2006-381, CHARLES KALIL & a. v. TOWN OF DUMMER ZBA

The plaintiffs, Charles and Brenda Kalil, appeal an order of

memorandum of law and orally), for the defendant. Law Office of James E. Michalik, of Berlin (James E. Michalik on the

Claudine C. Safar on the brief, and Mr. Cooper orally), for the plaintiffs. to press. Errors may be reported by E-mail at the following address: Cooper, Deans & Cargill, P.A., of North Conway (Randall F. Cooper and

TOWN OF DUMMER ZONING BOARD OF ADJUSTMENT

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

editorial errors in order that corrections may be made before the opinion goes No. 2006-381 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Coos 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 not in and of itself error.”

p. 2 review, the absence of findings, at least where there is no request therefor, is specific findings of fact by a board of adjustment may often facilitate judicial matter to the ZBA for further proceedings. This appeal followed. decision lacked findings, the ruling constitutes error. “Although disclosure of 2

and remand the matter because it found the text of the decision unclear, we

decision is unreasonable.

ruled that the ZBA’s decision was “under developed”; therefore, it remanded the means the superior court reversed the ZBA’s decision because it found the

On the other hand, to the extent the superior court intended to vacate

legally erroneous. (1977). (2006); see also Pappas v. City of Manchester Zoning Bd., 117 N.H. 622, 625

persuaded by a balance of probabilities on the evidence before it that the ZBA

to the superior court. Describing the record as “meager,” the superior court some instances do not state a definitive conclusion.” To the extent this ruling application. After unsuccessfully moving for rehearing, the plaintiffs appealed satisfied. The superior court’s review in zoning cases is limited. application failed to satisfy the variance criteria are not fully developed and in ZBA voted to deny both the building permits appeal and the variance The superior court ruled that “the ZBA’s explanations for why the

the superior court’s decision unless it is not supported by the evidence or is in the superior court bears the burden of proof. Id. We, in turn, will uphold

be set aside by the superior court absent errors of law, unless the court is findings of the ZBA are deemed prima facie lawful and reasonable and will not Town of Henniker, 154 N.H. ___, ___, 907 A.2d 948, 950 (2006). Factual

in the record to determine whether the requirements for a variance were plaintiffs’ appeal and their application for a variance. After the hearing, the remanded the matter to the ZBA, but instead should have weighed the evidence The plaintiffs first argue that the superior court should not have

proposed structures were not permitted uses. new structures is not permitted in the conservation overlay zone and that the

applications. The ZBA conducted a hearing on March 23, 2005, to consider the the barn, bird barn and farmhouse that were the subject of the building permit variance from the ZBA to construct a fish and game farm, which would include The plaintiffs appealed to the ZBA. At the same time, they sought a

farmhouse. The selectmen denied the applications, ruling that the building of building permits to construct a barn, a bird barn with flying pen, and a to allow the court to take additional evidence.

p. 3 it in evaluating the decision – then it would make little sense for the legislature

decision and record presented to it initially – and could not take steps to assist review process wherein the superior court were required to review only the or partly vacated, the court may also, in its discretion though it was not before the board.”). If the statutory scheme contemplated a

may be; but, in case such order or decision is wholly trial court. Such additional evidence may be taken into consideration even

evaluating the action of the board.”

decision complained of in whole or in part, as the case

incomplete or nonexistent, the aggrieved party may . . . present evidence to the dismissing the appeal, or vacating the order or

The final judgment upon every appeal shall be a decree

Furthermore, RSA 677:11 (1996) provides: take additional evidence on appeal and provide a means “to assist the court in

statutory scheme or our case law. the superior court’s order does not direct the ZBA to make findings. without authority to do so by operation of either the plain language of the

RSA 677:10, “to the extent the record of the evidence before the board is omitted); see also Pappas, 117 N.H. at 625 (holding, under the predecessor to based upon the decision and record before it, Robinson, 149 N.H. at 258 (quotation

In addition, RSA 677:10 and :13 expressly allow the superior court to

Thomas, 153 N.H. at 724.

approach, remanding to permit the ZBA to clarify its decision. Significantly, permit clarification. Thus, the question becomes whether the superior court is that it found to be unclear, the superior court opted to follow a more cautious some amount of deference to the local zoning boards. Rather than review text findings to be treated as prima facie lawful and reasonable clearly envisages prima facie lawful and reasonable. See RSA 677:6. Requiring the ZBA’s does, however, require the superior court to treat the findings of the ZBA as approached this case in any of several ways. It could have conducted its review the ZBA for clarification. RSA 677:6 contains no such express restriction. It case law that would preclude the superior court from remanding this matter to We discern nothing in either the plain language of the statutes or our

steps. Instead, the court found the ZBA’s decision unclear and remanded to of Hudson, 149 N.H. 255, 258 (2003). The court did not take either of these have taken additional evidence, see RSA 677:10, :13 (1996); Robinson v. Town

The superior court, consistent with its statutory authority, could have

authority. This is not a case about the procedures the ZBA must follow. see no error. We emphasize that this is a case about the superior court’s decision and remanded to permit the ZBA to clarify its decision.

p. 4 reasonable.” Presumably in the interest of justice, the court vacated the ZBA’s

states, “[T]his Court cannot determine whether the ZBA’s decision is lawful and

so that review could

board). We did not depart from the plain language of RSA 677:6 or hold that afford a trial de novo, but to assist the court in evaluating the action of the Wetlands Bd., 133 N.H. 98, 106-07 (1990) (purpose of RSA 677:10 is not to novo review in zoning appeals. See also Lake Sunapee Protective Assoc. v. N.H. Pine, 149 N.H. at 670, we held that the superior court may not conduct a de Second, in both evidence.” We disagree. Chester Rod & Gun Club, 152 N.H. at 583, and Lone the board’s rationale or conclusions. So it is here. The superior court’s order court opts not to reach the merits of the appeal because it is uncertain as to we reject their argument to the contrary. mean that the court has reversed the ZBA’s decision. It simply means that the did not effectively deny the plaintiffs judicial review of the ZBA’s decision and

decision itself was unclear and remanded it to the ZBA to permit clarification Lone Pine, 149 N.H. at 670-71. Instead, here, the superior court held that the Vigeant, 151 N.H. at 750, or committed error in the course of that review, see reversible error, ZBA decision to determine whether it was supported by the evidence, see First, the instant case is not one in which the superior court reviewed a

provisions of RSA 677:11. that those cases hold “that superior courts are precluded from weighing the Hunters’ Club v. Town of Hollis, 149 N.H. 668, 670-71 (2003), to the extent Rod & Gun Club v. Town of Chester, 152 N.H. 577, 583 (2005), and Lone Pine ZBA to make findings or finding error where findings are absent. Nor does it evidence in the record and that we should overrule our decisions in Chester (2005), contend both that the superior court erred by failing to review the The plaintiffs, citing Vigeant v. Town of Hudson, 151 N.H. 747, 750-51

677:11. Although we have held that a ZBA’s failure to make factual findings is not See RSA

remand for clarification, its order is consistent with the above-quoted

clarification does not necessarily mean that the court is either ordering the where it determines that the decision is unclear. A remand to permit the superior court is without authority to remand a decision for clarification

Thomas, 153 N.H. at 724, it does not necessarily follow that

Having examined the statutory scheme, we turn to the case law.

To the extent the superior court intended to vacate the ZBA’s decision and to

inconsistent with the decree, as justice may require. remand . . . for such further proceedings, not application, it was error for the court not to have ruled upon the portion of the

introduce new evidence or testimony. 3 Zeigler, for the Town, the abutters or any other party to enlarge the record or to have remanded the matter to the ZBA on issues pertaining to the variance

standard was met.” legal standard,” unless it “could find, as a matter of law, that the correct legal

by a balance of the probabilities, whether the decision is unreasonable. decision is clear to the court, the court is in a much better position to evaluate, no such limitation on the superior court’s authority because once a ZBA’s decision based upon the pre-existing record. The remand is not an opportunity The plaintiffs argue that even if it was proper for the superior court to

obliged to remand to the ZBA to reconsider the evidence against the correct conclusions”); RSA 677:10 (authorizing the court to take new evidence). ZBA “to merely come forward with a statement of its findings and its and Planning § 62:48, at 62-134 to 62-13 p. 5 5 (2006) (the court may authorize the

authority to remand a matter for clarification. It is not surprising that there is in order to allow the ZBA to elicit testimony or modify its record in order to system that merely remands the matter to the ZBA as many times as necessary a remand for that issue is for the ZBA to be given an opportunity to clarify its however, the superior court ruled that the decision was unclear. The scope of

zoning board applied an incorrect legal standard, we held that the court “was identified. For example, where the superior court determined that a local The scope of the remand is limited by the nature of the error or issue

we find no basis upon which to conclude that the superior court is without dispute. The plaintiffs contend that the statutory scheme does not create “a However, our inquiry does not end here. The scope of the remand is in

inquiry. decision to remand the matter to the ZBA. of review, indicating that the superior court should engage in precisely that 49 p. 5 5 (1974). Accordingly, discerning no error, we uphold the superior court’s RSA 677:6; unreasonable. To the contrary, in both cases, we recited the familiar standard cf. Alcorn v. Rochester Zoning Bd. of Adjustment, 114 N.H. 491,

Thus, based upon our review of the statutory scheme and our case law,

670.

Chester Rod & Gun Club, 1 p. 5 52 N.H. at 580; Lone Pine, 149 N.H. at

probabilities, on the evidence before it, whether the ZBA’s decision is the superior court is prohibited from determining, by the balance of variance would have been rendered moot.

p. 6 have been granted and] the Applicant’s need for a uses under the Ordinance, [the building permits would

which the superior court did not address. court found that the proposed uses were permitted ordinance presents a significant – and perhaps even threshold – legal issue, plaintiffs to seek a use variance. Thus, the interpretation of the Town’s

to the ZBA. 6

sufficiency of the evidence within the record. If the

within the two conservation zones, then there would be no need for the briefs do not contain sufficient substantive discussion of this issue. the superior court should have interpreted the ordinance; and (2) the parties’

made, the superior court may, consistent with this opinion, remand this matter

BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred. strictly legal question and did not turn on the Conservation Overlay Zone. This question was a the ordinance would mean that the plaintiffs’ proposed uses are permitted permitted uses within the Conservation Zone and remanded.

Once a ruling or explanation upon issues relating to the building permits is the building permits or explain why it is reserving decision upon those issues. the superior court should either address the merits of the issues surrounding Accordingly, we remand this matter to the superior court. On remand,

Appeal of AlphaDirections, 152 N.H. 477, 483-84 (2005).

interpret the ordinance here. We decline to do so, however, because: (1) the de novo, Duffy v. City of Dover, 149 N.H. 178, 181 (2003), we could simply Since we would review any ruling on the interpretation of the ordinance

We agree with the plaintiffs. If both the selectmen and the ZBA applicant’s proposed uses of the property, to include a

The Court should have addressed whether the

the following terms: appeal relating to the building permits. The plaintiffs frame their argument in