2007-620, ROBERT E. NASER d/b/a REN REALTY v. TOWN OF DEERING ZONING BOARD OF ADJUSTMENT

Cronin & Bisson, P.C.

No. 2007-620

Hillsborough-northern judicial district

(planning board) to develop the property by constructing twenty-five duplex previous owners received approval from the Town of Deering Planning Board record. The plaintiff owns seventy-seven acres in Deering. In 1989, the The following facts were found by the trial court or are supported by the

order of the Superior Court (Abramson HICKS, J. The plaintiff, Robert E. Naser d/b/a REN Realty, appeals an

Upton & Hatfield, LLP

remand. and denying his request for a variance. We affirm in part, reverse in part and his subdivision application failed to comply with the town’s zoning ordinance defendant, the Town of Deering Zoning Board of Adjustment (ZBA), ruling that

Serge THE SUPREME COURT OF NEW HAMPSHIRE on the brief, and Mr. Upton orally), for the defendant.

Muller, Jr. on the brief, and Mr. Cronin orally), for the plaintiff.

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. 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, One Charles Doe Drive, Concord, 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 22 as to the town “was a quid p. 2 ZBA to determine that the previous owners’ grant of the conservation easement with the spirit of the ordinance; and (3) there was insufficient evidence for the show that the variance was not contrary to the public interest and consistent (1) the yield plan did not satisfy the requirements of section 13; (2) he failed to The plaintiff appeals, arguing that the trial court erred in finding that:

subdivision or development.” Deering Zoning Ordinance will be no greater than permitted within that zoning district for a conventional applicant is required to submit a yield plan that shows “that the net density space is preserved on the property. To determine the appropriate density, an to increase density by decreasing lot sizes provided a requisite amount of open Section 13 regulates open space developments and permits an applicant

required for a variance. land in the yield plan and that he failed to satisfy at least two of the five criteria that section 13 did not permit the plaintiff to use the conservation easement appealed to the superior court, which affirmed the decision of the ZBA, ruling plan. The ZBA denied both the appeal and the variance request. The plaintiff from section 13 to allow him to use the conservation easement land in the yield decision of the planning board and, in the alternative, requesting a variance The plaintiff then submitted an application to the ZBA appealing the

the application because it failed to comply with section 13 of the Deering subject to the conservation easement. The planning board declined to accept of fourteen single-family homes on the twenty-seven acres that were not original condominium plan.” We address each argument in turn. submitted a subdivision application to the planning board for the development pro quo transaction for Planning Board approval of the completed and the property was conveyed to the plaintiff in 1994. In 2006, he

therefore, the open space subdivision ordinance was not satisfied. that the inclusion of the fifty acres in the yield plan was improper and, construct fourteen homes on twenty-seven acres. The planning board found conservation easement in the density calculation, thereby allowing him to The plaintiff’s yield plan included the fifty acres subject to the

Improvements began on the property but the development was never

grantors. upon the completion of the development or reserve a right of reverter to the seventy-seven acres. The deed did not condition the grant of the easement conveyed a conservation easement to the town over approximately fifty of the property owners to the Town of Deering (town). In 1990, the previous owners before the planning board about a conservation easement to be granted by the buildings. Throughout the approval process, there were numerous discussions p. 3 Stankiewicz v. City of Manchester

words that they did not see fit to include. drafters of the ordinance might have intended, or add

legislative intent, and we will not guess what the

regulatory purposes, the “lot” necessarily includes the portion burdened by the development “renders the overall scheme inherently contradictory”; (2) for upon [the] general goals and objectives” of the open space subdivision form of beyond the ordinance itself for further indications of establish “the allowable density on the lot,” and “judging [the yield plan] based yield plan. He argues that: (1) the express purpose of the yield plan is to The plaintiff makes several arguments regarding the interpretation of the

comply with certain requirements, including, inter An applicant seeking to develop an open space subdivision must also 3

ordinance is plain and unambiguous, we need not look leave the land ‘saved’ by doing so as open space . . . .” Deering Zoning usage of the language. When the language of an The intent of the section “is to enable the applicant to decrease lot sizes and

Section 13 establishes the requirements for an open space development. be legally permitted in a conventional layout.” Id. § 13.5, b.(1) and not show potential house sites or streets in areas that would not ordinarily that “[t]he yield plan is meant to be conceptual in nature but must be realistic subdivision or development.” Id. § 13.5, b. The ordinance further provides will be no greater than permitted within that zoning district for a conventional appropriate density for the development. It must show “that the net density § 13.7, d. The yield plan is used by the planning board to determine the requirements of any and all State and local subdivision regulations.” Id. of the specific zoning district in which the property is located and the applicant showing a feasible conventional subdivision under the requirements ordinance according to the common and approved yield plan, id. § 13.5, b, which is defined as “[a] plan submitted by the

a. submerged areas, utility right-of-ways, wetlands and their buffers.” Id. § 13.7, defined as “[t]he area of a site that does not include slopes of 25% or more, percentage of 50% of the total buildable area.” Id. § 13.5, f. “Buildable area” is Ordinance § 13.4, a. “The total area of dedicated open space shall equal a

review, we construe the words and phrases of an

omitted). law, which we review de , 156 N.H. 587, 592 (2007) (citations

rules of statutory construction generally govern our

[T]he interpretation of an ordinance is a question of

I. Yield Plan p. 4 The language of section 13 is clear: a yield plan must show a “feasible by the plaintiff does not satisfy the ordinance requirements for a yield plan. of satisfying the fifty percent open space requirement, the yield plan submitted included in the yield plan and considered as part of the entire lot for purposes

Even assuming, arguendo, that the conservation easement land can be The plaintiff’s second and third arguments miss an important point.

a “feasible conventional subdivision,” id. § 13.7, d. locating lots on this land is not “realistic,” id. § 13.5, b.(1), and does not depict conservation easement land can never be developed as a part of a subdivision, order to achieve the layout supporting the proposed density[.]”). Because the require a variance or waiver from the existing ordinances or regulations in plan shall comply with conventional subdivision standards and shall not with all applicable restrictions and regulations. See id. § 13.5, b.(4) (“The yield subdivision shown on the yield plan could actually be developed in accordance “feasible,” id. § 13.7, d. We read this to require that the conventional ordinance expressly requires that the yield plan be “realistic,” id., and While we recognize that the yield plan is “conceptual,” id. § 13.5, b.(1), the dwelling . . . shall be constructed, placed or introduced onto the Property.” perpetuity as open space”; “The Property shall not be subdivided”; and “No easement provides, inter alia, that: “The Property shall be maintained in town, however, do not allow the land to be developed in this manner. The easement land. The restrictions of the conservation easement granted to the (emphasis added). The plaintiff’s yield plan places lots within the conservation error. ordinarily be legally permitted in a conventional layout,” id requirements. His argument is conclusory at best. Accordingly, we find no. § 13.5, b.(1) realistic yield plan should be properly judged in light of the open space subdivision and not show potential house sites or streets in areas that would not conventional subdivision,” id develop this argument in his brief. He does not assert, for example, how the. § 13.7, d. (emphasis added), and “must be if the trial court had so judged the yield plan, the plaintiff fails to sufficiently objectives” of the open space subdivision form of development. However, even the trial court judged the yield plan “based upon [the] general goals and In his first argument, the plaintiff fails to point to an example of where

conservation easement, id. § 13.7, a. and the definition of buildable area does not exclude land already subject to a preserved must equal fifty percent of the total “buildable area,” id. § 13.5, f., plaintiff points out that, under the terms of the ordinance, the open space satisfying open space requirements. In support of his last argument, the use of existing open space, or land burdened by a conservation easement, in existing conservation easement; and (3) the ordinance does not preclude the p. 5 Kalil v. Town of Dummer Zoning Bd. of Adjustment

must unduly, and in a marked degree conflict with the is legally erroneous.

To be contrary to the public interest the variance decision unless it is not supported by the evidence or

proof. We, in turn, will uphold the superior court’s

spirit of the ordinance.

decision in the superior court bears the burden of

requirement that the variance be consistent with the

unreasonable. The party seeking to set aside the ZBA

contrary to the public interest is related to the

evidence before it that the ZBA decision is

diminish the value of surrounding properties. Malachy Glen Assocs. v. Town of ordinance; (4) substantial justice is done; and (5) granting the variance will not 5 unnecessary hardship; (3) the variance is consistent with the spirit of the a literal enforcement of the provisions of the ordinance will result in The requirement that the variance not be will not be contrary to the public interest; (2) special conditions exist such that An applicant seeking a variance must demonstrate that: (1) the variance

court is persuaded by a balance of probabilities on the

II. Variance (citations omitted).

The superior court’s review in zoning cases is limited.

failed to satisfy them, affirmed the ZBA’s denial of the variance. the spirit of the ordinance criteria and, based upon its finding that the plaintiff denied the variance. The trial court focused only upon the public interest and The ZBA found that the plaintiff failed to satisfy the first four criteria and

the superior court absent errors of law, unless the facie lawful and reasonable and will not be set aside by

that he did not satisfy two of the five variance criteria. easement land in the yield plan. He argues that the trial court erred in finding The plaintiff requested a variance from section 13 to use the conservation Chichester, 155 N.H. 102, 105 (2007).

satisfy section 13 of the ordinance. decision to uphold the planning board’s finding that the yield plan did not Accordingly, it was not error for the trial court to affirm the ZBA’s sought to substantially increase the density of a very small area,” i.e. p. 6 found that “[t]he evidence before the ZBA demonstrated that the [plaintiff] The trial court found the ZBA’s decision to be reasonable and lawful. It

Town’s basic zoning objectives. granting the variance would unduly interfere with the

a strong interest in preserving open space and that

marked degree conflict plaintiff to use the conservation land in this manner would “unduly, and in a the entire remaining twenty-seven acres. We fail to see how permitting the Ordinance make it plain that the Town of Deering has subdivision would result in the development of fourteen single-family homes on variance to use this land to satisfy the open space requirements for his developed under the terms of the easement deed. To grant the plaintiff a permanently preserved as open space; this portion of the property cannot be property’s approximately seventy-seven acres. These fifty acres are already

Plan and the stated purpose of Section 13 of the

The conservation easement held by the town encompasses fifty of the

contrary to the public interest. The Deering Master

The objectives listed under section 13 include, inter 6

failed to show that granting the variance would not be

§ 13.5, f. that fifty percent of “the total buildable area” be dedicated to open space. Id. Zoning Ordinance § 13.2. To promote these objectives, the ordinance requires development, thus preserving Open Space as undeveloped land.” Deering preservation of open space”; and “[e]ncourage a less sprawling form of preservation of natural resources and open space”; “assuring the permanent “[m]aintain the special elements of rural character of the town through the would likely be lost through conventional development approaches”; agricultural and forestlands, habitat, water quality, and rural character that The ZBA found that the plaintiff

lost.” this Ordinance section, that is, to preserve open space that might otherwise be encumbered by a conservation easement would be to ignore the very purpose of that “[t]o allow the [plaintiff] to calculate density utilizing land already upon the land that was already established as such.” The court further found provide for any open space as part of the actual subdivision, instead relying unencumbered twenty-seven acres, and that “the [plaintiff’s] proposal did not

Malachy Glen

zoning objectives.

omitted).

, 155 N.H. at 105 (quotations, citation, ellipsis and brackets

ordinance such that it violates the ordinance’s basic p. 7 III. Quid Pro Quo Transaction

criteria in the first instance. trial court to consider the unnecessary hardship and substantial justice will not address the remaining variance criteria on appeal and remand for the plaintiff’s variance to the spirit of the ordinance and public interest criteria, we Because the trial court limited its review of the ZBA’s denial of the this issue. Kalil equivalent to a ruling that the plaintiff failed to carry his burden of proof on Affirmed in part; reversed in part; supported by the certified record. Such a finding by the trial court is way.” The trial court found that this decision was reasonable and lawful and evidence presented on this issue was insufficient for the ZBA to find either After considering the evidence before it, the ZBA found that “[t]he

and remanded.

erroneous. say that the trial court’s decision was unsupported by the evidence or legally owners’ grant of the conservation easement to the town “was a quid, 155 N.H. at 309. Based upon the record before us, we cannot finding that there was insufficient evidence for it to determine that the previous as the evidence does not support it. The plaintiff lastly argues that the trial court erred in affirming the ZBA’s the ordinance. Accordingly, we reverse the trial court’s decision on this issue space requirement. As we stated above, this does not conflict in any way with portion of his land burdened by a conservation easement as satisfying the open without preserving open space, but rather he seeks a variance to include that however, is not seeking a variance to increase the lot density on his property support granting him a variance. open space that would otherwise justify the added density.” The plaintiff, denying his variance request and that a finding on this point in his favor would remaining 27 acres from 7-9 house lots to 14 house lots with no preservation of He argues that the ZBA relied upon its finding of insufficient evidence in ordinance because it would allow the plaintiff “to increase the lot density of the transaction for Planning Board approval of the original condominium plan.” The town argues that granting the variance would conflict with the pro quo

basic zoning objectives to conserve and preserve open space. We believe, as a matter of law, that this in no way conflicts with the ordinance’s open space land necessary to satisfy the applicable ordinance requirements. conservation easement land in any way; rather, he seeks to identify it as the (quotation omitted; emphasis added). The plaintiff does not seek to develop the p. 8 8

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