2004-126, LEONARD VIGEANT v. TOWN OF HUDSON

variance for a five - unit multifamily dwelling when the ZBA granted a use was reasonable; (3) concluding that the ZBA improperly denied an area satisfy; (2) failing to consider whether the “intensity” of the proposed project each requirement for a variance that the ZBA found the plaintiff failed to argues that the trial court erred in: (1) neglecting to independently address exception for a temporary encroachment into a wetland buffer zone. The Town Leonard Vigeant, from the road setback requirements and d enied a special Zoning Board of Adjustment (ZBA). The ZBA denied a variance to the plaintiff, an order of the Superior Court (Groff, J.) vacating a decision of the Hudson BRODERICK, C.J. The defe ndant, Town of Hudson (Town), appeals from

LeFevre on the brief and orally), for the defendant. Bossie, Kelly, Hodes, Buckley & Wilson, P.A., of Manchester (David E.

memorandum and orally), for the plaintiff. Prunier, Leonard & Prolman, P.A., of Nashua (Andrew A. Prolman on the

No. 2004 - 126 Hillsborough - southern judicial district

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.n h.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, Supreme Court Building, Conco rd, New Hampshire 03301, of any 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

land. Rather, they must show that the use for wh ich they seek a variance is show that the zoning ordinance deprives them of any reasonable use of the Newington, 145 N.H. 7 p. 2 27 (2001), recognizing that applicants “no longer must of unneces sary hardship adopted in Simplex Technologies v. Town of unlawful and unreasonable and must be set aside.” The court applied the test denial of the plaintiff’s request for a variance from the setback requirement “is Following a hearing and a view, the trial court found that the ZBA’s

and the plaintiff appealed to the s uperior court. impact on the value of surrounding properties. The ZBA denied a rehearing estate appraiser expressing the opinion that the development would have no The plaintiff filed a motion for rehearing, attaching a letter from a real

request for a wetlands special exception. contrary to the public interest. The ZBA also voted unanimously to deny the would be a diminution of surrounding property values and that it would be the spirit of the ordin ance, that there was no evidence of hardship, that there request for a variance on grounds that the application was not consistent with held on the plaintiff’s application. The ZBA voted unanimously to deny the buffer zone during construction. On February 13, p. 2 2003, a public hearing was exception to permit a temporary encroachment of ten feet into the wetlands construction to extend to within thirty feet of Windham Road and for a special The plaintiff applied for a variance from the fifty - foot setback to allow

of fifteen feet. setback from wetlands, the setback from Route 111 is actually fifty fee t instead maintain the drainage ditch. Because the zoning ordinance requires a fifty - foot boundary, which was created by drainage from Route 111 and failure to from Route 111. However, an area of wetlan ds is present along the southerly requires a fifty - foot setback from Windham Road and a fifteen - foot setback northerly and easterly boundaries by Windham Road. The zoning ordinance The land is bounded along its southerly boundary by Route 111 and along its 770 feet long by 1 p. 2 29 feet wide at its widest end, constituting about 1.6 acres. The parcel of land is a long, narrow, mostly rectangular lot approximately

permitted use in a Business District. Town’s zoning ordinance a s three or more attached dwelling units, are a property is zoned as a Business District. Multifamily dwellings, defined in the the individual units connected either by a garage or a screened porch. The multifamily dwelling to be constructed at 69 Windham Road in Hudson, with plaintiff filed an application with the ZBA for an area variance for a five - unit The following facts are supported by the record. In October p. 2 2002, the

structures were less than fifty feet from Windham Road. We affirm. variance for a two - family dwelling; and (4) considering that neighboring p. 3 3

479 (1995). when a view has been taken.” Husnander v. Town of Barnstead, 1 p. 3 39 N.H. 476, “[T]he findings of the trial c ourt are within its sound discretion, particularly whether the evidence before the court reasonably supports its findings. Id. inquiry is not whether we would find as the trial court found, but rather is leg ally erroneous. Bacon v. Town of Enfield, 150 N.H. 468, 471 (2004). Our the trial court’s decision on appeal unless it is not supported by the evidence or was unreasonable.” Simplex Technologies, 145 N.H. at 729. We will uphold of probabilities, based on the evidence before the court, that the ZBA’s decision “However, the trial court may set aside a ZBA decision if it finds by th e balance ZBA’s decision bears the burden of proof on appeal to the trial court. Id. lawful and reasonable. RSA 677:6 (1996). The party seeking to set aside the The trial court must treat all factual findin gs of the ZBA as prima facie

contrary to the public interest are not supported by any evidence. have been diminished, and that the granting of this variance is evidence of hardship, that the values of the surrounding properties not consistent with the spirit of the Ordinance, that th ere is no The Court finds that the Board’s findings that the application is

others. variance or the special exception would injure the public rights of restrictions on this property. There is no evidence that either the the general purposes of the zoning ordinance and these setback environment. No fair and substantial relationship exists between property considering the unique setting of the property in its requirements inter fere with the reasonable use of the petitioner’s [T]he street setback requirements and the buffer zone setback

The court concluded:

affected by the variance. was no evidence that the surrounding property values would be adversely similar relief from the setba ck requirements.” The court also found that there reasonable permitted use of this real estate would probably require at least permitted use which could be made of this parcel of real estate. Any des cription. The court stated: “It would be difficult to envision any reasonable that the lot is unique, not just in its setting, but in its very character and provide any basis to deny the variance request.” In addition, the court found impact on the residential neighborhood, the nature of its permitted use cannot permitted use for the property under existing zoning and that “[d]espite its The trial court noted that the proposed multifamily development is a

(Citation omitted.) reasonable considering the property’s unique setting in its environment.” p. 4 4

show that w ithout a variance the land would be valueless. Rather, “assuming Regarding the first factor, we explained that the landowner need not

pursue, other than an area variance. Boccia, 151 N.H. at 9 p. 4 4. can be achieved by some other method reasonably feasible for the applicant to conditions of the property; and (2) whether th e benefit sought by the applicant to enable the applicant’s proposed use of the property given the special factors that an applicant must satisfy: (1) whether an area variance is needed standard was appr opriate in the context of area variances, we adopted two Recognizing that a further modification of the unnecessary hardship

use not permitted by the ordinance.” Id. (quotation omitted). to a permitted use and does not alter the character of the district as much as a contrast, the area variance is a relaxation of one or mor e incidental limitations Bacon, 150 N.H. at p. 4 477 (Dalianis and Duggan, JJ., concurring specially). “In uses, use variances pose a greater threat to the integrity of a zoning scheme.” fundamental premise of zoning laws is the segregation of land according to undertake a use that the zoning ordinance prohibits. “Because the variances and area variances. A use variance allows the applicant to of Portsmouth, 151 N.H. 85, 90 - 92 (2004), distinguishing between use We further refined the unnecessary hardship standard in Boccia v. City

the public or private rights of others. Id. the specific restriction on the property; and (3) the variance would not injure rela tionship exists between the general purposes of the zoning ordinance and setting of the property in its environment; (2) no fair and substantial interferes with their reasonable use of the property, considering the unique hardship by proof that: (1) a zoning restriction as applied to their property use of their land, applicants for a variance coul d establish unnecessary 731 - 32. Rather than require a showing that an ordinance unduly restricts the rights against the necessity of zoning ordinances. See Simplex, 1 p. 4 45 N.H. at constitutional rights o f all landowners and to more properly balance those less restrictive test of unnecessary hardship to better safeguard the requirement had been the most difficult to meet. Accordingly, we adopted a In Simplex, we recognized that in seeking a variance, the hardship

unnecessary h ardship standard. decisions over the past several years, we have attempted to clarify the Ryan v. City of Manchester Zoning Board, 123 N.H. 170, 173 (1983). In diminish the value of surrounding properties. RSA 67 p. 4 4:33, I(b) (Supp. 2004); the ordinance; (4) substantial justice is done; and ( p. 5 5) the variance will not result in unnecessary hardship; (3) the variance is consistent with the spirit of exist such that a literal enforcement of the provisions of the ordinance will the variance will not be contrary to the public interest; (2) special conditions In order to receive a variance, an applicant must meet five criteria: (1) 5

be considered. See id. at 94 - 9 p. 5 5 (remanding case to determine whether there the landowner considering the relative expense of available alternatives must use without a variance. In making this determination, the financial b urden on way for the applicant to achieve what has been determined to be a reasonable Under the second factor of the Boccia test, there must be no reasonable

variance, given the property’s unique setting in its environment. build five multifamily dwelling units it is necessary to obtain a setback presumptively reasonable, the issue is whether the plaintiff has shown that to pr operty. Given that the proposed use in this case is permitted and thus not be denied because the ZBA disagrees with the proposed use of the appropriate for the neighborhood. If the use is allowed, an area variance may however, that multifamily housing was, of the permitted uses, the most establishment, a funeral home or a war ehouse. The plaintiff determined, example, an automotive service and repair station, a laundromat, a retail permissible uses in a Business District under the zoning ordinance include, for the plaintiff to build five units of multifamily housing on his property. Other Town’s applicable zoning ordinance. In the case before us, it is permissible for proposed project is presumed to be reasonable if it is a permitted use under the proposed use must be reasonable. When an area variance is sought, the We hold that it is implicit under the first factor of the Boccia test that the

multifamily housing than what the applicant is proposing. accept an alternative use for the property, such as building fewer units of whether the ZBA can require an ap plicant to agree to a different variance or applicant to pursue, other than an area variance, the plaintiff questions applicant can be achieved by some method reasonably feasible for the into account. As to the second factor, whether the benefit sought by the Town questions whether the reasonableness of the proposed use is to be taken proposed use of the property given the special conditions of the property, the the first factor, whether an area variance is needed to enable the applicant’s Boccia unnecessary hardship factors to this area va riance application. As to Both parties in the case before us request guidance in applying the

rendered valueless or incapable of producing a reasonable return.” Id. is not, however, required to show that “without the variance the land will be adverse effect amounting to more than mere inconvenience.” Id. The applicant undue financial burden on the landowner” is determined by a “showing of an variances.” Id. at 93. “[W]hether an area variance is required to avoid an method or methods of effectuating the proposed use without the need for the second factor, the question is “whether there is a reasonably feasible practical perspective to implement the proposed plan.” Id. at 92. Regarding or other restrictions, then the area variances might be necessary from a the property make it difficult or impossible to comply with applicable setbacks that the landowner’s plans are for a permitted use, but special conditions of p. 6 6

NADEA U, DALIANIS and DUGGAN, JJ., concurred.

written order reveals that the court did address each of the applicable criteria. failed to satisfy, we reject this position. A complete reading of the court’s a ddress each requirement for a variance which the ZBA found the plaintiff Although the Town argues that the trial court neglected to independently

plan. Id. at 92. practical standpoint, an area variance is necessary to implement the proposed property make it impossible to comply with the setback requirements. From a plaintiff’s proposed use is a permitted use and that special conditions of the the plaintiff to achieve the permitted use without a variance. We hold that the The evidence supports the conclusion that there is no reasonable way for

use which could be made of t his parcel of real estate.” the court concluded, “It would be difficult to envision any reasonable permitted feet in width and less than 200 feet in length which could be developed.” As “there wo uld be an area of only approximately twenty (20) to twenty - five (25) Windham Road and the wetlands buffer zone, the trial court recognized that but in its very character and description.” Because of the setback from The trial court found that the plaintiff’s lot “is unique, not just in its setting, necessary to obtain a setback variance to build five multifamily dw elling units. has shown that, given the property’s unique setting in its environment, it is satisfied the two Boccia hardship criteria for an area variance. The plaintiff Based upon the trial court’s findings, we c onclude that the plaintiff has

presented in opposition to applicant’s proposed 100 - room hotel). proposed is not material. See id. at 95 (sixty - room hotel not viable alternative whether t he property can be used differently from what the applicant has was more suitable. In the context of an area variance, however, the question The ZBA focused upon whether an alternative use of fewer dwelling units

obviate need for area variances). hotel, such as unde rground parking or additional level to structure, that would were reasonably feasible alternative methods to implement proposed use of