George Beliveau & a.
Town of Rye
The petitioners appeal a decision of the superior court upholding a ruling of the Rye zoning board of adjustment (ZBA) denying their variances application. We reverse and remand.
The petitioners own four acres of land on Wallis Road in Rye. With the exception of 22, 000 square feet of upland soil in its western corner, the property consists primarily of wetlands. In October 2010, the petitioners applied to the ZBA for variances from several provisions of the town zoning ordinance and building code. The variances would have allowed them to tear down the three existing, non-conforming structures, whose combined footprint was 1, 611 square feet, and build a new house that would total 3, 630 square feet. The new house would have been more conforming than the existing house as to road setback requirements. The variances also would have allowed the petitioners to build a new septic system. Both the existing and proposed structures are within a 100-foot wetland buffer. The ZBA held several meetings to consider the application, requesting additional information about, and changes to, the proposal. At the final meeting on November 2, 2011, the ZBA voted four to one to deny the variances. After a motion for rehearing was denied, the petitioners appealed to the superior court. See RSA 677:4 (2008). The superior court affirmed, and the petitioners appealed.
The initial variance application sought relief from fourteen provisions of the building code and zoning ordinance, but by the time of the final ZBA vote, only the following variance requests were before the ZBA:
202.13 Upland Soils: All lots shall have at least 44, 000 square feet of upland soils, of which at least 30, 000 square feet shall be contiguous. (Adopted 3/14/00)
204.3(C) Front Yards: There shall be in front of every building a front yard having a minimum depth of thirty (30) feet, provided that no front yard need be deeper than the average of the depths of front yards on the lots next thereto on either side, a vacant lot, or a lot occupied by a building with a front yard more than thirty (30) feet deep being considered as though occupied by a building with a front yard thirty (30) feet deep.
301.7(B) The following restrictions shall apply in the Wetlands Buffer. Where such restrictions conflict with other requirements of this ordinance, the stricter regulation shall apply. (Amended 2002)
1. Surface alteration by the addition of fill, excavation or dredging is prohibited.
2. Septic systems are prohibited. . . . .
7. All other uses are prohibited.
603.2 Abandonment, Discontinuance, Destruction: Any non-conforming building or non-conforming structure which is abandoned or vacated or which is partially or wholly destroyed by reason of any cause whatsoever, including obsolescence, fire, explosion, storm, tides, or other acts of God, may be resumed or restored and operated in its former (non-conformity) if same is done within three (3) years thereafter. If possible, the replacement of the building or structure shall conform to the requirements of this Ordinance with which it previously did not conform, as well as to all other requirements with which it did conform. Otherwise, the replacements of all non-conforming parts of the structure shall be in the same location and of the same dimensions, height and bulk, as before the damage occurred unless changes would make the replacement less non-conforming.
The ZBA did not analyze each provision separately; rather, it denied the application as a whole. Afterwards, the petitioners withdrew their requested relief from the building code; accordingly, that provision is not at issue on appeal.
The petitioners contend that the ZBA's decision was unreasonable and unlawful, and, for that reason, that the superior court erred in upholding it. They maintain that the ZBA impermissibly considered the size and visual impact of the proposed house and otherwise had no lawful basis upon which to deny the variances.
Judicial review in zoning cases 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 the ZBA's decision will not be set aside by the superior court absent errors of law unless it is persuaded by the balance of probabilities, on the evidence before it, that the ZBA decision is unlawful or unreasonable. RSA 677:6 (2008); Harrington, 152 N.H. at 77. We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Harrington, 152 N.H. at 77.
Under RSA 674:33, I(b) (Supp. 2012), a zoning board of adjustment has the power to grant a variance if: (1) "[t]he variance will not be contrary to the public interest"; (2) "[t]he spirit of the ordinance is observed"; (3) "[s]ubstantial justice is done"; (4) "[t]he values of surrounding properties are not diminished"; and (5) "[l]iteral enforcement of the provisions of the ...