The appellant, Demoulas Supermarket, Inc., d/b/a Market Basket (Demoulas), appeals a decision of the trial court affirming the rezoning of a parcel of land by the Portsmouth City Council (city). Demoulas argues that: (1) the trial court erred because there was no substantive evidence demonstrating that the change promoted the city's health, safety or general welfare, as required by statutory and common law; (2) the intervenor's evidence did not support the conclusion that the rezoning was in the public interest; and (3) the city failed to substantially comply with its mandated procedures for amending the parcel's zoning. We affirm.
In an appeal to the superior court, the burden of proof is upon the party seeking to set aside the decision of the local legislative body to show that it was unlawful or unreasonable. RSA 677:6 (1996); see RSA 672:8 (1996) (local legislative body includes city council). The decision appealed from shall not be set aside or vacated, except for errors of law, unless the superior court is persuaded by the balance of probabilities, on the evidence before it, that the decision is unreasonable. RSA 677:6. We will uphold the decision of the trial court unless the evidence does not support it or it is legally erroneous.
The appellant concedes that the central issue on appeal is whether there was any evidence to demonstrate that the zoning change promoted the public interest. As we have previously noted, the State zoning enabling act grants municipalities broad authority to pass zoning ordinances for the health, safety or general welfare of the community. Taylor v. Town of Plaistow, 152 N.H. 142, 145 (2005). "In reviewing the reasonableness of a particular zoning provision, we are mindful that zoning is a legislative function and judging the wisdom of the legislation is not the function of this court." Id. The Portsmouth Master Plan recommended that the parcel be rezoned to be consistent with surrounding land uses and to facilitate consistent and coordinated land use patterns in the area. The trial court found that by rezoning the parcel, the property became compatible with abutting commercial uses. Given the record before us, we find no error. Cf. Bosse v. Portsmouth, 107 N.H. 523, 530-31 (1967) (citing lack of need for disparate zoning of small parcel of land as factor to be considered in determining reasonableness of change in zoning ordinance).
DUGGAN, GALWAY and HICKS, JJ, ...