2007-475, NINE A, LLC v. TOWN OF CHESTERFIELD

variance requirements. We affirm.

court erred in not finding that the plaintiff satisfied the remaining

ordinance and were contrary to the public interest and that the superior

that the requested variances violated the spirit of Chesterfield’s zoning On appeal the plaintiff argues that the superior court erred in finding development of a parcel of land bordering Spofford Lake in Chesterfield.

Board of Adjustment (ZBA) denying variance applications for Court (Sullivan, J.) order affirming decisions of the Chesterfield Zoning GALWAY, J. The plaintiff, Nine A, LLC, challenges a Superior

the brief and orally), for the defendant. Tower, Crocker & Mullins, P.A., of Jaffrey (Thomas P. Mullins on

Dowd on the brief, and Mr. Berkson orally), for the plaintiff. goes to press. Errors may be reported by E-mail at the following address: Bragdon & Berkson, P.C., of Keene (H. Neil Berkson and Kelly E.

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

editorial errors in order that corrections may be made before the opinion No. 2007-475 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Cheshire Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 p. 2 Spofford Lake District.

six-acre parcel and all septic systems would be located outside the eighty-acre parcel would remain undeveloped. The wells would be on the feet (the March 2006 Variance Application). Under this proposal, the

acres, and with road frontage ranging from approximately 85 feet to 190

single-family lots ranging in size from approximately 0.70 acres to 0.95 District. The plaintiff sought to subdivide the six-acre parcel into seven 2 from the two-acre lot minimum requirement in the Spofford Lake plant located on the eighty-acre parcel services the building.

acres in size,

variances, one from the 200-foot frontage requirement and the second used as a rehabilitation facility. An on-site well and sewage treatment percent of the lot. In March 2006, the plaintiff applied to the ZBA for two area foot institutional building, known as Spofford Hall, which was previously District. Currently, the six-acre parcel contains a vacant 90,000 square applications are the subject of this appeal. for the purpose of redeveloping its property; however, only two The plaintiff filed three separate variance applications with the ZBA

developments. Lake District, two-family dwellings and cluster developments are not. See id. § 203.2. District. Residential District permits two-family residences and cluster While single-family dwellings are permitted uses in the Spofford

see id. § 301.2(A). Unlike the Spofford Lake District, the

cluster developments are prohibited on parcels that are less than thirty requirements may be reduced in cluster developments, see id. § 301.1,

impermeable coverage (including building coverage) not to exceed twenty the Spofford Lake District cannot exceed ten percent of the lot, with total is located in the Spofford Lake District, which overlays the Residential 200 feet of road frontage. See id. § 203.4. Also, the building coverage in Spofford Lake District must be at least two acres in size and have at least See Chesterfield, N.H. Zoning Ordinance § 203.6a. All lots in the

(the eighty-acre parcel). In 1999, the Town of Chesterfield established the Spofford Lake

Route 9A and approximately 1060 feet of frontage along Spofford Lake. It The six-acre parcel has approximately 380 feet of frontage on

the Residential District and it is located on the other side of Route 9A other side (the six-acre parcel). The remaining eighty acres is situated in acres is bordered by Spofford Lake on one side and by Route 9A on the approximately eighty-six acres of land in Chesterfield. Approximately six The record supports the following relevant facts. The plaintiff owns presentation to this Board . . . .” p. 3 the Board and yes to this concept subject to final subdivision planned

in making this motion, the Board is saying no to the application before

homes on the eighty-acre parcel. Thereafter, the ZBA stated, “To clarify, setbacks, and other criteria as well as development of three single-family conformed as closely as possible to the cluster regulations in frontage,

development on the six-acre parcel of six single-family homes that

which it increased the acreage and lot size requirements. the Town of Chesterfield created the Spofford Lake District through

District. The ZBA indicated that it would consider approving development would remain open space outside the Spofford Lake applications. The plaintiff contended that most of the thirty-acre cluster

District. However, the ZBA found that those lots were developed before

the site. Essentially, the same evidence was introduced as with the prior

were comparable to 63% of existing properties in the Spofford Lake taking a view of the property, the superior court affirmed the ZBA’s than the existing lot coverage. The plaintiff argued that the proposed lots contended that the proposed development would have less lot coverage

parcel (the June 2006 Variance Application). The ZBA members viewed

3

applications to the superior court and they were consolidated. After The plaintiff appealed the ZBA’s denial of the three variance of frontage and 39% have less than 100 feet of frontage. The plaintiff

three duplexes on approximately twenty-four acres of the eighty-acre include seven detached, single-family houses on the six-acre parcel and

plaintiff’s March 2006 Variance Application. but also aesthetics and density around the lake. The ZBA denied the

two acres, 63% are smaller than 0.75 acres, 69% have less than 200 feet District, which showed that 82% of existing properties are smaller than submitted a summary of existing properties within the Spofford Lake Spofford Hall with a condominium cluster development, which would In June 2006, the plaintiff requested a use variance to replace

that the intent of the ordinance was targeted at not only septic issues, impact is great for a 6-acre parcel to have 7 houses.” The ZBA indicated thirty-acre commitment. See id. § 301.2(A). The ZBA noted that “[t]he resembled a request for a cluster development without the requisite that, while the plaintiff applied for area variances, the plaintiff’s request During the ZBA’s deliberations on the application, the ZBA noted but could potentially increase surrounding property values. It also

appraisal opining that the proposed development would not decrease, previous, discontinued use of the property as well as a real estate development was expected to generate significantly less traffic than the submitted a traffic analysis opining that the proposed residential In support of the March 2006 Variance Application, the plaintiff the neighborhood and on the lake and effect on the surrounding natural p. 4 the density of the proposed development, such as the impact on traffic in

density. The court noted support in the record regarding concerns with

not consistent with the spirit of an ordinance targeted at reducing create seven lots less than half the size required under the ordinance was ruled that the record supported the ZBA’s finding that the proposal to

the variance will not diminish the value of surrounding properties. welfare. fact that there was no evidence of danger to public health, safety or

a basis for bypassing the zoning ordinance. The superior court also

spirit of the ordinance; (4) substantial justice is done; and (5) granting

existing lots surrounding the lake in size and perhaps character” and the

around Spofford Lake, such pre-existing lots were grandfathered and not plaintiff’s proposed lots were consistent with the majority of existing lots 4

results in unnecessary hardship; (3) the variance is consistent with the special conditions exist such that literal enforcement of the ordinance variance: (1) the variance will not be contrary to the public interest; (2) support, its findings that the development was “consistent with the

ruled that the ZBA lawfully and reasonably found that even if the As to the March 2006 Variance Application, the superior court

burden of proving the following five conditions in order to obtain a interest and violated the spirit of the ordinance in light of the record erred in ruling that the variance requests were contrary to the public ordinance itself. Instead, the plaintiff contends that the superior court By this appeal, the plaintiff does not challenge the legality of the

Garrison, 154 N.H. at 30. overturn its judgment.”

the evidence before it that the ZBA decision is unreasonable.” cases interpreting RSA 674:33, I(b) recognize that the applicant bears the of law, unless the court is persuaded by a balance of the probabilities on granted are statutory in origin. See RSA 674:33, I(b) (Supp. 2007). Our The requirements that an applicant must meet for a variance to be

applications were appealed to this court. (2001).

unsupported by the record or erroneous as a matter of law will we findings. Id. at 30. “Only if we find a trial court’s decision to be whether the evidence before the superior court reasonably supports its v. Town of Henniker, 154 N.H. 26, 29 (2006). We, in turn, review

reasonable and will not be set aside by the superior court absent errors “Factual findings of the ZBA are deemed prima facie lawful and

of the variance requirements. Only the last two of these variance findings under the public interest and the spirit of the ordinance prongs environmental impact.

p. 5 examined the specifics of the plaintiff’s proposal and considered its

of the ordinance. The superior court ruled that the ZBA lawfully would create an environment that was too dense in light of the purpose ruled that the ZBA reasonably found that the seven single-family homes

with the spirit and intent of the Ordinance. overdevelopment of the property, and thus, be inconsistent granting the variances would result in an overcrowding and

on the old growth trees existing on the property. The superior court

petitioner’s proposals, [the ZBA] reasonably found that

supported its concern with the effect that the seven homes would have

excluded from the Lake District. . . . [I]n reviewing the dwellings and cluster developments, among other things, are objectives. population on and around the lake. Thus, two-family

Moreover, the superior court found that the record before the ZBA construction of the seven homes would increase traffic on the lake itself. lake. The court noted that there was support in the record that

the ordinance such that it violates the ordinance’s basic zoning the overcrowding of and avoid an undue concentration of

5 0.75 acres to 0.95 acres would negatively affect the views to and from the ordinance’s basic zoning objectives, we look to, among other things, 105 (2007). In determining whether granting a variance violates an

Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102,

interest, the variance must unduly, and in a marked degree conflict with Spofford Lake District was, among other things, to prevent We have previously stated that, to be contrary to the public

two-story, 3,000 square foot homes on lots ranging from approximately court concluded that the ZBA could have reasonably found that seven, issues of over-development and overcrowding on the lake. The superior

and intent of the Ordinance. The purpose of creating the proposals conflicted in a significant manner with the spirit basic objectives of the ordinance. the ZBA reasonably and lawfully found that all three

The superior court summarized its rulings, stating that:

inconsistent with the spirit of the ordinance to limit density and address

that the March 2006 Variance Application unduly conflicted with the a balance of the probabilities, that the ZBA acted unreasonably in finding that area. Accordingly, the superior court ruled that it could not find, by

found that the ZBA reasonably concluded that the proposal was As to the June 2006 Variance Application, the superior court

of Chesterfield created the Spofford Lake District to reduce density in environment. The court also noted that it was undisputed that the Town meaningless. p. 6 Zoning Ordinance and much of RSA 674:33, I(b) would be rendered ordinance or public interest. If that were the case, the Chesterfield

any nonconforming residential use, regardless of the intent of the

such as cluster developments, were prohibited from the district.

reasoned, the plaintiff’s approach would permit it to put a property to variance would not be contrary to the ordinance’s intent to protect did not compel the ZBA to grant the variance. As the superior court that no injury would result to the wetlands and therefore granting the building with seven residential structures that also are not conforming, targeted at protecting wetlands.

specifically to preserve the lake. To this end, certain high-density uses, present use. nonconforming use that would not substantially enlarge or extend the when a party seeks to replace a nonconforming use with another 6

There, the variance was granted in part because the evidence established mere fact that the plaintiff proposed to replace a single nonconforming Malachy Glen Assocs., 155 N.H. at 104. that case, the applicant sought an area variance from an ordinance We note that this case is distinguishable from Malachy Glen. In Town of Chesterfield passed the Spofford Lake overlay district in 1999

for a zoning board to find that the spirit of the ordinance is not violated

(1972). Here, however, the superior court reasonably concluded that the

See Wentworth Hotel, Inc. v. New Castle, 112 N.H. 21, 25

required when that property was developed. The ZBA stated that the cluster development was permitted and therefore a variance was not noted that the subdivision was developed prior to 1999, at which time recognize that there may be situations where sufficient evidence exists consistent with the public interest and the spirit of the ordinance. We nonconforming use with a less intensive, more conforming use is The plaintiff argues on appeal that its proposal to replace a

permit only variances that are in the public interest.” Compare Chesterfield, N.H. Ordinance § 203.2(E) with id. § 203.6a.

around Spofford Lake that consists of six residences on six acres. It The ZBA examined an existing cluster development subdivision

(quotation omitted).

that variances be consistent with the spirit of the ordinance, or which inconsistent with the purpose and intent of the ordinance, which require protected by standards which prohibit the granting of a variance Town of Chester, 152 N.H. 577, 580 (2005). “The public interests are consistent with the spirit of the p. 7 ordinance.” Chester Rod & Gun Club v. public interest” is “related to the requirement that the variance be exclusive. The requirement that the variance not be “contrary to the public health, safety or welfare. Id. at 105-06. Such examples are not whether it would alter the essential character of the locality or threaten concentration of population on and around, the lake.

p. 7 ordinance. outweighed having the character of the neighborhood control the zoning

created to prevent, among other things, the overcrowding of, and undue current character of neighborhoods,

population”). Thus, the need to preserve a unique natural resource when a sufficient basis exists to do so. this case, the plaintiff seeks to use the character of properties developed that had occurred after the town enacted the p. 7 ordinance. Conversely, in

ability to carry out the purposes of zoning in light of changing conditions. changed. dwellings and cluster developments, the Spofford Lake District was neighborhood surrounding the applicant’s property substantially previously stated that a town’s zoning ordinances should reflect the

7

are to “prevent overcrowding of land” and “undue concentration of enacting an ordinance targeted at altering the neighborhood’s character the applicant did not reflect the evolution of the surrounding properties

Belanger, 121 N.H. at 393. Thus, the zoning imposed upon deny the town the ability to make such changes would undermine its

enacted an ordinance increasing lot size and frontage requirements. To of the lake. The superior court concluded that, by prohibiting two-family ordinance at issue in that case was enacted, the current character of the Town of Chesterfield wanted to reduce density around the lake and with the current character of the neighborhood. While we have District, it determined that such zoning interfered with the preservation We further distinguish Belanger on the basis that after the Chesterfield previously permitted cluster residences in the Spofford Lake

I(e), (g) (Supp. 2007) (two of the statutory purposes of zoning ordinances character of the neighborhood does not necessarily preclude a town from See RSA 674:17,

less road frontage. Recognizing the need to preserve Spofford Lake, the ordinance is satisfied in this case because its proposed use is consistent Chesterfield determined needed protection. While the Town of Here, the lake is a unique natural resource that the Town of

considerations may be taken into account as well. As such, the current

character of the neighborhood around the lake included smaller lots with N.H. 389, 393 (1981), the plaintiff argues that the spirit and intent of the of Newington, 145 N.H. 727, 731 (2001); Belanger v. City of Nashua, 121 current character of the neighborhood, see Simplex Technologies v. Town Relying upon the principle that a zoning ordinance must reflect the

See RSA 674:17, I (Supp. 2007).

change in the p. 7 ordinance. Prior to enacting the Spofford Lake District, the the lake. Moreover, unlike in this case, Malachy Glen did not involve a variance would be contrary to the town’s intent to reduce density around wetlands. Id. at 106. Here, however, the ZBA found that granting the ordinance. p. 8 contrary to the public interest and inconsistent with the spirit of the

we need not address whether the plaintiff satisfied the remaining

parcel. The ZBA could reasonably have found that proposal to be

to the public interest and was consistent with the spirit of the ordinance, purpose of the ordinance.

development, the majority of the “cluster” would be on the six-acre

denying the variance. 8 court erred in concluding that the ZBA acted reasonably and lawfully in

of the ordinance” and not p. 8 contrary to the public interest. the requirement that the variance will not be inconsistent with the spirit not satisfy its burden of proving that its proposed use was not contrary Spofford Lake District, and deprive the town of its ability to further the Because we uphold the superior court’s ruling that the plaintiff did would unduly conflict with the intent of the ordinance in creating the with preexisting lots would be entitled to an area variance. Such a result particularly when a view was taken). development. Moreover, under the plaintiff’s proposals for cluster 750 (2005) (findings of trial court were within its sound discretion, requirements, and that would contribute to lakeside congestion and over- See id.; Vigeant v. Town of Hudson, 151 N.H. 747, develop seven lots that did not conform to the acreage and frontage land and to avoid undue concentration of population.” deference in our standard of review, we cannot find that the superior N.H. at 473. Given the evidence before the ZBA and the level of

proving all elements necessary for the granting of a variance, including “Throughout the proceedings, [the plaintiff] held the burden of

court did not err in ruling that the ZBA’s denial was reasonable. the case, any landowner proposing to build on a lot consistent in size also RSA 674:17 (Supp. 2007). Thus, we conclude that the superior Beach Village Dist., 116 N.H. 768, 771 (1976) (quotations omitted); see

the density of buildings in that region. Here, the plaintiff proposed to zoning an area for single family use is to prevent the overcrowding of Simplex, 145 N.H. at 729 (quotation omitted). Further, “[t]he purpose of the zoning ordinance without sacrifice to its spirit and purpose.” “The purpose of a variance is to allow for a waiver of the strict letter of

See Bacon v. Town of Enfield, 150 N.H. 468, 473 (2004).

different zoning standards. As the court correctly reasoned, if that were and frontage to nonconforming existing lots that were developed under entitled to a variance to develop residential properties similar in acreage requirement of the Spofford Lake District evidence an intent to reduce The minimum lot requirement and the minimum frontage

variance. The superior court rejected the plaintiff’s argument that it was before the town enacted the ordinance as the basis for granting the p. 9 9

BRODERICK, C.J.