Grandfathered No More: When a Prior Use Is Deemed Abandoned

We previously wrote about a former church property in Concord, New Hampshire where the owners exceeded the scope of approved variances. The same case also addressed a related issue: when a prior nonconforming, or “grandfathered,” use is deemed abandoned and no longer protected under New Hampshire zoning law.

Background

The property once operated as a church campus consisting of a church building, parish hall, mansion or rectory, and carriage house. Together, those structures supported a single institutional use.

In 2018, the original owner sought to redevelop the property. The owner obtained variances from the Concord Zoning Board of Adjustment to subdivide the campus into two lots and introduce new uses.  On one lot, the owner demolished the church and parish hall and redeveloped the land into a “pocket subdivision” of residences. That redevelopment eliminated the core structures associated with the prior church use.

The second lot contained the mansion. A variance permitted its use as an office and “live/work” space (space usable either as a residence or for work). No religious or institutional use remained.

Later in 2018, the owner obtained a second variance expanding the mansion lot to include the carriage house. The application proposed a community room, garage, and storage on the first floor and fitness rooms on the second floor. The application described these as new accessory uses serving the office and live/work space in the mansion. It did not claim they continued any nonconforming use.

After the property transferred to the current owners, the city observed new activities. The owners rented the community room for public events and operated golf and racing simulators. The city issued a zoning determination requiring new variances. The ZBA affirmed the decision and the owner appealed.

Superior Court

The superior court rejected the owners’ grandfathering argument and concluded any prior nonconforming use associated with the former church campus had been abandoned through demolition, subdivision, and redevelopment. The court therefore ruled that no protected nonconforming use survived to justify the current activities.

Supreme Court

On appeal, the owners argued that the challenged activities qualified as a continuation of the former church use and therefore retained grandfathered protection. They acknowledged that the redevelopment was “not technically a permitted continuation of a nonconforming use,” but asserted that, “as a practical matter,” the new uses were nearly identical to the historic church use from an impact standpoint because both involved gatherings and activity on the property.

The Supreme Court agreed with the city and rejected the impact-based argument. It emphasized that the owners demolished the church and parish hall, subdivided the campus, and affirmatively sought variances for new residential, office, and accessory uses. The Court also relied on the owners’ written representations describing the carriage house as being “redeveloped” for new accessory purposes tied to the office and live/work space. Taken together, those actions and admissions demonstrated intentional and permanent discontinuance of the prior church use, even if the owners believed the new uses produced comparable impacts.

Accordingly, the Court concluded that the historic nonconforming use had been abandoned and could not be revived through functional analogy. The Court affirmed the superior court and the ZBA.

Why This Matters

Grandfathered protection may not survive intentional redevelopment. Demolition, subdivision, and new approvals often mark a clean break from the past. New Hampshire nonconforming-use law turns on use and intent, not on whether a new activity feels similar in effect.

Equally important, representations matter. When owners state that a proposal does not continue a nonconforming use, courts will give that statement significant weight. After redevelopment, zoning compliance depends on current approvals, not on historical associations.

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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