THE STATE OF NEW HAMPSHIRE
In Case No. 99-296, KSC Realty Trust & a. v. Town of Freedom, the court upon May 24, 2001, made the following order:
Upon the motion for rehearing and reconsideration, the court orders that the slip opinion dated April 9, 2001, is hereby modified. The words "related to and dependent upon" appearing in the last paragraph of the majority opinion on page 4 of the slip opinion are deleted and replaced with the words "incidental and subordinate to," so that the last paragraph of the majority opinion on page 4 in its entirety shall read as follows:
The dissent relies, chiefly, upon two cases: Narbonne v. Town of Rye, 130 N.H. 70 (1987), and Perron v. Concord, 102 N.H. 32 (1959). Both cases disallowed burgeoning businesses from being conducted in exclusively residential zones. See Narbonne, 130 N.H. at 71 (stained glass business in the home); Perron, 102 N.H. at 35-36 (roofing business in the home). It was integral to our analysis in those cases that the alleged "accessory use" was incidental and subordinate to the only permitted use, which was residential. We recognized that certain incremental commercial uses may be permitted within a residential zone so long as they remain related to or dependent upon the residence, and do not become an end in themselves. See Narbonne, 130 N.H. at 73; Perron, 102 N.H. at 36. Here, we look to a completely different permitted use, i.e., water storage facilities, to determine if the distribution and sale is incidental and subordinate to that use. We conclude that it is.
In all other respects, the motion for rehearing and reconsideration is denied.
NADEAU and DALIANIS, JJ., concurred; HORTON, J., retired, specially assigned under RSA 490:3, concurred; BROCK, C.J., and BRODERICK, J., would grant the motion for rehearing and reconsideration.
Howard J. Zibel,
Date of clerks notice of decision: June 5, 2001