Expanding a Use Beyond What a Variance Allows: What New Hampshire Property Owners Should Know
What happens when a property owner expands the use of property beyond what a variance allows? A New Hampshire Supreme Court order provides the answer.
Background
The plaintiffs own property at 135 North State Street in Concord, New Hampshire. The property formerly operated as a church campus consisting of a church, parish hall, mansion or rectory, and a carriage house. In 2018, the original owner obtained variances from the Concord Zoning Board of Adjustment to subdivide the property into two lots and redevelop it.
One lot contained the church, parish hall, and carriage house. Under the variance, the original owner demolished the church and parish hall and redeveloped that lot into a “pocket subdivision” - a small cluster of residences. The second lot contained the mansion, which the variance permitted for office use and as “live/work” space.
In August 2018, the original owner obtained a second variance expanding the mansion lot to include the carriage house. That application proposed a community room, garage, and storage on the first floor and fitness rooms on the second floor. The application described those uses as accessory to the office and live/work space and limited their use to people working or living on the property. It did not contemplate public access or commercial use.
After the property transferred to the current owners, the city code administrator observed new activities. The current owners rented the community room to the general public for events and operated golf and racing simulators in the second-floor rooms. In June 2022, the city issued a zoning determination concluding that these uses required new variances. The ZBA affirmed that determination after a public hearing and again on rehearing. The current owners appealed to the superior court.
Superior Court
The superior court affirmed the ZBA’s decision. It concluded that the existing variances allowed accessory uses tied to the live/work space and residents of the pocket subdivision, not public or commercial uses open to the general public.
Supreme Court
On appeal, the current owners argued their activities fell within the scope of the approved “community room” and “fitness room” uses. The city argued the variances narrowly defined both the nature of the uses and who could use the space.
The Supreme Court agreed with the city. The Court emphasized that the variance applications made no reference to public event rentals, commercial use of the community room, or golf and racing simulators. It also upheld the classification of the simulator activity as a commercial indoor recreational facility rather than a fitness use. Because both uses exceeded what the variances approved, and neither were permitted uses per the zoning ordinance, the Court held that new variances were required and affirmed the superior court.
Why This Matters
As interpreted by the courts in this case, the variances only authorized the uses they described. If additional uses are foreseeable at the application stage, applicants should consider addressing them directly rather than assume flexibility later. When property use arguably evolves beyond the original approval, consider working with the municipality rather than risk a costly violation. Careful planning at the outset and timely recalibration when uses change can prevent regulatory uncertainty and costly disruptions.
135 NSS, LLC v. City of Concord, No. 2024-0224 (N.H. Aug. 12, 2025) (order). (Because the Court issued an “order” rather than an “opinion,” the ruling has no precedential authority over other cases, but it may provide guidance on how New Hampshire courts may approach similar issues in the future.)
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