2008-223, GREG TAYLOR & a. v. TOWN OF WAKEFIELD

orally), for intervenors Peter A. Harrington and Amy M. Harrington. Walker & Varney, P.C., of Wolfeboro (Thomas R. Walker on the brief and

orally), for the Town of Wakefield Board of Selectmen. Sager Law, PLLC, of Ossipee (Richard D. Sager on the joint brief and

joint brief and orally), for Greg and Gail Taylor. Wholey & Pelech Law Office, of Portsmouth (Bernard W. Pelech on the

to press. Errors may be reported by E-mail at the following address: v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-223 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Carroll 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 from seeking appropriate approval from the regulatory bodies of the Town for

p. 2 superior court noted, “Nothing in this Order shall preclude any interested party

approved. permit to construct a home. The home was completed, inspected and Harringtons by warranty deed. In 2002, the Harringtons received a building

to the applicability and interpretation of the ordinance. In its order, the order for injunctive relief because it found the parties had a genuine dispute as civil penalties on Doyle and McLaughlin for the period of time preceding the

later conveyed the non-shorefront lot, which included the easement, to the

The superior court, however, declined the town’s request to impose fines and

thirty-five feet of frontage access on Pine River Pond. Doyle and McLaughlin The easement ran across the shorefront lot and granted the non-shorefront lot the Taylors. pedestrian ingress, egress and access to the shore of Pine River Pond . . . .”

in which the superior court ruled that the easement violated the ordinance.

later conveyed the shorefront lot, including the easement, by warranty deed to the shorefront lot in favor of the non-shorefront lot “to provide vehicular and required the easement to have a minimum of 100 feet of shore frontage. Gaff and McLaughlin that the easement violated a town zoning ordinance that

but has no frontage on the pond.

The Town of Wakefield obtained injunctive relief in an enforcement action

met the requirements of RSA 674:33-a, I(b) (2006), we reverse. concluding that the evidence supported the ZBA finding that the intervenors Lawrence Gaff. In the deed, Doyle and McLaughlin created an easement over The Town of Wakefield Board of Selectmen subsequently notified Doyle

frontage on Pine River Pond. The non-shorefront lot borders the shorefront lot,

waterfront lot. Because we conclude that the superior court erred in Doyle and McLaughlin conveyed, by warranty deed, the shorefront lot to

77-64 (the shorefront lot). The shorefront lot has approximately 127 feet of Charles K. McLaughlin, including Lot 77-86 (the non-shorefront lot) and Lot conveyed three separate tracts of land to intervenors James F. Doyle and The record supports the following facts. Linwood and Sylvia Gagnon

land owned by intervenors Peter and Amy Harrington over the Taylors’ an equitable waiver for a thirty-five-foot wide waterfront access easement from Town of Wakefield Zoning Board of Adjustment (ZBA) granting, with conditions, challenge a Superior Court (Fitzgerald, J.) order affirming a decision of the DUGGAN, J. Greg and Gail Taylor, trustees of Shady Acres Realty Trust,

and orally), for intervenors James F. Doyle and Charles K. McLaughlin. McNeill, Taylor and Gallo, P.A., of Dover (William L. Tanguay on the brief mistake” standard. p. 3 rejected the Taylors’ contention that the ZBA erred by applying a “legitimate

preserved for review because the Taylors failed to timely raise it before the ZBA. Doyle and McLaughlin contend that the disqualification issue was not Harringtons met the four statutory conditions for waiver; the court also Finally, the court ruled that the ZBA decision was reasonable because the applies to a “lot or other division of land,” does not apply to easements. “legitimate mistake” standard.

before it that the ZBA decision is unreasonable.

disqualified pursuant to the “juror standard” prescribed by RSA 673:14 (2006).

court also rejected the selectmen’s argument that RSA 674:33-a, I, which waiver were met; and (4) in misinterpreting RSA 674:33-a, I(b) by applying a that the evidence supports findings that the four statutory requirements for erroneous. hearing; (2) by ruling that RSA 674:33-a, I, applies to an easement; (3) in ruling

law, unless the court is persuaded by a balance of probabilities on the evidence

We first address the Taylors’ argument that Arnone should have been

(2005). recused herself pursuant to RSA 673:14, I (Supp. 2005) (amended 2007). The Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 580 court’s decision unless the evidence does not support it or it is legally ruling that Arnone should have been disqualified at the September 11, 2006 154 N.H. 26, 29 (2006); see RSA 677:6 (2008). We will uphold the superior

and reasonable and will not be set aside by the superior court absent errors of N.H. 74, 77 (2005). Factual findings of the ZBA are deemed prima facie lawful Our review in zoning cases is limited. Harrington v. Town of Warner, 152

p. 3 rejected the Taylors’ contention that ZBA member Cecile Arnone should have

On appeal, the Taylors argue that the superior court erred: (1) in not Harringtons, Doyle and McLaughlin intervened.

674:33-a, I, and granted the equitable waiver by a 3-2 vote. At the end of the meeting, the ZBA voted on each of the four criteria in RSA appeared. A representative for the town was present but did not participate.

the dimensional requirement. In affirming the ZBA’s decision to grant the waiver, the court first

appeals in superior court. The superior court consolidated the appeals and the ZBA denied both requests, and the Taylors and selectmen filed separate The Taylors and the selectmen timely filed requests for rehearing. The

public hearing at which representatives for both the Taylors and Harringtons

In 2006, the Harringtons applied to the ZBA for an equitable waiver of

the benefit of the non-shorefront lot.” an easement to be located either in its current configuration, or otherwise, for as a result of McLaughlin’s actions, she should have recused herself. p. 4 McLaughlin’s creation of the easement and because the need for the waiver was further argue that since Arnone was being asked to make findings concerning

McLaughlin personally applied and appeared before the ZBA. The Taylors

the town. The Taylors point out that Arnone always recused herself whenever

legislative intent.

ordinary meanings to the words used. the easement, and he was a party to the original enforcement action brought by Harringtons’ application fee, he was one of the parties who originally created 4 because the application clearly showed that McLaughlin’s company paid the

indifferent . . . .” RSA 500-A:12, II. RSA 500-A:12, I. It requires disqualification if “it appears that any juror is not answer upon oath if he . . . is employed by or employs any party in the case.” (2007).

Formula Dev. Corp. v. Town of Chester, 156 N.H. 177, 179

unambiguous, we will not look beyond the language of the statute to discern Greenland, 152 N.H. 617, 620 (2005). If the language used is clear and

whole. We first examine the language of the statute and ascribe the plain and member would be legislative intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiter of “in fact a party to the case.” They contend that McLaughlin was a party

may be required by the court, on motion of a party in the case to be tried, to Kimball, 136 N.H. 441, 445 (1992). The statute, in part, states: “Any juror The “juror standard” is governed by RSA 500-A:12 (1997). See Dover v.

the same matter in any action at law.” RSA 673:14, I (emphasis added).

in the outcome which differs from the interest of other citizens, or if that shall be disqualified “if that member has a direct personal or pecuniary interest she was a former employee of McLaughlin and was aware that McLaughlin was Disqualification is governed by RSA:673:14. It provides that a member

The Taylors argue that Arnone should have been disqualified because

that the issue of disqualification was timely raised. contrary evidence. Thus, we conclude the superior court was correct in ruling conflict only after the ZBA voted on the application. The record reveals no The superior court found that the Taylors first learned of Arnone’s potential issues in administrative appeals to be “raised at the earliest possible time”). Fox v. Town of Greenland, 151 N.H. 600, 604 (2004) (requiring disqualification preserved for review because they raised it “at the earliest possible time.” See disqualification of Arnone in their motion for rehearing, the issue was The superior court ruled that, although the Taylors first raised purchaser for value;

p. 5 criteria set forth in RSA 674:33-a, I, were met.

had been subdivided by conveyance to a bona fide or until after a lot or other division of land in violation structure in violation had been substantially completed,

concern” that Arnone was “in any way biased toward McLaughlin.” land, we conclude that the superior court erred in finding that the four specific concluded that the ZBA members present at the initial hearing had “no

representative, or municipal official, until after a

issue, because even assuming that the easement is a lot or other division of issue when the ZBA considered the Taylors’ motion for rehearing. He

any owner, former owner, owner’s agent or

finding that Arnone was not required to recuse herself. 5 meet four criteria:

division of land, RSA 674:33-a, I, does not apply. We need not decide this upon the Taylors’ contention, the ZBA chairman addressed the disqualification

(a) That the violation was not noticed or discovered by

matter in any action at law. Accordingly, we uphold the superior court’s would disqualify Arnone as a juror were she sitting upon a trial of the same To receive an equitable waiver under RSA 674:33-a, I, an applicant must

application fee in their request for rehearing. Thus we address only this claim.

The Taylors next contend that because an easement is not a lot or other Taylors did not allege that Arnone was not indifferent. Nonetheless, based

for good cause shown shall allow the appellant to specify additional grounds”). We find no other evidence in the record, nor do the Taylors cite any, that

673:14, II. This ruling is supported by the record. disqualification, the Taylors argued only that McLaughlin’s company paid the See RSA

she was McLaughlin’s former employee.

With respect to McLaughlin’s company paying the application fee, the A:12 does not disqualify former employees McLaughlin and because McLaughlin was not a party. On its face, RSA 500shall be urged, relied on, or given any consideration by a court unless the court See RSA 677:3 (2008) (“no ground not set forth in the [request for rehearing]

Of the three additional arguments raised on appeal for Arnone’s

Taylors’ argument that Arnone should have been disqualified merely because “not indifferent.” Thus we affirm the superior court’s ruling rejecting the

herself because, at the time of the ZBA hearing, she was not an employee of The superior court found that Arnone was not required to disqualify to require the violation to be corrected.

p. 6 public benefit to be gained, that it would be inequitable

the violation, the cost of correction so far outweighs any

investment made in ignorance of the facts constituting

(d) That due to the degree of past construction or

any such property; and

adversely affect any present or permissible future uses of

misinterpretation of the ordinance by an owner constituted the error in

value of other property in the area, nor interfere with or constitute a public or private nuisance, nor diminish the (c) That the physical or dimensional violation does not

a municipal permitting official in interpreting or applying the ordinance.

owner or owner’s agent. The Harringtons argue that the original

in measurement or calculation by the owner or owner’s agent; or (2) an error by equitable waiver must have been caused by one of two conditions: (1) an error absent certain conditions, the violation for which the applicant seeks an

before us is whether the violation was caused by an error in calculation by the mathematical processes,” Webster’s Third New International Dictionary 351 an error in measurement by an owner or owner’s agent. Thus, the question Dictionary of the English Language 209 (1966), or “[t]o answer or determine by result of a municipal permitting official’s misinterpretation of the ordinance or means to “[a]scertain by mathematical methods, compute,” Random House Lambert v. Belknap County Convention, 157 N.H. 375, 378 (2008). “Calculate” might have said or add language that the legislature did not see fit to include. over which that official had authority; When interpreting a statute, we will not consider what the legislature a municipal official in the process of issuing a permit error in ordinance interpretation or applicability made by disagree. waiver, we need address only RSA 674:33-a, I(b). That subsection states that calculation on the owner’s part and therefore falls within the statute. We

RSA 674:33-a, I(b). The Harringtons do not contend that the violation was the

calculation made by an owner or owner’s agent, or by an

Because a party must meet all four requirements to be eligible for a

a finding that the Harringtons met any of the four statutory criteria. RSA 674:33-a, I(a)-(d). The Taylors contend that the evidence does not support

by either a good faith error in measurement or owner's agent or representative, but was instead caused misrepresentation, or bad faith on the part of any owner,

of the law or ordinance, failure to inquire, obfuscation, (b) That the violation was not an outcome of ignorance outlined in the statute] are made: a) lack of discovery; b)

p. 7 meet the required standards: 7 (ZBA) may grant [a waiver] only [if the] applicant can

(Emphasis added.) its published instructions for persons applying for an equitable waiver. Titled

by a legitimate mistake. may grant a waiver only if each of the four findings [as ignorance of the law or bad faith but was instead caused

interpreting a zoning ordinance is not. 2. The nonconformity was not an outcome of

. . . . ordinance was “not an outcome of . . . bad faith but [was] the result of a

For an Equitable Waiver to be legally granted, the Board

Instructions and Information, outweighs any public benefit. the ZBA publication states in part: APPLICATION FOR EQUITABLE WAIVER OF DIMENSIONAL REQUIREMENT,

Doyle and McLaughlin also note that the ZBA uses similar language in

[RSA 674:33-a, I(c) and (d)] to grant the waiver.” a physical layout or dimensional requirement the ZBA Id. at 48 (emphasis added). certain municipal officials is included in the statute, an owner’s error in legitimate mistake. . . [then] the board can move on to the additional findings

pursuant to RSA 674:33-a, I(b), the OEP further states that if violation of the Id. at 24 (emphasis added). In describing the procedure to grant a waiver New Hampshire Office of Energy and Planning (OEP), titled, mistake. To support this position, they point to a recent publication from the construe RSA 674:33-a, I(b) as encompassing an owner’s honest or legitimate property; and d) the cost of correcting the mistake

honest mistake; c) no diminution in value or surrounding

When a lot or structure is discovered to be in violation of overall purpose . . . .”). Although an error interpreting a zoning ordinance by

In this handbook, the OEP writes: owner’s misinterpretation of zoning ordinances. Adjustment in New Hampshire, A Handbook for Local Officials (March 2008).

Doyle and McLaughlin argue that state and local officials commonly

N.H. at 620.

at 179 (“We will . . . construe all parts of the statute together to effectuate its

“error in calculation” does not lend itself to an interpretation that includes an (unabridged ed. 2002). Viewed in the context of the entire subsection, the term this decision does not foreclose them from seeking those or other remedies.

p. 8 met. Accordingly we need not address the parties’ other arguments.

granted. These options are presumably still available to the Harringtons and 8

supported the ZBA’s finding that the requirements of RSA 674:33-a, I(b) were

there can be no equitable waiver. calculation. Because neither requirement of RSA 674:33-a, I(b) is satisfied, owner’s agent created the easement as a result of an error in measurement or alternatively, an appeal of administrative decision if the waiver was not to applying for an equitable waiver, the Harringtons applied for a variance or, BRODERICK, C.J., and DALIANIS, GALWAY and HICKS, JJ., concurred. under the narrow requirements of RSA 674:33-a, I(b). We note that in addition

when making both purchasing and improvement decisions because they are innocent purchasers for value who relied upon the easement We conclude that the superior court erred in finding that the evidence

easement. The record also does not support a finding that the owner or

This may be true, but, based upon the record before us, relief is not available a diminution of enjoyment and value in their real property without the waiver.

mistake” standard encompasses more than the plain language of RSA 674:33- The intervenors argue that the Harringtons are entitled to equitable relief officials, may be honest or legitimate mistakes. However, the “legitimate

a, I(b) is overly broad. mistake” or “legitimate mistake” in describing the requirements of RSA 674:33part of any municipal official. Private parties created the nonconforming or applying the ordinance when the easement was created, it was not on the According to the record, if there was any good faith error in interpreting

errors in ordinance interpretation or applicability made by certain municipal Certainly, innocent errors in measurement or calculation by an owner, or

statute considered as a whole, we find that the use of the term “honest As the final arbiter of legislative intent as expressed in the words of the