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Merriam Farm, Inc. v. Town of Surry

July 18, 2012

MERRIAM FARM, INC.
v.
TOWN OF SURRY



The opinion of the court was delivered by: Dalianis, C.J.

a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.

Argued: June 14, 2012

The petitioner, Merriam Farm, Inc. (Merriam Farm), appeals a decision of the Superior Court (Arnold, J.) that upheld the denial of Merriam Farm's application for a building permit by the zoning board of adjustment (ZBA) of the respondent, Town of Surry (Town). We affirm.

The following facts are drawn from the record. Merriam Farm owns a three-acre parcel of land in Surry (the Property). Under the Town's zoning ordinance, 200 feet of frontage on a public street is required to build on the Property. According to the ordinance, a "public street" is a class V or better highway. See RSA 229:5 (2009) (setting forth highway classification system). The Property has frontage on a class VI highway.

In April 2009, Merriam Farm applied to the Town's selectboard for a building permit to construct a single-family home on the Property. The selectboard denied Merriam Farm's application because the Property lacked frontage on a class V or better highway. Merriam Farm appealed the selectboard's decision to the ZBA. The ZBA directed the selectboard to reconsider its denial of Merriam Farm's application for a building permit and to consult with the planning board before doing so. After consulting with the planning board, the selectboard again voted unanimously to deny Merriam Farm's building permit application. The selectboard denied Merriam Farm's subsequent motion for rehearing, and Merriam Farm appealed the selectboard's decision to the ZBA pursuant to RSA 674:41, II (2008).

The ZBA voted to deny Merriam Farm's appeal in part because Merriam Farm bought the Property in 2002, and the road on which the Property has frontage was closed in 1971 "subject to gates and bars for the purpose of preventing development in this area." The ZBA also decided not to grant Merriam Farm a "reasonable exception" to the provisions of RSA 674:41 (2008). Like the Town's ordinance, RSA 674:41 also requires frontage on a class V or better highway before a building may be erected on a lot, except under certain circumstances. See 15 P. Loughlin, New Hampshire Practice: Land Use Planning and Zoning § 29.19, at 528-32 (4th ed. 2010). RSA 674:41, II allows an applicant to appeal the denial of a building permit and allows a zoning board to "make reasonable exception" to the requirements of RSA 674:41. Merriam Farm unsuccessfully moved for rehearing, and then appealed the ZBA's decision to the superior court, which upheld it. This appeal followed.

Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553, 555 (2011). Factual findings of the ZBA are deemed prima facie lawful and reasonable, and the superior court will not set aside the ZBA's decision absent errors of law unless it is persuaded by the balance of probabilities, on the evidence before it, that the decision is unlawful or unreasonable. RSA 677:6 (2008); Brandt Dev. Co. of N.H., 162 N.H. at 555. We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555. The interpretation and application of a statute or ordinance is a question of law, which we review de novo. Id.

Merriam Farm first argues that RSA 674:41, I(c) required the selectboard to consult with the planning board before denying Merriam Farm's building permit application. Under RSA 674:41, I(c), a building may be built on a lot having frontage on a class VI highway only if: (1) "[t]he local governing body after review and comment by the planning board has voted to authorize the issuance of building permits for the erection of buildings on said class VI highway or a portion thereof"; (2) "[t]he municipality neither assumes responsibility for maintenance of said class VI highway nor liability for any damages resulting from the use thereof"; and (3) before the building permit is issued, "the applicant . . . produce[s] evidence that notice of the limits of municipal responsibility and liability has been recorded in the county registry of deeds." See Vachon v. Town of New Durham Z.B.A., 131 N.H. 623, 628 (1989).

Merriam Farm argues that because the selectboard did not consult with the planning board initially, the selectboard violated RSA 674:41, I(c). We need not address the merits of this argument, however, because this alleged error was corrected. After Merriam Farm appealed the selectboard's decision to the ZBA, the ZBA, in effect, vacated the decision and instructed the selectboard to reconsider its decision after consulting with the planning board. The selectboard complied with this instruction, thereby remedying the alleged error.

Merriam Farm next asserts that to obtain relief from either the Town's ordinance or RSA 674:41, it had to meet only the "practical difficulty" standard set forth in RSA 674:41, II, and that both the trial court and the ZBA misapplied this standard. RSA 674:41, II allows an applicant to appeal the denial of a building permit "[w]henever the enforcement of the provisions of [RSA 674:41] would entail practical difficulty or unnecessary hardship."

Merriam Farm argues that "practical difficulty" and "unnecessary hardship" are two different standards. To Merriam Farm, "unnecessary hardship" is the same standard that governs variance requests, see RSA 674:33, I(b)(5) (Supp. 2011), while "practical difficulty" is a less rigorous standard. Merriam Farm asserts that "a practical difficulty exists when dimensional requirements under a zoning ordinance render property unusable for an otherwise permitted use." See Duncan v. Village of Middlefield, 491 N.E.2d 692, 695 (Ohio 1986). "Because the Property has substantial frontage on a public way that is safe and adequate for access to the Property," Merriam Farm reasons that applying the frontage requirement to its "otherwise permitted residential use of the Property constitutes a practical difficulty."

Because neither party has argued otherwise, we assume, without deciding, that RSA 674:41, II governs Merriam Farm's application both for a reasonable exception from RSA 674:41's requirements and for relief from the Town's ordinance. But see Goslin v. Town of Farmington, 132 N.H. 48, 50 (1989) (landowner sought variance under RSA 674:33 from ordinance requiring subdivisions to have frontage on class V or better highway or on private road built to town standards). Determining the meaning of the phrase "practical difficulty or unnecessary hardship," as used in RSA 674:41, II, requires us to engage in statutory interpretation, which is a question of law that we review de novo. See Brandt Dev. Co. of N.H., 162 N.H. at 555. We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Appeal of Wilson, 161 N.H. 659, 662 (2011). We first examine the language of the statute and ascribe the plain and ordinary meanings to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language the legislature did not see fit to include. Id. Furthermore, we interpret statutes in the context of the overall statutory scheme and not in isolation. Id. "In so doing, we are better able to discern the legislature's intent, and therefore better able to understand the statutory language in light of the policy sought to be advanced by the entire statutory scheme." Id. (quotation omitted).

RSA 674:41 does not define the phrase "practical difficulty or unnecessary hardship." However, the term "unnecessary hardship" is defined in RSA 674:33, I(b)(5), which applies to variance requests and is part of the same statutory scheme as RSA 674:41. "Courts across the country have taken differing approaches when construing language similar or identical to" the "practical difficulty or unnecessary hardship" language in RSA 674:41, II. In re Stadsvold, 754 N.W.2d 323, 330 (Minn. 2008), superseded on other grounds by statute as stated in Mutsch v. County of Hubbard, Nos. A11-725, A11-726, 2012 WL 1470152, at *4 n.3 (Minn. Ct. App. Apr. 30, 2012). "Generally, this dual standard has been treated in one of two ways." Matthew v. Smith, 707 S.W.2d 411, 416 (Mo. 1986) (en banc). "On the one hand, many courts view the two terms as interchangeable." Id. (citing cases). In New Jersey, for instance, courts have held that "[a]lthough the language would seem to indicate two different standards, difficulties or hardship, the two in large measure are overlapping and complementary." Chirichello v. Zoning Bd. of Adjustment, Etc., 397 A.2d 646, 650 (N.J. 1979); see 165 Augusta St. v. Collins, 87 A.2d 889, 891 (N.J. 1952). "On the other hand, a number of jurisdictions follow the approach of New York, the jurisdiction where the language originated, and hold that 'practical difficulties' is a slightly lesser standard than 'unnecessary hardship . . . .'" Matthew, 707 S.W.2d at 416 (citing cases). These jurisdictions apply the "practical difficulty" standard to the granting of an area variance, and the "unnecessary hardship" standard to the granting of a use variance. Id.; see Boccia v. City of Portsmouth, 151 N.H. 85, 91 (2004), superseded by Laws 2009, 307:5-:6; see also 3 E. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning § 58:15 (2012) (citing cases).

We believe that the New Jersey approach best comports with our legislature's intent given the entire statutory scheme, of which RSA 674:41, II is a part, and the legislature's decision to adopt a uniform "unnecessary hardship" ...


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