2008-147, WILLIAM SCHROEDER & a. v. TOWN OF WINDHAM & a

The intervenors, Andrew P. and Christine J. Lane, trustees

brief. Beaumont & Campbell, P.A., of Salem, for the Town of Windham, filed no

and Christine J. Lane, trustees of the A&C Revocable Trust. Barsamian on the brief, and Mr. Michael orally), for the intervenors, Andrew P. Wiggin & Nourie, P.A., of Manchester (Gregory E. Michael and Nicole M.

to press. Errors may be reported by E-mail at the following address: Michael L. Donovan, of Concord, by brief and orally, for the plaintiffs.

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

editorial errors in order that corrections may be made before the opinion goes No. 2008-147 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham 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 erred in finding that their request was for relief from a use restriction.

p. 2 RSA 674:33-a, IV. On appeal, the intervenors argue that the superior court

mathematical or dimensional requirements, and not from use restrictions.” provides that equitable waivers shall only be granted “from physical layout, ordinance” if certain criteria are met. RSA 674:33-a, I. The statute further

violation of a physical layout or dimensional requirement imposed by a zoning

the evidence before it, that the ZBA’s decision is unreasonable.”

withdrew the intervenors’ building permit. lot or other division of land, or structure thereupon, is discovered to be in

equitable waiver. This appeal followed. RSA 674:33-a. The court agreed and reversed the ZBA’s decision to grant the the ZBA constitutes waiver of a use restriction, which cannot be waived under

of law, unless the court is persuaded, based upon a balance of probabilities, on and repaired the silt fencing. rotated the garage to increase the distance between excavation and wetlands Turner eventually allowed construction to continue after the intervenors ordinance. The superior court affirmed the ZBA’s decision. As a result, Turner and that the garage impinges upon the WWPD in violation of the town RSA 674:33-a allows a landowner to obtain an equitable waiver when “a determining that a portion of the intervenors’ property falls within the WWPD, by the evidence or is legally erroneous. Id. will uphold the superior court’s decision on appeal unless it is not supported Al Letizio, Jr., appealed to the superior court, arguing that the relief granted by the superior court. Boccia v. City of Portsmouth, 151 N.H. 85, 89 (2004). We seeking to set aside the ZBA’s decision bears the burden of proof on appeal to

lawful and reasonable, and will not be set aside by the trial court absent errors N.H. 74, 77 (2005). “The factual findings of the ZBA are deemed prima facie Planning and Development for the Town of Windham, issued a stop work order. Our review of zoning cases is limited. Harrington v. Town of Warner, 152

overlay district (WWPD), which prohibits its construction. The ZBA agreed,

despite its infringement into the WWPD. The plaintiffs, William Schroeder and issue here. The waiver permitted the garage to remain in its current location, Thereafter, the intervenors obtained from the ZBA the equitable waiver at

the potential impact on the surrounding wetlands. Alfred Turner, Director of obtained a building permit. After construction began, concerns arose regarding sought to construct a detached garage on a portion of the property and They argued that the garage fell within the Wetlands and Watershed Protection with the ZBA challenging Turner’s decision to allow construction of the garage. Subsequently, abutters to the property filed an administrative appeal

on property located adjacent to Canobie Lake in Windham. In 200 p. 3 3, they The following facts are supported by the record. The intervenors reside by the ordinance.

sites is not related to the acreage or other physical attributes of the property.

regardless of the number of acres within the park.” common and approved usage of the language. twenty-five. surrounding area as much as a use not permitted

zoning restriction at issue.” purposes of obtaining a variance.

an area restriction, the limitation on the number of manufactured housing

restriction because the limitation on the number of housing sites “applies words and phrases of an ordinance should be construed according to the Id. at 79. We concluded that this zoning provision created a use acres, and the number of housing lots within the park was not to exceed provision at issue provided that the proposed park must consist of at least ten area variance does not alter the character of the

limitations and lot size restrictions. As such, an Harrington, 152 N.H. at 76. The zoning

by-case determination based upon the language and purpose of the particular placement of manufactured housing parks created a use or area restriction for setbacks, frontage requirements, height In Harrington, we examined whether a particular provision relating to the

character of the surrounding area and is thus a use restriction. further indications of legislative intent. Id. at 495. plain and unambiguous, we need not look beyond the ordinance itself for Holdings, 155 N.H. 491, 494-95 (2007). When the language of an ordinance is

traditional rules of statutory construction generally govern our review, the ordinance in order to determine the purpose of the restriction. Id. Because the

“Whether the variance sought is an area or use variance requires a case- compliance with physical standards, such as

whether the purpose of the particular zoning restriction is to preserve the Id. (citation omitted). The critical distinction between area and use variances is

use restrictions for purposes of zoning.

but grants the landowner an exception from strict involves a use permitted by the zoning ordinance In contrast to a use variance, an area variance

the physical characteristics of the lot. Id. Harrington, 152 N.H. at 78. An area variance is generally made necessary by landowner to engage in a use of the land that the zoning ordinance prohibits. Boccia, 151 N.H. at 90. With respect to variances, a use variance allows the

We have on several occasions recognized a distinction between area and

provision, which constitutes a dimensional requirement. Specifically, they argue that the zoning provision at issue is a setback supplies;

contamination or reduce surface and groundwater

characteristics of the lot.”

the purpose of the WWPD’s regulations are, in pertinent part, surrounding area, thereby creating a use restriction. The ordinance states that permanent buildings was enacted in order to protect the character of the

contribute to surface and groundwater land uses within the W.W.P.D. that would boundaries. Prevent the development of structures, or other

. . . . equitable waiver request was not made necessary “by the physical said pond.”

Brook or stream and one hundred feet (100’) from the normal high water of to guide the use of wetlands . . . in order to:

of permanent buildings within the WWPD. Furthermore, we conclude that the WWPD’s restriction prohibiting

by the WWPD’s unambiguous prohibition of permanent buildings within its

permitted anywhere within the district. Consequently, the intervenors’ within the WWPD. Construction of permanent buildings is simply not all land within one hundred feet (100’) of the normal high water mark of said placement on the property, or the amount of the intervenors’ land located Harrington, this restriction does not depend upon the size of the structure, its

By its plain language, the ordinance expressly prohibits the construction

Section 601.1.” Id. § 601.3. erection of any permanent building or conflict with the intents and purposes in within the WWPD, it restricts permitted uses to those that “do not result in the the WWPD. Ordinance § 601. p. 4 4.1. While the ordinance permits certain uses

certain named brooks and “for any other brook, stream or pond shall include within one hundred and fifty feet (150’) of the normal high water mark” of 365 (1999). Section 601. p. 4 4.1 provides that the WWPD “shall include all lands at 53C-444.90 (2008); see, e.g., Brewster v. Town of Amherst, 144 N.H. 364, underlying zone.” 10 P. Rohan, Zoning and Land Use Controls § 53C.08[2][a], specified requirements . . . in addition to those otherwise applicable for the district, which is superimposed over the existing zoning district and “imposes Regulations § 601 (2008) (hereinafter Ordinance). The WWPD is an overlay

See Town of Windham, Zoning Ordinance and Land Use

Here, section 601 of the Town of Windham Zoning Ordinance establishes

character of the area.” Id. at 80. Rather, the restriction limits the intensity of the use in order to preserve the p. 5 5

the WWPD. character of the surrounding area.

WWPD.

intended. a setback provision would require us to conclude that the WWPD’s boundaries Furthermore, accepting the intervenors’ assertion that section 601.4.1 is

Id. Thus, Heron Cove is readily distinguishable from this case. petitioner conceded that, but for the exemption, the land would be protected by as such, is simply a dimensional restriction that is not meant to preserve the

of infringement into the WWPD was not at issue. Indeed, the Heron Cove exemption covered the land contiguous to the pond. Id. at 21 p. 5 5. The question ordinance’s dimensional restrictions. exempted pond. Id. at 214-15. The issue before us was whether this Permitted,” provides: “Any of the following brook, the land was not subject to the WWPD because of its proximity to the

Id. at 214. The petitioner argued that, despite the presence of the

Town of Windham Zoning Ordinance specifically exempted the pond from the contained a small brook that ran through the property into a pond. Id. The provision’s interpretation, it provides significant indication of what the drafters this assertion. This reliance is misplaced. In Heron Cove, the property at issue ordinance, titled “Use Regulation.” While the heading is not conclusive of this Thus, the prohibition of permanent buildings is a use restriction. Heron Cove Assoc. v. DVMD Holdings, 146 N.H. 211, 212 (2001), to support provisions relating to the WWPD are located within section 600 of the The intervenors rely upon our decision in

of permanent buildings is a The intervenors assert that section 601.4.1 is a setback provision, and,

Location of Buildings And Structures,” which appears to set forth the because the ordinance has a separate section, titled “Development of Sites And dimensional restriction. As stated above, section 601.3, titled “Uses N.H. p. 5 529, 534 (2006). In this case, the heading is particularly significant

See Greenland Conservation Comm’n v. N.H. Wetlands Council, 1 p. 5 54

it directly contradicts the regulations’ underlying goal of preserving the area. Further, the applicable heading in the ordinance supports our conclusion. The

added). Thus, the plain language of the ordinance indicates that construction erection of any permanent building . . . .” Ordinance § 601.3 (emphasis

Section 601.3 also supports our conclusion that this is a use and not a

Harrington, 1 p. 5 52 N.H. at 79.

just an incidental deviation from strict compliance with the WWPD regulations; Ordinance § 601.1. Locating a permanent structure within the WWPD is not

and safely located within the W.W.P.D. Encourage those uses that can be appropriately

. . . . p. 6 6

fifty (50) feet to the W.W.P.D. shall require review by planning staff.” use is also permitted in the overlay district.” 9 Rohan, BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

construction of permanent buildings, are not permitted. Affirmed. and beyond those of the underlying district. underlying zone. granted an equitable waiver from a use restriction, we affirm. setback requirement incidental to the otherwise permitted uses of the Because the superior court did not err in ruling that the ZBA improperly of an abutting zone, the boundaries of the WWPD do not merely serve as a the WWPD has explicitly established a fifty-foot setback from its boundaries. illogical to conclude that the boundaries of the WWPD are a mere setback when Ordinance § p. 6 601.4.9. This supports our determination because it would be

Moreover, the ordinance states: “Non-accessory buildings closer than manner permitted in the underlying district only if and to the extent that such

WWPD establish a distinct area within which certain uses, including the creates an autonomous overlay district mandating its own restrictions above See Harrington, 152 N.H. at 78. The boundaries of the

the boundaries of a residential district are not a setback for the permitted uses feet of the designated brooks and streams. See Ordinance § p. 6 601.4.1. Just as WWPD established a distinct zoning district which includes all land within 100 335. As the Town acknowledged at the hearing before the superior court, the

§ 53C.08[2][a], at 53C-444.90. “Land in an overlay district may be used in a

rear yard setback.” This assertion is incorrect. Section p. 6 601 of the ordinance different than construction of a garage being prohibited within a front, side or intervenors assert that construction of the garage within the WWPD “is no district’s permitted uses. See Harrington, 152 N.H. at 78. Indeed, the are simply an incidental physical limitation to the underlying residential