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Guckert v. Town of Freedom

Supreme Court of New Hampshire

November 17, 2008

Kathleen M. Guckert, Trustee of Guckert New Hampshire Realty Trust
v.
Town of Freedom

UNPUBLISHED OPINION

The respondent, Town of Freedom (the Town), appeals a superior court order reversing the Town of Freedom Zoning Board of Adjustment's (ZBA) decision granting Ossipee Lake Marina (marina) a special exception for unlimited outside boat storage. The Town argues that the superior court erred in ruling that the record did not support the ZBA's finding that the application materially differed from a previously submitted application. We reverse and remand.

Our review of zoning boards of adjustment decisions is limited. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005). "Factual findings of the ZBA are deemed prima facie lawful and reasonable and will not be set aside by the superior court absent errors of law, unless the court is persuaded by a balance of probabilities on the evidence before it that the ZBA decision is unreasonable." Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102, 105 (2007) (quotation omitted); see RSA 677:6 (2008). "We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous." Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005).

We have held that when a material change of circumstances affecting the merits of the application has not occurred or the application is not for a use that materially differs in nature and degree from its predecessor, the board of adjustment may not lawfully reach the merits of the petition. See Fisher v. Town of Dover, 120 N.H. 187, 190 (1980) (emphasis added). The ZBA may allow a second application for substantially the same use, however, if the application is materially different from the first. See Morgenstern v. Town of Rye, 147 N.H. 558, 565-67 (2002) (holding application materially different when single family house design changes made in attempt to meet ZBA's concerns).

The Town contends that the marina's 2006 application was materially different from its 2002 application because the 2002 application "set forth a comprehensive plan that encompassed many aspects of the marina, " while the 2006 application was "strictly limited" only "to expand outside boat storage." In addition, the 2006 application "set forth a different design for the construction of a fence within which to store boats, " and addressed the Town's "fire and safety concerns." The new application gained conditional approval from the Town's Fire Chief.

In response, the petitioner, Kathleen M. Guckert, Trustee of Guckert, New Hampshire Realty Trust (Trust), argues that the ZBA rejected the 2002 application in part because of the inclusion of "unlimited outside boat storage." The 2006 application is also for unlimited boat storage, and before the ZBA considered the new application, it "should have made specific findings as to whether the application was materially different in nature or degree from previously denied applications." Furthermore, the Trust argues that the applicant demonstrated no change in circumstances to support its 2006 application, and "without a finding of a change of circumstances, [the ZBA decision] was contrary to the requirements set forth in Fisher." Therefore, the Trust contends, the ZBA could not lawfully reach the merits of the application.

To lawfully reach the merits of the 2006 application, the ZBA was not required to find that the 2006 application reflected a material change in circumstances and that the application met the test that it was materially different in nature and degree from its predecessor. Rather, the ZBA needed only to find that one of the conditions was met. See Fisher, 120 N.H. at 190; Morgenstern, 147 N.H. at 566.

The superior court found that the ZBA determined that the "applications were different, " but found that determination "unreasonable." "Based on the balance of probabilities, " the superior court found that the applications were substantially the same and the ZBA could not lawfully reach the merits of the 2006 application.

We agree with the superior court's finding that the ZBA did determine that the applications were sufficiently different to warrant consideration but we conclude the superior court erred in finding that the ZBA's determination was unreasonable. The 2006 application was, compared to the 2002 comprehensive application, limited only to outside boat storage and it specifically addressed the outside boat storage concerns expressed by the ZBA when it denied the marina's original application. See Morgenstern, 147 N.H. at 566. Accordingly, we reverse the decision of the superior court that the ZBA could not lawfully reach the merits of the application and remand for proceedings consistent with this order.

Reversed and remanded.

DALIANIS, DUGGAN and HICKS, JJ., ...


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