2005-687, MICHELLE J. ROBINSON v. TOWN OF HUDSON

The petitioner, Michelle J. Robinson, appeals the order of

LeFevre on the brief and orally), for the respondent. Hodes, Buckley, McGrath & LeFevre, P.A., of Manchester (David E.

to press. Errors may be reported by E-mail at the following address: Denis O. Robinson, of Bedford, on the brief and orally, for the petitioner.

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2005-687 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as of Deeds.

p. 2 liability has been recorded in the Hillsborough County Registry evidence that notice of the limits of municipal responsibility and

resulting from the use of Mark Street. Prior to the issuance of a

for rehearing. lawfulness of the first and the fourth conditions. The ZBA denied the motion The petitioner filed a motion for rehearing in which she challenged the

Mark Street [Extension].

maintenance of Mark Street, nor liability for any damages 4. The Town of Hudson neither assumes responsibility for on the plan of land . . . . 3. The house shall be set back 30 feet from Mark Street, as shown Environmental Services]. or approval from [the New Hampshire Department of record shall furnish a septic approval permit or similar permit 2. Prior to the issuance of a building permit, the property owner of

of record shall pay a pro rata share of the cost of constructing the property. 1. If and when Mark Street [Extension] is built, the property owner

required 150 feet of frontage on Wason Road, the only existing road abutting was told that a variance would be necessary because the lot lacked the grant the petitioner’s variance with the following conditions: petitioner’s variance application. After much discussion, the ZBA voted to The ZBA held a public hearing on December 9, 2004, to consider the determinations” to the Town’s building inspector. decision and remanded the case to the ZBA for a de novo hearing. proceedings. Id. at 259. On remand, the superior court vacated the ZBA’s Id. We reversed the superior court’s dismissal and remanded for further Id. The petitioner appealed to the superior court, which dismissed the appeal. variance from the frontage requirement. Id. The ZBA denied the application.

Id. The petitioner thereafter submitted an application for a

partially utilize the Mark Street Extension to gain access to Wason Road. She construct a single-family residence on the property, with a driveway that would

In July 2000, the petitioner submitted a request for “zoning

approximately fifty feet of frontage on Wason Road. Id. lots have frontage on actual, paved streets. Id. The petitioner’s lot has often refer to Mark Street Extension as a “paper street.” Only two of the six was roughed out and graded but never paved. Id. Consequently, the parties via the Mark Street Extension to Wason Road. Id. The Mark Street Extension p. 3 Extension. was intended to encourage the lot owners to build Mark Street share for construction of the road. The imposition of this condition

by requiring the owner of the [s]ubject [p]roperty to pay a pro rata

street” by all of the lot owners. The ZBA resolved the safety issue 3 similar” to one of the conditions upheld in safety concerns about the use of the driveway and the “paper unfinished “paper street” that leads to their lots. The ZBA had

unreasonable.

court stated: concluded that the condition was “neither unreasonable nor arbitrary.” The petitioner’s other arguments pertaining to the cost condition, the court

condition was lawful, and pointed out that the fourth condition is “remarkably receives the variance.” Further, the superior court concluded that the liability would be able to use the petitioner’s driveway to access the of construction of the road relates to the land and not to the person who reasonable. RSA 677:6 (1996). It may set aside a ZBA decision if it finds by trial court must treat all factual findings of the ZBA as prima facie lawful and land; and (4) the fourth condition, referred to as the “liability condition,” is & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005). For its part, the because it applies to the owner of the land and does not relate to the use of the unless the evidence does not support it or it is legally erroneous. Chester Rod Extension; (3) the ZBA exceeded its authority in imposing the cost condition Warner, 152 N.H. 74, 77 (2005). We will uphold the trial court’s decision Our review of zoning board decisions is limited. Harrington v. Town of

112 N.H. 21, 28 (1972). The petitioner appealed. address it in her motion for rehearing before the ZBA. With respect to the Wentworth Hotel, Inc. v. New Castle,

way of a completed Mark Street Extension, the other lot owners The court found that “the requirement that the lot owner pay its pro rata share Extension never be constructed. Instead of accessing their lots by concerned about potential safety issues should Mark Street

only lot owner required to contribute to the cost of developing Mark Street

petitioner’s first argument was not preserved for appeal because she did not

A review of the ZBA minutes makes it clear that the ZBA was

property; (2) the cost condition is unreasonable because the petitioner is the that make it impossible to ascertain the future liability of the owner of the because the terms “pro rata share,” “cost” and “built” are all undefined terms

The superior court affirmed the ZBA’s decision. The court found that the

condition, referred to as the “cost condition,” is arbitrary and unreasonable The petitioner appealed to the superior court, arguing that: (1) the first grounds. p. 4 rehearing, it was proper for the superior court to refuse to consider it. cause shown shall allow the appellant to specify additional or given any consideration by a court unless the court for good

Town contends that since she did not include this argument in her motion for did not understand the cost condition or that she believed it was vague. The no ground not set forth in the application shall be urged, relied on, asserts that the petitioner never claimed in her motion for rehearing that she

rehearing . . . and, when such application shall have been made, would purchase or finance the Lot for residential construction.” The Town

provides that a party may not appeal a zoning board decision:

review. Id. the following with respect to the cost condition:

would purchase or finance the Lot for residential construction. burdened by this contingent penalty, and no reasonable person unless the appellant shall have made application for alleging that the cost condition was a “penalty,” and that “no reasonable person approximately nine hundred feet long. As such, the Lot will be

decision or order complained of is unlawful or unreasonable.” It further board “shall set forth fully every ground upon which it is claimed that the lacks specificity, and thus is sufficient to preserve the issue for superior court RSA 677:3, I (1996) requires that a motion for rehearing to a zoning rehearing before the ZBA. In her motion for rehearing, the petitioner alleged imprecise or lacking in detail, her motion does indicate that the cost condition motion for rehearing does not state each and every way the cost condition is

The Town argues that in her motion for rehearing, the petitioner was penalty against the Lot owner, where Mark Street Extension is

concerning the cost condition because she did not raise it in her motion for superior court erred by refusing to consider her vagueness argument The petitioner focuses on the word “unspecified,” and argues that although her arguments she raised in the superior court. First we address whether the

Condition 1 imposes a substantial but unspecified contingent

The petitioner’s arguments on appeal are virtually identical to the

decision was unreasonable. Chester Rod & Gun Club, 152 N.H. at 580. the balance of probabilities, based upon the evidence before it, that the ZBA’s time on appeal to the superior court. p. 5 did not do so. Instead, she impermissibly raised this argument for the first specific terms “pro rata,” “built” and “cost” are vague and undefined, yet she

have been simple for the petitioner to clearly articulate her position that the

ordinance.

the board of adjustment to impose conditions, such authority may be inferred and thus the condition functions as a penalty against the lot owner. It would person would purchase or finance the property for residential construction, permit. of constructing Mark Street Extension is presently unknown, no reasonable

reasonable conditions where they are necessary to preserve the spirit of the

it, and, likewise, we refuse to address it here. preserved for appeal. It was proper for the superior court to decline to consider some specific provision of the enabling statutes or the ordinance empowering Anderson’s American Law of Zoning § 20.63, at 636 (4th ed. 1996) (“Absent 463 (1958); Wentworth Hotel, Inc., 112 N.H. at 27; see also 3 K. Young, that were raised in their motion for reconsideration of the ZBA’s denial of their the petitioner’s argument in her motion for rehearing was that because the cost See Vlahos Realty Co. v. Little Boar’s Head District, 101 N.H. 460,

previously held that a board’s extensive powers include the authority to attach zoning board to place conditions on the granting of a variance, we have cost condition. While there is no express statutory provision permitting a We now turn to the petitioner’s remaining arguments pertaining to the

her vagueness argument in her motion for rehearing, the argument was not

See Colla, 153 N.H. at 207. Here, because the plaintiff did not raise

appeal the plaintiffs submitted to the superior court the identical questions arguing that the specific terms used in the condition are vague. The thrust of This case is distinguishable from Colla v. Town of Hanover, where on

otherwise. grounds in a later appeal unless the court for good cause shown orders

requirements of RSA 677:3. must put the zoning board on notice of an alleged error in order to satisfy the unspecified contingent penalty against the lot owner” is not the same as petitioner’s position, arguing that the condition imposes a “substantial but her claim that the terms of the cost condition were vague. Contrary to the We conclude that the petitioner’s motion for rehearing does not set forth

Blagbrough, 153 N.H. at 239.

with respect to the ZBA’s decision on the merits, the party may not raise those 09 (2006). If a timely motion for rehearing fails to set forth all alleged errors

N.H. 234, 238-39 (2006) (quotation omitted). Thus, a motion for rehearing hearing the appeal.” Blagbrough Family Realty Trust v. Town of Wilton, 153 decisions so that the court may have the benefit of the board’s judgment in should have the first opportunity to pass upon any alleged errors in its “The statutory scheme is based upon the principle that the local board subdivision and eliminate their nonconformity. p. 6 Extension. be arbitrary or unreasonable. petitioner to pay a pro rata share of the cost of completing Mark Street

to be substantial, and therefore no reasonable person would want to purchase,

Mark Street Extension, which will create frontage for all of the lots in the Street Extension. In light of this concern, we do not find the cost condition to unless Mark Street Extension were completed, it is reasonable to require the property – to pay a pro rata share of the cost to complete construction of Mark reasonable solution was to require the petitioner – or a future owner of the

petitioner contends that the cost of constructing Mark Street Extension is likely

the condition is reasonable because it is aimed at the ultimate completion of the other properties located in the subdivision. Further, the Town asserts that not impose a greater or lesser burden upon the property compared with any of and that but for the variance the petitioner would not have adequate frontage 6 presently unbuildable. Given that the petitioner’s lot is part of the subdivision, lots.” Concerned about the potential hazards of the situation, the ZBA’s subdivision, and that four of the six lots have no road frontage and are

unknown and undefined financial obligation on the owner of the property. The

buildable lots. The Town argues that the cost condition is fair, because it does petitioner’s driveway to access the unfinished ‘paper street’ that leads to their the ZBA to consider the fact that the petitioner’s property is part of a six-lot Mark Street Extension, the other lot owners would be able to use the the superior court found, “Instead of accessing their lots by way of a completed

The petitioner’s second argument is that the cost condition imposes an

lot, but must share the burden of constructing the road to access the separate located in a subdivision, she gains the benefit of owning a separate buildable to reject this argument, explaining that since the petitioner’s property is whole road, just her pro rata share of the costs. Further, it was reasonable for Mark Street Extension in order to provide access to the planned residence. As Moreover, the petitioner’s proposed driveway will, in fact, partially utilize

Town or any of the other lot owners decide to complete it. The Town urges us It should be emphasized that the petitioner is not obligated to pay for the

the subdivision are required to contribute toward the cost, should either the of constructing Mark Street Extension, and none of the other owners of lots in unreasonable because she alone is required to pay a pro rata share of the cost The petitioner first argues that the cost condition is arbitrary and

whom such use is to be exercised. Id. reasonable when they relate to the use of the land and not to the person by unreasonable or arbitrary. Vlahos, 101 N.H. at 463. Conditions are from more general language.”). A condition will not be upheld if it is application to a proposed driveway from a public street that [the Town]

p. 7 unreasonable. the superior court’s conclusion that the cost condition is neither arbitrary nor 7

Mark Street Extension. She argues that this condition “has no logical basis for

owner is the petitioner or another individual. Based on the foregoing, we affirm residentially zoned district. of adjustment granted a conditional variance to permit an ice cream stand in a

releases the Town from liability arising from the maintenance, repair or use of As stated above, the petitioner challenges the liability condition, which of the land but at the owner of the Lot.” We disagree. condition applicable to the premises. II. Liability Condition operating the premises for that particular year.”

applies to the owner of the lot at the time the road is constructed, whether the argument and reiterate our conclusion that the cost condition is reasonable. does not focus on a specific person. Rather, it runs with the land since it renders the property unsalable. Accordingly, we reject the petitioner’s land and not to the person exercising such use. In that case, the zoning board pro rata share of the construction of Mark Street Extension. The condition correctly points out, there is no evidence suggesting that the cost condition Here, the cost condition requires the property owner of record to pay a

cost condition, “since it is a monetary penalty not aimed at regulating the use the condition was unreasonable because it was specific to a person and not a

nontransferable because limited to the specific owner or lessee who was requirement of an annual permit, which was also revocable and

board in connection with a variance application must relate to the use of the property might be worth even more without the cost condition, as the Town In Vlahos, 101 N.H. at 463, we held that conditions imposed by a zoning

use. She asserts that the ZBA acted beyond its authority when it imposed the price of the property such that it would not be feasible to sell. unreasonable because it regulates the owner of the land, not the land or its evidence showing that the cost condition drastically reduced the possible sale Finally, the petitioner argues that the cost condition is unlawful and ZBA that the cost condition rendered the property worthless, nor was there any

was granted, the property’s value increased significantly. Although the petitioner’s property was not a buildable lot. Presumably after the variance The record demonstrates that prior to granting the variance, the

petitioner’s argument must fail because there was no evidence submitted to the develop or finance the property. In response, the Town asserts that the this possibility.

ZBA had safety concerns about the use of the driveway and the ‘paper street’ potential liability in the event of an accident. As the superior court noted, “The unfinished Mark Street Extension in order to reach their lots, the Town faced

the subdivision would be able to use the petitioner’s driveway to access the

the condition would continue to be reasonable under such circumstances.

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

Street Extension is completed. We express no opinion, however, as to whether harmless” for any expense resulting from its failure to do so. We recognize that circumstances may change in the event that Mark

the condition is nearly identical to the variance condition upheld in

We find this condition to be reasonable. At the time the ZBA granted the

policing and maintenance of the buildings and premises, and “save the town Hotel, Inc., 112 N.H. at 2 p. 8 8, requiring the hotel to assume liability for all

it mirrors the requirements of RSA 674:41, I(c) (Supp. 2006), and further, that maintains.” The Town argues that the liability condition is reasonable because