Variance Scope Is Defined by Applicant Representations; Public Rentals and Simulator Uses Exceed Accessory-Use Variances, and Redevelopment Abandons Prior Nonconforming Use — 135 NSS, LLC v. City of Concord (N.H. 2025)

Introduction

In 135 NSS, LLC & a. v. City of Concord, No. 2024-0224 (N.H. Aug. 12, 2025), the New Hampshire Supreme Court affirmed a Superior Court judgment upholding a decision of the Concord Zoning Board of Adjustment (ZBA). The dispute centered on whether the owners of 135 North State Street could operate the first floor of a carriage house as a public event space and the second floor as a commercial simulator venue (golf and racing), under variances previously granted to redevelop the property’s mansion lot for office and live/work purposes with specified accessory uses.

The case presented six principal issues: (1) whether plaintiffs preserved a takings claim; (2) whether there was a due-process violation in the ZBA process; (3) whether the trial court erred by denying an evidentiary hearing; (4) whether municipal estoppel barred the City’s enforcement; (5) whether the plaintiffs’ uses were a continuation of a prior nonconforming use; and (6) whether the contested uses fell within the scope of the existing variances or should be categorized as a “commercial indoor recreational facility.” The Court affirmed across the board in favor of the City.

The Opinion clarifies several important land-use principles under New Hampshire law: applicant representations circumscribe the scope of granted variances; redevelopment and demolition can constitute abandonment of prior nonconforming uses under Concord’s ordinance; novel recreational technologies (golf/racing simulators) align with “commercial indoor recreational” uses rather than generic “fitness rooms;” and litigants must diligently preserve claims and timely request evidentiary proceedings.

Summary of the Opinion

Preservation: The takings claim was not preserved because it was not raised in the notice of appeal. The due-process challenge to the ZBA’s process was also unpreserved because it was not raised in the trial court. See Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018); State v. Oakes, 161 N.H. 270, 285 (2010).
Evidentiary hearing: The trial court acted within its discretion in denying the plaintiffs’ last-minute request (made approximately one hour before the merits hearing) for limited discovery and an evidentiary hearing on municipal estoppel and prior nonconforming use. The record was “replete” for review, and no unsustainable exercise of discretion occurred. See Rochester City Council v. Rochester Zoning Bd. of Adjustment, 171 N.H. 271, 279 (2018).
Municipal estoppel: The claim failed because the plaintiffs did not show a false representation or concealment of material fact by the City, an essential element of estoppel. See Sutton v. Town of Gilford, 160 N.H. 43, 58 (2010).
Nonconforming use: Demolition of the former church and parish hall and the redevelopment pursuant to the variances demonstrated intentional and permanent discontinuance — i.e., abandonment — of any prior nonconforming use under Concord Zoning Ordinance § 28-8-6(b) and (b)(1).
Variance scope and use classification: The prior variances authorized the carriage house’s “community room,” “fitness rooms,” and “garage/storage,” solely as accessory uses to the mansion’s office/live-work and for the pocket neighborhood. Public rentals and simulator-based activities were not contemplated. The simulator use is accurately categorized under the City’s Table of Principal Uses as a “Commercial Indoor Recreational Facility,” akin to bowling alleys and billiard halls (Concord Zoning Ordinance § 28-2-4, #C3).
Disposition: The Superior Court’s affirmation of the ZBA was supported by the record and free of legal error. See Monadnock Rod and Gun Club v. Town of Peterborough, 2024 N.H. 61, ¶10; RSA 677:6.

Factual and Procedural Background

The property at 135 North State Street was formerly a church campus, including a church, parish hall, a mansion (rectory), and a carriage house. In 2018, the then-owner, Jonathan Chorlian, obtained a variance to subdivide the property. He demolished the church and parish hall and redeveloped one lot into a “pocket neighborhood” of cottages. The second lot contained the mansion, to be used for office and live/work space. A later variance expanded the mansion lot to include the carriage house for specified accessory uses: a community room and garage/storage on the first floor and fitness rooms on the second floor, to be used by people working in the office, living in the live/work space, and by the pocket neighborhood residents.

After title to the mansion lot passed to the plaintiffs, the City’s Code Administrator observed the carriage house being used for public rentals and commercial simulators. In June 2022, the administrator determined that these uses exceeded the variances, classifying them as “public assembly” (first floor) and “Commercial Indoor Recreational Facility” (second floor). The ZBA twice affirmed that conclusion. The Superior Court affirmed, rejecting arguments involving takings, due process, the need for an evidentiary hearing, municipal estoppel, continuation of a nonconforming use, and variance scope. The Supreme Court affirmed the Superior Court in all respects.

Detailed Analysis

1) Precedents and Authorities Cited

The Court’s framework and outcomes were guided by well-settled New Hampshire precedents and specific sections of Concord’s Zoning Ordinance:

Standard of review in ZBA appeals: Monadnock Rod and Gun Club v. Town of Peterborough, 2024 N.H. 61, ¶10, and RSA 677:6. ZBA factual findings are “prima facie lawful and reasonable.” Courts do not set aside ZBA decisions absent unreasonableness or legal error; appellate review of the Superior Court is for evidentiary support and legal correctness.
Appeal procedure: RSA 677:4 governs appeals to the Superior Court.
Issue preservation: Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574 (2018) (arguments not in the notice of appeal are unpreserved); State v. Oakes, 161 N.H. 270, 285 (2010) (issues not raised below are not preserved for appellate review).
Additional evidence in Superior Court: Rochester City Council v. Rochester Zoning Bd. of Adjustment, 171 N.H. 271, 279 (2018) (trial court has discretion to accept evidence beyond the certified record to fill gaps; review is for unsustainable exercise of discretion).
Municipal estoppel elements: Sutton v. Town of Gilford, 160 N.H. 43, 58 (2010) (four elements including a false representation or concealment, ignorance of the truth by the relying party, intent to induce reliance, and detrimental reliance; reliance must be reasonable).
Ordinance interpretation: Naser v. Town of Deering Zoning Bd. of Adjustment, 157 N.H. 322, 324 (2008) (interpretation of a zoning ordinance is a question of law, reviewed de novo).
Concord Zoning Ordinance — Abandonment: § 28-8-6(b) (abandonment is the intentional or implicit discontinuance of a nonconforming use for a specified period) and § 28-8-6(b)(1) (evidence includes removal of characteristic equipment/furnishings without replacement within 12 months, and other overt acts evidencing discontinuance).
Concord Zoning Ordinance — Use classification: § 28-2-4 (Table of Principal Uses #C3), listing indoor recreational activities such as bowling alleys and billiard halls, guiding the categorization of the simulator use.
Discretion not to address additional arguments: Vogel v. Vogel, 137 N.H. 321, 322 (1993) (court may decline to address arguments not warranting further discussion).

2) The Court’s Legal Reasoning

a) Preservation and Due Process

The Court first applied strict preservation rules. Because the takings claim was not included in the notice of appeal to the Supreme Court, it was unpreserved (Halifax-American). Similarly, due-process objections to the ZBA’s procedures were not raised in the Superior Court, and thus were unpreserved on appeal (Oakes). These holdings underscore that land-use litigants must preserve issues scrupulously at each stage.

b) Evidentiary Hearing and Extra-Record Evidence

Turning to the Superior Court’s refusal to hold an evidentiary hearing, the Court invoked Rochester City Council’s framework: while a trial court may accept extra-record evidence to supplement gaps, such decisions are entrusted to its discretion. The plaintiffs requested an evidentiary hearing only about an hour before the merits hearing and, critically, their counsel acknowledged the record was “replete” for the court’s evaluation. On these facts, denying a last-minute request was a sustainable exercise of discretion.

c) Municipal Estoppel

The plaintiffs argued that the City should be estopped from challenging their uses based on earlier interactions (including a 2019 email to a prior code administrator). The Court, relying on Sutton, emphasized the indispensability of a false representation or concealment of material facts. The plaintiffs conceded there was no false representation by the City. Without this first element, the equitable doctrine could not apply. This part of the Opinion affirms that municipal estoppel is narrow and requires a clear factual predicate of misrepresentation by the municipality or its agents.

d) Nonconforming Use and Abandonment

The plaintiffs asserted that their current operations continued historical nonconforming uses. The Court disagreed. Under Concord Zoning Ordinance § 28-8-6(b) and (b)(1), abandonment turns on intentional or implicit discontinuance, evidenced by overt acts like removal of characteristic equipment and furnishings, or here, demolition and redevelopment. The record showed:

Demolition of the church and parish hall and redevelopment into a new pocket neighborhood;
Applications that expressly acknowledged the mansion’s new use was “not technically a permitted continuation of a nonconforming use,” even if similar “as a practical matter” from an “impact” standpoint;
Plans to redevelop the carriage house for new accessory purposes tied to the mansion office/live-work uses.

These facts supported the Superior Court’s conclusion that any prior nonconforming use associated with the church campus had been intentionally and permanently discontinued. The Court therefore affirmed the finding of abandonment as supported by the record and not legally erroneous.

e) Variance Scope: Accessory Uses, Public Rentals, and Simulators

The core of the dispute was whether the plaintiffs’ actual uses fit within the previously granted variances. The Court’s reasoning proceeded in two steps:

Scope defined by representations: The original applications specified the carriage house would host a community room and fitness rooms as accessory uses in support of the mansion’s office/live-work and the pocket neighborhood. They described users: office workers, the mansion’s live/work occupants, and neighborhood residents. The applications did not represent that the spaces would be open to the public or available for commercial rentals. The Court read the scope of the variance in light of these representations. Public event rentals therefore exceeded the contemplated “community room” accessory use.
Use classification for simulators: The variance did not mention simulators, and “fitness room(s)” did not necessarily contemplate technology-based, fee-generating simulator activities. The Code Administrator analogized simulators to indoor recreational uses listed in the ordinance (e.g., bowling alleys, billiard halls) under § 28-2-4 (#C3). The ZBA and courts accepted this classification as lawful and reasonable. The simulator use was thus a “Commercial Indoor Recreational Facility,” a principal use distinct from an accessory “fitness room” for the building’s defined user group.

Applying Monadnock’s deferential standard, the Court concluded the ZBA’s determinations — both that public rentals were beyond the variance and that the simulator use was properly categorized as commercial indoor recreation — were supported by the record and not legally erroneous.

3) Impact and Implications

a) Variances Are Cabined by What Applicants Tell the ZBA

This decision foregrounds a practical but powerful rule: the scope of a variance is defined not only by its text but also by the applicant’s representations during the approval process. Here, the stated purpose and described users for the carriage house — office/live-work users and neighborhood residents — bounded what was authorized. Future applicants should comprehensively disclose all intended uses and user populations, including any potential public or commercial elements, to avoid later enforcement actions.

b) Modern Recreational Technologies Fit Traditional Use Categories

The Court’s acceptance of the City’s classification of golf and racing simulators as “Commercial Indoor Recreational Facility” shows that new technologies will be mapped to functionally analogous categories in zoning ordinances. If a use looks and operates like a public-facing, fee-based recreation venue, it will likely be treated as such, even if the technology is novel and even if the applicant labels it “fitness.”

c) Redevelopment and Demolition Can Abandon Nonconforming Uses

Abandonment is not merely about the passage of time; it can be evidenced by overt acts like demolition, subdivision, and redevelopment for new, different uses. Explicit acknowledgments in applications — such as that a new use is not a continuation of a prior nonconforming use — provide compelling evidence of intent to discontinue. Owners seeking to preserve nonconforming rights must proceed cautiously and consistently with ordinance requirements.

d) Municipal Estoppel Remains Narrow

Municipal estoppel requires a false representation or concealment by the municipality. General assurances about the existence of a variance or a lack of objection are rarely enough. Developers should not rely on informal communications to expand or redefine approved uses; formal approvals govern.

e) Litigation Practice: Preserve, and Be Timely

Include all appellate issues in the notice of appeal; unlisted claims (e.g., takings) are forfeited.
Raise constitutional process arguments (e.g., due process) in the trial court to preserve them for appeal.
If extra-record evidence is needed, move early and explain why the certified record is incomplete; last-minute requests, particularly when counsel concedes the record is sufficient, are unlikely to succeed.

4) Complex Concepts Simplified

Variance: Permission to deviate from zoning rules for a specific property. It can be conditioned and is interpreted in light of the application and representations made to the ZBA.
Accessory use: A subordinate use that supports the principal permitted use (here, the mansion’s office/live-work), and is typically limited to the users of that principal use, not the general public.
Nonconforming use: A use that lawfully existed before a zoning change made it noncompliant. It may continue unless abandoned.
Abandonment: Under Concord’s ordinance, an intentional or implicit discontinuance, proved by facts such as removal of characteristic equipment or demolition and redevelopment for new uses.
Municipal estoppel: An equitable doctrine preventing a municipality from contradicting its own false representations when another reasonably relied to their detriment. It requires a clear misrepresentation or concealment by the municipality and reasonable, detrimental reliance.
Commercial Indoor Recreational Facility: A zoning category for public-facing, fee-based indoor recreation venues (e.g., bowling alleys, billiard halls). The Court affirmed that simulator-based offerings fit here rather than in generic “fitness” accessory uses.
Standard of review (ZBA appeals): ZBA findings are treated as presumptively lawful and reasonable; courts will not overturn absent unreasonableness or legal error. Ordinance interpretation is reviewed de novo, but factual determinations get deference.
Unsustainable exercise of discretion: The deferential standard governing a trial court’s discretionary decisions (e.g., whether to accept extra-record evidence).

Conclusion

The New Hampshire Supreme Court’s decision in 135 NSS, LLC v. City of Concord reinforces a disciplined approach to land-use variances and enforcement. Three doctrinal clarifications stand out:

Variance scope is shaped by the applicant’s own representations. When a variance is granted for “community” and “fitness” spaces as accessory to specific principal uses and user groups, later public rentals and fee-based simulator activities exceed that scope.
Abandonment of prior nonconforming uses can be established by overt redevelopment actions (demolition, subdivision, stated new uses) and express acknowledgments that the new use is not a continuation of the old.
Modern, technology-enabled recreation will be classified by its functional characteristics; simulators align with “commercial indoor recreation,” not with incidental “fitness rooms” for limited user populations.

Procedurally, the Opinion is a reminder to preserve issues at every stage, to lodge evidentiary requests in a timely manner, and to recognize the narrowness of municipal estoppel. Substantively, it provides municipalities, boards, and property owners with guidance on how to read, apply, and enforce variances amid evolving recreational uses and redevelopment projects. By affirming the ZBA’s determinations under a deferential standard, the Court signals continuity in New Hampshire land-use law while offering practical clarity about the consequences of what an applicant promises at the variance stage.