noting further that the unit
owner has offered to compensate the association for the proposed lot line
adjustment. Addressing the plaintiffs’ estoppel argument, the court ruled that
a prior draft amendment to the declaration, which was never adopted, and
which included places for the signatures of all unit owners, did not, standing
alone, constitute an admission by the defendant that unanimity is required for
amendment. The court ruled that the statute of frauds does not bar the
proposed lot line adjustment because a change in the common land does not
require written releases from the unit owners.

As the appealing parties, the plaintiffs have the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the plaintiffs’ challenges to it, the
relevant law, and the record submitted on appeal, we conclude that the
plaintiffs have not demonstrated reversible error. See id.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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