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Rochester City Council v. Rochester Zoning Board of Adjustment

Supreme Court of New Hampshire

September 7, 2018


          Argued: April 12, 2018

          Terence M. O'Rourke, city attorney, of Rochester, by brief and orally, for the plaintiff.

          Donald F. Whittum Law Office PLLC, of Rochester (Donald F. Whittum on the memorandum of law and orally), for defendants Donald and Bonnie Toy.

          LYNN, C.J.

         The plaintiff, Rochester City Council, appeals an order of the Superior Court (Howard, J.) affirming defendant City of Rochester Zoning Board of Adjustment's grant of a variance to defendants Donald and Bonnie Toy.[1] On appeal, the plaintiff argues that the trial court: (1) erred in affirming the ZBA's decision to grant a variance to the Toys; and (2) unsustainably exercised its discretion in denying the plaintiff's motions to expand the record. We affirm.

         The pertinent facts are as follows. The Toys own a 14.5-acre manufactured housing park known as "Addison Estates" in Rochester. Addison Estates contains 25 approved lots, 15 of which are built and occupied. The Toys installed an on-site sewage disposal system in Addison Estates and provide "for maintenance of all of the private utilities within the subdivision."

         In April 2014, the Rochester City Council passed an updated zoning ordinance that eliminated manufactured housing parks as permitted uses anywhere in the city.

         In 2015, the Toys purchased a 22-acre lot (Lot 54-1) that abuts Addison Estates. In August 2016, they applied for a variance to expand their manufactured housing park onto Lot 54-1. See RSA 674:33, I(b) (2016) (amended 2018).

         The ZBA conducted a public hearing on the Toys' variance request on September 14, 2016. The plaintiff, through counsel, appeared at the hearing and opposed the variance. During the hearing, the Toys presented the following evidence. The southern edge of Lot 54-1 runs along Old Dover Road for a distance of approximately 74 feet. Lot 54-1 extends northerly 480 feet, while maintaining its width of approximately 74 feet, forming a "panhandle." Lot 54-1 then widens and narrows in various places over the course of the next approximately 2100 feet, ultimately bordering on Whitehouse Road for approximately 525 feet. The northern third of Lot 54-1 contains significant wetlands, and the wetlands and the challenging topography render the northern third of Lot 54-1 difficult to develop.

         Addison Estates abuts Lot 54-1 to the west. Most of the land to the northwest and east of Lot 54-1 is undeveloped. To the southeast, there is a small lot that contains a single family dwelling that is in the process of being razed. A mobile home park, Amazon Park, abuts Lot 54-1 on its northeasterly border. Another mobile home park is located in Somersworth approximately 565 feet east of Lot 54-1.

         The Toys proposed to construct a cul-de-sac originating at a point on Alexandria Lane in Addison Estates and extending into Lot 54-1. The proposed project would include 14 units, which would be serviced by private utilities and services, except for water. The water supply would connect to a main from Somersworth.

         The Toys stated that the existing manufactured housing units in Addison Estates were valued at between $150, 000 and $180, 000 each, and they estimated that the proposed 14 units would generate $75, 000 of annual tax revenue for Rochester. The Toys agreed to restrict ownership of the units in Lot 54-1 to persons aged 55 or older. They expected the age restriction to limit the likelihood that school-age children would live in the development, thereby minimizing the potential impact on city services.

         The ZBA granted the Toys' variance request. The ZBA's written decision did not explicitly address whether the Toys satisfied the unnecessary hardship requirement of RSA 674:33, I(b), but the ZBA did make brief findings supporting the other four statutory requirements.[2]

         In October 2016, the plaintiff filed a motion for rehearing, which the ZBA denied. Pursuant to RSA 677:4 (2016), the plaintiff appealed to the trial court, arguing that the ZBA granted a variance without finding hardship, in contravention of RSA 674:33, I(b)(5). Before the court heard the appeal, the plaintiff filed two motions to expand the record. The first motion sought to introduce evidence of "conduct by the ZBA . . . that exist[s] outside of the official record," including evidence that: (1) the ZBA chairman spoke out against the 2014 zoning ordinance changes; (2) the ZBA chairman owns "mobile home parks" in Rochester and was "aggrieved" by the ordinance change; (3) the ZBA chairman attempted to change the ordinance; (4) the ZBA chairman is a longtime friend and associate of the Toys; and (5) the ZBA members discussed the merits of the plaintiff's motion for rehearing outside of an official meeting as defined by RSA 91-A:2-a (2013) (amended 2018). The second motion sought to introduce evidence that the ZBA chairman "stated that the only reason he voted to approve the variance granted to [the Toys] was because he was upset with the change to the Rochester Zoning Ordinance." The court denied both motions.

         In denying the plaintiff's motions, the court stated that "[w]hile it is within the discretion of the trial court to allow additional evidence beyond the certified record even though such evidence was not before the board, the purpose of the additional evidence is to assist the court in evaluating the action of the board where the record is incomplete." (Citations omitted.) The court found that the requested evidence "does not go to the issues that were before the ZBA," but rather is "evidence of [the ZBA chairman's] potential conflict of interest, bias, or improper conduct." Thus, the court ruled that the plaintiff was "attempting to introduce into the record an entirely new issue - one that was at no time raised in the proceedings below - and which does nothing to clarify, explain, or augment the record before the ZBA relating to the variance."

         The trial court observed that "conflict of interest or bias issues must be raised at the earliest possible time in order to allow the local board to address them." The court found that, although one statement that the ZBA chairman allegedly made was in February 2017, all of the other evidence that the plaintiff cited predated the September 2016 hearing. Moreover, the court noted that the plaintiff's attorney was present at the September 2016 hearing but did not "raise[] the issue with the ZBA, even though the minutes reflect that the Chair invited board members to identify any potential conflicts." The court determined that the plaintiff "clearly had knowledge of the grounds for recusal at the time it filed its motion for rehearing." Because "[t]he issue [was not] raised before the ZBA ...

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