Issued the following order:
The intervenor, Foundry Avenue Realty Trust, appeals an order of the superior court reversing a decision of the zoning board of adjustment (ZBA) for the respondent, the Town of Meredith (town), granting the intervenor a variance. The trial court agreed with the petitioner, the board of selectmen (BOS) for the town, that "because the ZBA did not specifically know what type of trade or repair would take place on the property, it did not have evidence upon which its decision on any of the five factors could be reasonably based." See RSA 674:33 (2008 & Supp. 2013) (amended 2013) (establishing five criteria for granting variances). We affirm.
The following facts are drawn from the record. On March 11, 2010, the ZBA granted the intervenor a variance allowing it to use the residentially zoned portion of its lot for "warehousing, light manufacturing, building trade or repair shop, and/or equipment and truck repair facility." The BOS appealed that grant to the superior court. See RSA 677:4 (Supp. 2013). The court found that the ZBA could not determine whether the statutory criteria for a variance were met without knowing the precise use to which the property would be put. See RSA 674:33. In particular, the court noted that the "parties offered no significant evidence or proof regarding whether the values of surrounding properties would be diminished." The court vacated the ZBA's decision to grant the variance and remanded the matter to the ZBA for proceedings consistent with its order. See RSA 677:11 (2008).
The intervenor then amended its application for a variance, limiting its proposed use to "building trade or repair shop." The ZBA held another hearing, at which it accepted evidence only on the diminution in value of surrounding properties. The intervenor's expert testified and submitted a report on the impact of the proposed variance on property values. The ZBA deliberated on all five statutory criteria and granted the variance. The BOS appealed, the superior court reversed the ZBA's decision, and the intervenor appealed to this court.
On appeal, the intervenor, with whose brief the ZBA joins, argues that the trial court erred when it: (1) "exceed[ed] the specific instructions given [to the intervenor] by the Court" in its previous order; (2) found that the permitted use – "building trade or repair shop" – was not specific enough "for the ZBA to sufficiently assess the proposed use in light of the five [variance] criteria"; and (3) found that "the conclusions by the [intervenor's] expert regarding diminution of value could not be reached without further specificity" regarding the proposed use.
We will uphold the trial 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). Our inquiry is not whether we would find as the trial court found, but rather whether the evidence before the court reasonably supports its findings. Bacon v. Town of Enfield, 150 N.H. 468, 471 (2004).
For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA 677:6 (2008). The trial court's review is not to determine whether it agrees with the ZBA's findings, but to determine whether there is evidence upon which they could have been reasonably based. Chester, 152 N.H. at 583.
The intervenor argues that the trial court exceeded the scope of its first order in its second order. See Kalil v. Town of Dummer Zoning Bd. of Adjustment, 155 N.H. 307, 312 (2007) (scope of remand to ZBA limited by the nature of error or issue identified by superior court). It asserts that the first order directed it "to specify the exact use, under the Meredith Zoning Ordinance" (emphasis in the original) that it sought, but that when it selected uses stated in the ordinance, the court again found those uses too imprecise to enable the ZBA to apply the statutory criteria. However, the trial court stated in its first order that "the ZBA's decision was unreasonable because it did not know the precise use sought by [the intervenor]. . . . Without knowing the exact use, the ZBA could not determine" whether the statutory criteria for a variance were met. Thus, the record does not support the intervenor's contention that the trial court directed it to select uses listed in the town's ordinance.
The intervenor's central argument is that the court erred when it determined that the proposed use – "building trade or repair shop" – was not precise enough to enable the ZBA to determine whether the five statutory criteria for a variance were met. The intervenor contends that the court "infringe[d] on the legislative authority granted to the town" by "requiring a level of specificity in the application which goes beyond that of the ordinance." However, the intervenor's argument ignores the fact that the five variance criteria that the ZBA must address are established by statute, rather than in the town zoning ordinance. See RSA 674:33. Accordingly, the burden on the applicant to address the particular characteristics of the specific proposed use arises independent of, and is not a function of, the uses that are specifically enumerated in the town ordinance.
In order to grant a variance, the ZBA is statutorily mandated to find that the five criteria are met. RSA 674:33. This responsibility cannot be delegated to the planning board. Cf. Tidd v. Town of Alton, 148 N.H. 424, 428 (2002) (concluding that when ZBA granted special exception in spite of serious traffic problems, relying on planning board and other state and local officials to solve problem, it unlawfully waived or varied conditions of zoning ordinance). On appeal, the trial court must determine whether there was evidence upon which the ZBA's findings could have been reasonably based. Bacon, 150 N.H. at 471. Here, the trial court concluded that there was not sufficient evidence because the stated use was imprecise. It stated:
Given the endless possibilities of types of trade and items that can be repaired, it is arguably impossible for the ZBA to reasonably grant the variance absent more specificity. The specific type of trade or equipment, machinery, or vehicles that will be involved necessarily changes the calculus of the five criteria. Thus, because the ZBA did not specifically know what type of trade or repair would take place on the property, it did not have evidence upon which its decision on any of the five factors could be reasonably based.
Based upon this record, we cannot say that the trial court's decision was unsupported by the evidence or erroneous as a matter of law. See Chester, 152 N.H. at 583.
The intervenor also contends that the court erred in finding that its expert's "report on the impact on surrounding properties also offers no evidence upon which the ZBA could reasonably find that values of surrounding properties will not be diminished." Again, our role is to determine whether the court's conclusion was unsupported by the evidence. See Chester, 152 N.H. at 583. The court agreed with the expert that traffic, noise, smoke, dust and contaminants from the proposed use could affect the value of surrounding properties. It then concluded that these impacts would vary significantly depending upon which of the various uses encompassed in "building trade or repair shop" was actually conducted on the property. Based on this record, we cannot say that the court's conclusion that the expert's report was insufficient to show no diminution in surrounding property values was unsupported by the evidence or erroneous as a matter of law.
In light of this order, we need not address the intervenor's arguments regarding the other statutory criteria for a variance. The remaining issues raised by the intervenor do not warrant extended ...