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Perreault v. Town of New Hampton

Supreme Court of New Hampshire, Belknap

July 20, 2018

BRIAN M. PERREAULT & a.
v.
TOWN OF NEW HAMPTON

          Argued: January 18, 2018

          Alvin E. Nix, Jr., of Laconia, by brief and orally, for the plaintiffs.

          Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan on the brief and orally), for the defendant.

          HANTZ MARCONI, J.

         The plaintiffs, Brian M. and Margaret A. Perreault, appeal an order of the Superior Court (O'Neill, J.) upholding the denial of their requested variance by the Town of New Hampton Zoning Board of Adjustment (ZBA). We affirm.

         The record reflects the following facts. The plaintiffs own approximately 0.3 acres on the shore of Lake Waukewan in New Hampton. Per the town's zoning ordinance, the property is subject to a twenty-foot side yard setback and a thirty-five-foot front setback along the road. It is also subject to a fifty-foot setback along the lake shore pursuant to the Shoreland Water Quality Protection Act. See RSA 483-B:9, II(b) (2013). The property is sloped and contains a house, a deck, and three plastic, movable sheds used to store various home and recreational items. The plaintiffs sought to replace the plastic sheds with a ten-by-sixteen-foot permanent shed, which they planned to construct on the western side of the property. The proposed location of the permanent shed is approximately one foot from both the western abutting property line and an existing shed on the abutting property. The proposal, therefore, would have placed the permanent shed within the twenty-foot side setback. Accordingly, the plaintiffs sought a variance from the side setback requirement.

         The ZBA conducted four public hearings and two site visits during its evaluation of the plaintiffs' request for a variance. The ZBA received an e-mail from the western abutters supporting the plaintiffs' request, as well as a letter from the town fire chief confirming that the proposed location of the permanent shed did not pose safety concerns. The plaintiffs explained to the ZBA their reasons for choosing the proposed location, and acknowledged that there was a different, albeit less desirable, location on their property - outside of the twenty-foot setback - where they could build the permanent shed.

         The ZBA ultimately denied the plaintiffs' variance application. The ZBA found that the slope of the property was "not . . . egregious" compared to other lots in the same area, and that it was possible to build the permanent shed in a location that conformed to the setbacks. The ZBA also found that "[t]he spirit of the ordinance, in terms of wanting to control overbuilding, is important because allowing many sheds to be built on a small lot within those setbacks creates overcrowding and is contrary to the spirit of the ordinance."

         The plaintiffs requested a rehearing and submitted evidence of seven "similar" variances that the ZBA had granted for other lakeside lots. They also submitted evidence of sixteen other properties, all located on the same road as the plaintiffs' property, with storage buildings in locations that the plaintiffs asserted were in violation of the setback requirements. According to the plaintiffs, this evidence demonstrated that their proposed shed would not alter the essential character of the neighborhood or threaten the public health, safety, or welfare. The plaintiffs asserted that the ZBA's denial of their application was unreasonable given the comparable circumstances on other neighborhood properties.

         After granting a rehearing, receiving additional evidence, and conducting another site visit, the ZBA unanimously voted to deny the plaintiffs' request for a variance. The ZBA concluded that the other neighborhood properties and previous variances identified by the plaintiffs were distinguishable from the plaintiffs' circumstances. The ZBA also found that the plaintiffs failed to establish four of the five criteria required to grant a variance. See RSA 674:33, I(b)(1)-(5) (2016) (listing criteria); Nine A, LLC v. Town of Chesterfield, 157 N.H. 361, 365 (2008) (noting variance applicant bears burden of demonstrating criteria are met). Regarding the public interest and spirit of the ordinance criteria, the ZBA found that "[g]ranting the variance would be contrary to the public interest because the essential character of the neighborhood and the cumulative impact of granting this and similar variances to others in the neighborhood jeopardizes the goals of the setback requirements in the [z]oning [o]rdinance," which the ZBA identified as "prevent[ing] safety issues and[, ] in this case, overbuilding on lots." The ZBA also found that the plaintiffs had failed to meet the substantial justice and unnecessary hardship criteria.

         The plaintiffs appealed to the superior court, see RSA 677:4 (2016), which affirmed the ZBA's decision on the public interest, spirit of the ordinance, and substantial justice criteria. The superior court did not address the unnecessary hardship requirement.

         On appeal to this court, the plaintiffs argue that the superior court erred in upholding the ZBA's findings that granting the variance (1) would be contrary to the public interest and would violate the spirit of the zoning ordinance, and (2) would not do substantial justice. See RSA 674:33, I(b)(1)-(3). The plaintiffs further contend that the ZBA was compelled to find that literal enforcement of the ordinance would result in an unnecessary hardship. See RSA 674:33, I(b)(5).

         Judicial review in zoning cases is limited. Bartlett v. City of Manchester, 164 N.H. 634, 639 (2013). The superior court must treat all factual findings of the ZBA as prima facie lawful and reasonable, and may not set aside or vacate the ZBA's decision, except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that the decision is unreasonable. Id.; see RSA 677:6 (2016). The review by the superior court 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. Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743, 750 (2017). In turn, we will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Harborside Assocs. v. Parade Residence Hotel, 162 N.H. 508, 512 (2011).

         Under RSA 674:33, I(b), 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 ordinance would result in an unnecessary hardship." RSA 674:33, I(b)(1)-(5). The variance applicant bears the burden ...


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