2003-687, JOHN R. HARRINGTON & a v. TOWN OF WARNER

currently utilizes twenty - six acres of the property and consists of thirty - three Warner that is zoned as a medium density residential district (R - 2). The park record. Pleasant Lake Estates is located on a forty - six - acre parcel of land in The following facts were found b y the trial court or are evident from the

the ZBA’s decision. We affirm. (abutters), appeal from an order of the Superior Court (Smukler, J.) affirming The abutting landowners, petitioners John R. and Fernanda Harrington housing park, Pleasant Lake Estates, t o include twenty - five additional sites. Zoning Board of Adjustment (ZBA) to expand his current manufactured DUGGAN, J. Peter Wyman obtained a variance from the Town of Warner

the brief and orally), for the respondent. Gallagher, Callahan & Gartrell, P.A., of Concord (Donald E. Gartrell on

and orally), for the petitioners. Sulloway & Hollis, P.L.L.C., of Concord (Margaret H. Nelson on the brief

No. 20 03 - 687 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

decision bears the burden of proof on appeal to the trial court. Id. We will Dover, 149 N.H. 178, 180 ( p. 2 2003). The party seeking to set aside the ZBA’s evidence before it, that the ZBA’s decision is unreasonable. Duffy v. City of unless the court is persuaded, based upon a balance of probabilities, on the and reasonable, and will not be set aside by the trial court absent errors of law, 291, 292 (2001). The factual findings of the ZBA are deemed prima facie lawful Our review in zoning cases is limit ed. Hill v. Town of Chester, 146 N.H.

granting the variance. ordinance; and (5) failed to show that substantial justice would be done in show that the variance did not derogate from the intent or purpose of the that the variance was consistent wit h the spirit of the ordinance; (4) failed to the zoning restrictions preceded his purchase of the property; (3) failed to show unnecessary hardship; ( p. 2 2) created any financial hardship he suffered because variance. Spe cifically, the abutters argue that Wyman: (1) failed to show decision to grant the variance because Wyman failed to satisfy the criteria for a The abutters argue that the trial court erred in affirming the ZBA’s

I. Variance Criteria

establish ing the criteria necessary for a variance. This appeal followed. reasonably and lawfully in concluding that Wyman met his burden of decision. Following a hearing, the trial court ruled that the ZBA acted added at the rate of five lots per year. The abutters appealed the ZBA’s the variance but limited the expansion to tw enty - five additional sites to be Following two public meetings and a site walk, the ZBA voted to grant

uncertain whether his proposal was permitted under the zoning ordinance. variance f or the expansion because the respondent Town of Warner (Town) was Warner, N.H., Zoning Ordinance art. XIII, § E(1) ( p. 2 2002). Wyman sought a

space on individual sites. not include wetlands, water bodies, roads, severe slopes or open maximum number of sites shall not exceed p. 2 25. Housing sites shall consist of a minimum of 10 acres and at least two (2) sites. The but the commercial district (C1) and Business district (B1) and Where Allowed: Manufactured housing parks shall be allowed in all

provides: Warner ’s zoning ordinance pertains to manufactured housing parks and homes on the remaining twenty acres of the property. Article XIII, section E of expand Pleasant Lake Estates by adding twenty - six additional manufactured manufactured homes and fifty - four campground sites. Wyman sought to p. 3 3

area or use variance. See Boccia, 151 N.H. at 91 - 92. matter, we must determine whether the variance sought by Wyman was an the public or private rights of others. Id. at 7 p. 3 31 - 32. Thus, as a threshold the specific restriction on the property; and (3) the variance would not injure relationship exists between the general purposes of the zoning ordinance and unique setting of t he property in its environment; (2) no fair and substantial interferes with the applicant’s reasonable use of the property, considering the variance, an applicant must show that: (1) the zoning restriction as applied Technologies, 145 N.H. at 728. To establish unnecessary hardship for a use variance to operate commercial businesses in an industrial zone. Simp lex applies. See Boccia, 151 N.H. at 92. In Simplex, the applicant sought a use in Simplex Technologies v. Town of Newington, 145 N.H. 727, 728 (2001), When, however, an applicant seeks a u se variance, the standard set forth

than an area variance. Id. at 92. by some other method reasonably feasible for the applicant to pursue, other property; and (2) whether the benefit sought by the applicant can be achieved applicant’s proposed use of the property given the special conditions of the hardship calculation: (1) whether an area variance is needed to enable the seeks an area variance, the following factors should be considered in the applicant establishe d unnecessary hardship. We held that, when an applicant distinguished between use and area variances when determining whether an In Boccia v. City of Portsmouth, 151 N.H. 85, 91 - 92 (2004), we

attempted to clarify the unnecessary hardship standard. his burden of showing unneces sary hardship. Our recent decisions have ruling that the ZBA acted lawfully and reasonably in finding that Wyman met We first address the abutters’ argument that the trial court erred in

A. Unnecessary hardship

674: p. 3 33, I(b). properties. Shopland v. Town of Enfiel d, 151 N.H. 219, 222 (2004); see RSA and (5) granting the variance will not diminish the value of surrounding is consistent with the spirit of the ordinance; (4) substantial justice is done; enforcement of t he ordinance results in unnecessary hardship; (3) the variance contrary to the public interest; (2) special conditions exist such that literal landowner bears the burden of showing that: (1) the variance will not be Manchester Zoning Board, 123 N.H. 170, 173 (1983). To obtain a variance, a five - part test for the granting of variances. See, e.g., Ryan v. City of Our cases interpreting RSA 674:33, I(b) (1996) have long recognized a

evidence or is legally erroneous. Id. uphold the trial court’s decision on appeal unless it is not supported by the p. 4 4

ten acres in size or larger. This interpretation is supported by another section of manufactured housing sites in a park at twenty - five for any p arcel of land The plain language of the ordinance appears to fix the maximum number

exceed 25.” Warner, N.H., Zoning Ordinance art. XIII, § E(1). of 10 acres and at lea st two (2) sites. The maximum number of sites shall not commercial district (C1) and Business district (B1) and consist of a minimum provides that manufactured housing parks “shall be allowed in all but the As set forth above, article XIII, section E of the Town’s zoning ordinance

see fit to include. Id. drafters of the ordinance might have intended, or add words that they did not indications of legislative intent. Id. Moreover, we will not guess what the unambiguous, we need not look beyond the ordinance itself for further usage of the language. Id. When the language of an ordinance is plain and an ordinance should be construed according to the common and approved statutory construction generally govern our review, the words and phrases of review de novo. Duffy, 1 p. 4 49 N.H. at 181. Because the traditional rules of The interpretation of a zoning ordinance is a question of law, which we

the Town’s zoning ordinance to determine the purpose of the zoning restriction. restriction a t issue. Accordingly, to resolve this question, we must interpret determination based upon the language and purpose of the particular zoning Whether the variance sought is an area or use variance requires a case - by - case otherwise permitted use, it is an area restriction. See Boccia, 151 N.H. at 90. If the purpose of the restriction is to place incidental physical limitations on an Rathkopf, Rathkopf’s The Law of Zoning and Planning § 58: p. 4 4, at 58 - 17 (2004). surrounding area and is thus a use restriction. See 3 A. H. Rathkopf & D. A. purpose of the particular zoning restriction is to preserv e the character of the The critical distinction between area and use variances is whether the

Bacon, 150 N.H. at p. 4 477 (Duggan and Dalianis, JJ., concurring specially). the surrounding area as much as a use not permitted by the ordinance. size restrictions. Id. As such, an area variance does not alter the character of standards such as setbacks, frontage requirements, height limitations and lot b ut grants the landowner an exception from strict compliance with physical variance, an area variance involves a use permitted by the zoning ordinance characteristics of the lot. Boccia, 151 N.H. at 90. In contrast to a use An area variance is generally made necessary by the physical

1 p. 5 50 N.H. p. 4 468, 477 (2004) (Duggan and Dalianis, JJ., concurring specially). laws is the segregation of land according to uses. Bacon v. Town of Enfield, to the integrity of a zoning scheme because the fundamental premise of zoning the zoning ordina nce prohibits. Id. at 90. Use variances pose a greater threat A use variance allows the landowner to engage in a use of the land that 5

See, e.g., Hill, 146 N.H. at 293. (2003). A number of nondispositive factors are encompassed within this prong. established. S ee, e.g., Rancourt v. City of Manchester, 149 N.H. p. 5 51, 53 - 54 is the critical inquiry for determining whether unnecessary hardship has been cases since Simplex have emphasized, the first prong of the Simplex standa rd three - prong standard set forth in Simplex. See Boccia, 151 N.H. at 94. As our hardship prong of the variance test is applied to use variances, we apply the (Duggan and Dalianis, JJ., concurring). Accordingl y, when the unnecessary of the potential impact on the overall zoning scheme. Bacon, 150 N.H. at 477 variance requires a greater showing of hardship than an area variance because turn to the appropriate stan dard for unnecessary hardship. Generally, a use Having concluded that the variance at issue is a use variance, we now

twenty - five is a use restriction. ordinance, we conclude that the provision limiting the number of sites to of the use. Accordingl y, given the language and purpose of the zoning reveals an intent to segregate land by both the types of uses and the intensity restricting a more intensive use of land. Thus, the overall zoning scheme density district, thereby preserving the character of the neighborhood by ordinance is more restrictive with regard to two - family dwellings in the low allowed in the low density district by special exception. Id. The zoning density residential districts. Id. tbl. 1. A two - family dwelling, however, is only districts, a two - family dwelling is a permitted use in the village and medium residential districts: village, medium density and low density. Id. Within these use. Warner, N.H., Zoning Ordinance art. II. For instance, there are three Moreover, Warner’s overall zonin g scheme segregates land by intensity of

the area. restriction limits the intensity of the use in order to preserve the character of related to the acreage or other physical attributes of the property. Rather, the restriction, the limitation on th e number of manufactured housing sites is not regardless of the number of acres within the park. Thus, unlike an area limits the number of sites allowed to twenty - five. This limitation applies subdivision provision, the manufactured housing park provision expressly ordinance is unambiguous. See Duffy, 149 N.H. at 181. Similar to the Considering the language of these similar provisions, we hold that the

subdivision is limited to twenty - five, regardless of the underlying acreage. express terms of this ordinance, the size of a manufactured housing subdivision shall not exceed 2 p. 5 5.” Id. at § F(0), (2) (emphasis added). By the twelve acres, and “[t]he maximum number of lots in any manufactured housing XIII, § F. Under that section, a subdivision must consist of a minimum of with essentially identical language. See Warner, N.H., Zoning Ordinance art. of the zoning ordinance, which regulates manufactured housing subdivisions p. 6 6

reasons: (1) t he twenty acres would be “totally unusable” without the variance; that the variance to expand the mobile home park was necessary for two regarding unnecessary hardship. In his variance application, Wyman stated In this case, the following evidence was introduced before the ZBA

and Dalianis, JJ., concurring specially). central to the analysis of a use variance. See Bacon, 150 N.H. at 477 (Duggan land according to uses, the impact on the character of the neighborhood is Indeed, because the fundamental premise of zoning laws is the segregation of the essential character of the neighborhood. Matthew, 707 S.W.2d a t 417. Id. This includes evaluating whether the landowner’s proposed use would alter Finally, Simplex requires consideration of the surrounding environment.

N.H. at 731. of specific conditions of the property and not the area in gen eral. Simplex, 145 723, 72 p. 6 6 (1995). Thus, the landowner must show that the hardship is a result individual plight of the landowner. Olszak v. Town of New Hampton, 139 N.H. In addition, the burden must ar ise from the property and not from the property are compensated for by similar restrictions on neighboring property.”). (“This degree of hardship is implicit in zoning; the restrictions on each parcel of burden on all prope rty in the district. See Rathkopf, supra § 58:5, at 58 - 18 Rather, the burden cannot arise as a result of the zoning ordinance’s equal however, require that the property be the only such burdened property. N.H. at 478 (Duggan and Dalianis, JJ., concurring specially). It does not, manner that is distinct from other similarly situated property. Bacon, 150 factor requires that the property be burdened by the zoning restriction in a result of the unique setting of the property. Simplex, 145 N.H. at 731. This Next, Simplex requires a determ ination of whether the hardship is a

evidence of original cost, current market value and decline in value). S.W.2d at 41 p. 7 7; see, e.g., Carter v. Derry, 113 N.H. 1, 4 (1973) (considering actual p roof, often in the form of dollars and cents evidence.” Matthew, 707 concerning the lack of . . . reasonable return is not sufficient; there must be enjoy property.” Id. at 731. Nevertheless, “mere conclusory and lay opinion enunciated in Simplex, of being “more considerate of the constitutional right to 731 - 32. Rather, this factor should be applied consistent with our sound policy, has been deprived of all beneficial use of the land. See Simplex, 145 N.H. at This factor, however, does not require the landowner to show that he or she this factor requires more than a “mere inconvenience,” Boccia, 151 N.H. at 93. “[r]easonable return is not maximum return,” id. at 417 (quotation omitted), Matthew v. Smith, 707 S.W.2d 411, 41 p. 6 6 (Mo. 1986) (en banc). Although landowner’s ability t o receive a reasonable return on his or her investment. Simplex, 145 N.H. at 731. This factor includes consideration of the as applied interferes with a landowner’s reasonable use of the property. First, Simplex requires a determination of whether the zoning restriction 7

evaluating the reasonable use of the property. In addition, if Wyman had use in the R - 2 zone. This fact is entitled to considerable weight when si gnificant to our analysis is that manufactured housing parks are a permitted restriction interferes with Wyman’s reasonable use of the property. Most We first look to the evidence supporting the conclusion that the zoning

evidence in the record supports the trial court’s decision. variance merely to avoid a negati ve financial impact on the landowner), other at 58 - 2 p. 7 7 to 58 - 28 (recognizing that zoning boards and courts will not grant a 93 (requiring more than mere inconvenience); see also Rathkopf, supra § 58:5, owner” does n ot warrant the granting of a use variance, see Boccia, 151 N.H. at without the variance, he might have to let the property “go back to the previous unnecessary hardship. Although Wyman’s unsupported conclusion that, ZBA acted reasonably in finding that Wyman met his burden of proving Here, sufficient evidence supports the trial court’s determination that the

findings. See Bacon, 150 N.H. at 4 p. 7 71. but rather whether the evidence before the court reasonably supports its 441 (1991). Our inquiry is not whether we would find as the trial court found, do not act as a super zoning board. Britton v. Town of Chester, 134 N. H. 434, In applying the Simplex standard to these facts, we are mindful that we

previous owner.” that I would have to let [the manufactured housing park] go back to the hardship, Wyman stated that, “Without [the variance], t here is a good chance each of the five requirements for a variance. With regard to unnecessary second public meeting, Wyman was asked to answer specifically how he met increased traffic in an al ready congested area. Prior to the conclusion of the brought to the ZBA’s attention included additional children in the schools and that it would be a place where people want to live. Negative impacts that were woul d provide more affordable housing and make the park more attractive so question regarding the impact on the area, Wyman stated that the variance still not have enough road frontage to subdivide the property. In response to a Nonetheless, because the private road would not be a town road, Wyman would the park and that these improvements would “meet some of the town specs.” also stated that he would be improving the private road that currently serves campground, the current mobile home park area and swamp land. Wyman and building a r oad was “almost impossible” due to the location of the unable to subdivide the property because there was inadequate road frontage reasons stated in his application. In addition, Wyman stated that he was hardship. Wyman reiterated that the variance was necessary for the two The minutes of two public hearings reflect the foll owing evidence of

provide affordable housing and keep the community clean. and (2) expanding the park would allow for additional income so that he could p. 8 8

at 5 p. 8 8 - 135. landowner can introduce evidence of good faith. See Rathkopf, supra § 58:21 landowner had actual or constructi ve knowledge of the zoning restrictions, the To counter the fact that the hardship was self - created because the

Id. at 293. be considered under the first prong of the hardship test set forth in Simplex. variance. Id. Rath er, “purchase with knowledge” is a nondispositive factor to self - created hardship does not preclude the landowner from obtaining a restrictions entail.” Id. at 294 (quotation omitted). Nonetheless, we held that a purchase, is said to have created for himself whatever hardship such or constructive, of the zoning restrictions which are in effect at the t ime of such their property” and that “[a] person who purchases land with knowledge, actual are deemed to have constructive notice of the zoning restrictions applicable to unnecessary hardship. Hill, 146 N.H. at 293. We rec ognized that “landowners knowledge of zoning restrictions has on an applicant’s ability to demonstrate In Hill v. Town of Chester, we addressed the effect a purchase with

special circumstances. We disagree. Wyman’s purchase of the property, he is not entitled to a variance absent Next, the abutters argue that because the zoning restrictions preceded

B. Self - created hardship

finding that Wyman met his burden of proving unnecessary hardship. the trial court did not err in concluding that the ZBA acted reasonably in schools. Moreover, no evidence to the contrary was introduced. Accordingly, the expansion to five new lots per year in order to lessen the impact on the would not adversely affect the character of the area. Notably, the ZBA limited granting the variance, the ZBA implicitly found that the expansion of the park reviving an undesirable area of town. The ZBA also conducted a site walk. In increase d traffic, the availability of affordable housing, and the potential of have on the character of the area, including the impact on the schools, Finally, the ZBA considered the impact such a large expansion would

services the park would not remedy the inadequacy in road frontage. presence of swamp lands; and (3) the im provements to the private road that current location of the campground, the existing mobile home park and the that would provide adequate frontage is “almost impossible” because of the subdivide because he has insufficient road frontage; (2) constructing a road result of unique conditions of his property includes: (1) Wyman is unable to Next, the evidence supporting the conclusion that the hardship is a

acreage for a manufactured housing park on the new lot. adequate road frontage to subdivi de his property, he would have sufficient p. 9 9

expansion. subdivide, he would have sufficient minimum acreage for the proposed area, the variance would not change the use of the area and, were he able to permitted use under the ordinance, the mobile home park already exists in the from the intent or purpose of the ordinance because mobile home parks are a variance was not contrary to the spirit of the ordinance and did not de tract evidence supports these rulings. At the hearings, Wyman showed that the Based upon the record of the ZBA hearings, we conclude that sufficient

justice would be done in granting the variance. We disagree. not detract from the intent or purpose of the ordinance and that substantial showing that the variance was consistent with the spirit of the ordinance, did acted lawfully and reasonably in finding that Wyman met his burden of Next, the abutters argue that the trial court erred in ruling that th e ZBA

C. Other variance criteria

of Simplex is satisfied by the evidence of his good faith. actual or constructive knowledge of the zoning restriction under the first prong 2 p. 9 93. Accordingly, any heightened scrutiny that is warrant ed by Wyman’s create the hardship because of his “failure to plan properly.” Hill, 146 N.H. at following the zoning ordinance and in seeking a variance. Wyman did not The record unequivocally est ablishes that Wyman acted in good faith in

variance for the proposed expansion. the provision was an absolute maximum and thus advised Wyman to seek a whether the provision allowed twenty - five sites per ten acres of land or whether to a maximum of twenty - five sites wi th the ZBA. The ZBA was uncertain addition, Wyman raised the issue of the provision limiting mobile home parks to compliance with building ordinances and planning board approval. In purcha sing the property that the mobile home park could be expanded, subject Here, Wyman was advised by a letter from the town selectmen prior to

Id.; see also Badish v. O’Regan, 212 N.Y.S.2d 632, 634 - 35 (Sup. Ct. 1 p. 9 961).

land that he purchased. constructive knowledge of a requirement, violation, or limitation on authorities or builders; or showing that the owner had no ac tual or showing that the owner had relied on the representations of zoning alternatives to relieve his hardship prior to requesting a variance; o rdinance; showing that the owner has attempted to use other owner has complied with the rules and procedures of the Good faith can be established in several ways: showing that the p. 10 10

factors, the ZBA’s decision was both reasonable and lawful. concluded that because the record supports the findings on all the pertinent presented on each of the requirements for a variance. The court then order reviewed the minutes of the ZBA’s meetings and discussed the evidence facts, the standard of revie w and the applicable law for granting variances. The Here, the trial court made a narrative order setting forth the relevant

ellipses omitted). Magrauth v. Magrauth, 136 N.H. 757, 760 (1993) (quotation, brackets and

of law may be likewise explained. This may be done in the narrative form, and the essential rulings essential facts that are sufficient to support the ultimate decision. a party, but the court is obligated to make findings of the basic or a case need not respond expressly to every specific request filed by rulings in jury - waived and non - jury cases. The trial judge i n such request them, RSA 491:15 requires a statement of facts and legal decree unless a party asks for them, when either party does under no obligation to make findings and rulings in support of a although a superior court justice sitting without a jury is gener ally

that which shall be filed and recorded.” In interpreting RSA 491:15, we have held give his decision in writing, stating the facts found and his rulings of law, RSA 491:15 provides: “The court . . . shall, if either party requests it,

critical legal and factual issues in its narrative order. We disagree. court failed to rule on the proposed findings and rulings and failed to address under RSA 491:15 (19 97), the trial court’s order was inadequate because the basis for appellate review of its decision. Specifically, the abutters argue that, Next, the abutters argue that the trial court failed to provide an adequate

II. Adequate Record

that substant ial justice would be done in granting the variance. the ordinance, did not detract from the intent or purpose of the ordinance and met his burden of proving that the variance was consistent with the spirit of concluding that the ZBA acted lawfully and reasonably in finding that Wyman will have upgraded septic systems. Accordingly, the trial court did n ot err in surrounded by a tree buffer, will only allow the use of newer mobile homes and of the lots will meet the minimum size and setback requirements, will be provide affordable housing in the area. Speci fically, Wyman explained that all granting the variance because it would improve a dilapidated area of town and In addition, Wyman showed that substantial justice would be done in p. 11 11

concurred. BRODERICK, C.J., and NADEAU, DALIANIS and GALWAY, JJ.,

appellate review of its d ecision. Id. Accordingly, the trial court did not fail to provide an adequate basis for judge . . . need not respond expressly to every specific request filed by a party.” trial court did no t rule on the abutters’ proposed findings and rulings, “the trial essential rulings of law to support the ultimate decision. See id. Although the The trial court’s order sets forth both sufficient findings of fact and