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Saviano v. Town of Atkinson

Supreme Court of New Hampshire

October 25, 2013

Michael Saviano
v.
Town of Atkinson

The petitioner, Michael F. Saviano, appeals a superior court order upholding a decision of the zoning board of adjustment (ZBA) for the respondent, the Town of Atkinson (Town), denying his request for either a variance or a special exception to allow him to demolish two existing cottages on his three-acre lot and erect a two-bedroom dwelling in their place. We affirm.

Judicial review in zoning appeals is limited. Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553, 555 (2011). The ZBA's findings of fact are prima facie lawful and reasonable, and the trial 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 ZBA's decision is unlawful or unreasonable. RSA 677:6 (2008). We, in turn, will not overturn the trial court's order unless it is unsupported by the evidence or legally erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555. The standard of review is not whether the court agrees with the ZBA's findings, but whether "there is evidence upon which they could have been reasonably based." Lone Pine Hunters' Club v. Town of Hollis, 149 N.H. 668, 670 (2003) (quotation omitted).

As the party seeking to set aside the ZBA's decision, the petitioner bears the burden of proof. See Pike Indus. v. Woodward, 160 N.H. 259, 262 (2010); RSA 677:6. If any of the ZBA's reasons support its decision, then the appeal must fail. See NBAC Corp. v. Town of Weare, 147 N.H. 328, 332 (2001).

We first address the ZBA's denial of the petitioner's request for a special exception. Under the Town's ordinance, a special exception is required in order for a landowner to expand, enlarge or alter a nonconforming use. The petitioner contended that the cottages constituted nonconforming uses because, although the zoning ordinance now provides that there may be no more than one dwelling unit on a three-acre lot, the cottages existed before that provision was enacted. The ZBA denied the petitioner's request for a special exception on the ground that "there has only been one dwelling recognized on the lot since it was created" in 1994 and 1995. The ZBA decided, therefore, the petitioner's use of the lot was not nonconforming.

On appeal, the petitioner contends that the ZBA's findings are not supported by the record. We disagree. The record contains a September 1997 letter from the ZBA to the petitioner stating that the minutes of a 1992 variance hearing and engineering drawings the petitioner presented to the planning board in 1994 and 1995 referred to one dwelling unit on the lot. Additionally, a 1998 letter to the petitioner demonstrates that when the ZBA granted him a variance so as to build an addition to his existing residence, it did so "based on the condition that there is only one dwelling unit on [the] lot." This evidence supports the ZBA's finding that since the lot was created, it has housed only one dwelling unit. Although the evidence before the ZBA was conflicting, such conflicts were for the ZBA to resolve. See Harborside Assocs. v. Parade Residence Hotel, 162 N.H. 508, 519 (2011).

We next address the ZBA's denial of the petitioner's request for a variance. RSA 674:33, I(b) (Supp. 2012) allows a zoning board 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 ordinance would result in unnecessary hardship." The ZBA denied the petitioner's request for a variance after determining that three of the five variance criteria were not met (spirit of the ordinance, substantial justice, and unnecessary hardship). Because we conclude that the record supports the ZBA's unnecessary hardship determination, we address only this criterion. See NBAC Corp., 147 N.H. at 332 (if any of the ZBA's reasons support its decision, the appeal must fail).

RSA 674:33, I(b) contains two definitions of unnecessary hardship. See RSA 674:33, I(b)(5)(A), (B). Under the first definition:

(A) . . . "[U]nnecessary hardship" means that, owing to special conditions of the property that distinguish it from other properties in the area:
(i) No fair and substantial relationship exists between the general public purposes of the ordinance provision and the specific application of that provision to the property; and
(ii) The proposed use is a reasonable one.

RSA 674:33, I(b)(5)(A). "The statute provides that if an applicant is unable to satisfy the first definition of unnecessary hardship, then it may still obtain a variance if it satisfies the second definition." Harborside Assocs., 162 N.H. at 513; see RSA 674:33, I(b)(5)(B). Under the second definition:

[A]n unnecessary hardship will be deemed to exist if, and only if, owing to special conditions of the property that distinguish it from other properties in the area, the property cannot be used in strict conformance with the ordinance, and a variance is therefore necessary to enable a reasonable use of it.

RSA 674:33, I(b)(5)(B).

The petitioner contends that limiting him to one dwelling on his three-acre lot constitutes an unnecessary hardship because his lot is larger than neighboring lots. However, this fact alone does not establish unnecessary hardship under either test in RSA 674:33, I(b)(5). As the petitioner has not challenged the ZBA's findings with regard to the other requisites of the ...


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