2012-428, Charles A. Roberts v. Town of Windham

Bernstein, Shur, Sawyer & Nelson, P.A., of Manchester (Gregory E.

No. 2012-428 Rockingham

undisputed. The petitioner owns an approximately one-acre parcel of land on The following facts are supported by the record or are otherwise

Superior Court (Delker, J.) affirming a decision of the Town of Windham Zoning

Town of Windham (Town). We affirm. page is: http://www.courts.state.nh.us/supreme. 2012) to reverse the administrative merger of certain lots by the respondent, a.m. on the morning of their release. The direct address of the court's home Board of Adjustment (ZBA) denying his request under RSA 674:39-aa (Supp. reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 CONBOY, J. The petitioner, Charles A. Roberts, appeals an order of the

the brief and orally), for the respondent. Beaumont & Campbell Prof. Ass’n., of Salem (Bernard H. Campbell on

petitioner. Michael and Christopher G. Aslin on the brief, and Mr. Michael orally), for the

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 chain of title applied to the Town to merge the lots. See, e.g., RSA 674:39-a p. 2 single street address. Neither the petitioner nor any previous owner in the

a single lot: they were designated as a single lot for tax purposes and given a

In the 1960s, the Town apparently administratively merged the lots into

Property was conveyed to the petitioner.

Property as it exists today, consisting of lots 8 through 14. In 1995, the

referred to simply as “lot 14”). Thus, as of 1962, Ruth Roberts owned the

lot 13 and one half of lot 14 (for ease of reference, partial lot 14 is hereinafter conveyed them to Ruth Lane Roberts. In 1962, Ruth Roberts acquired title to In 1927, Lane conveyed all of the lots to Alice Lane, who subsequently

single driveway provides access from Cobbetts Pond Road to lot 10 over lot 9. dock. The bunkhouse straddles the boundary line between lots 9 and 8. A “multi-use building” (the bunkhouse), woodshed, privy, dog house, and another

9. Thus, one must traverse lot 9 to access the garage. On lot 9, Lane built a

two inches from the boundary line between lots 10 and 9 and faces toward lot seasonal cottage extends across the boundary line onto lot 11. The garage is built a seasonal cottage, a garage/workshop, a screen room, and a dock. The

Lane built structures on all of the lots except lot 12. On lot 10, Lane

“lot 8”). of lot 8 (for ease of reference, partial lot 8 is hereinafter referred to simply as 1920, Horne also deeded lot 12 to Lane. In 1926, Lane also obtained a portion

Windham . . . meaning and intending to convey lots #9, #10, and #11.” In

certain tract or parcel of land situate on the shore of Cobbetts Pond in certain conditions. RSA 674:39-aa, II. “‘Involuntary merger’ . . . mean[s] lots petitioner’s grandfather, George E. Lane. Specifically, the deed conveyed “[a] In 1918, Horne conveyed lots 9 through 11, by a single deed, to the

“restored to their pre-merger status” upon request of the owner, subject to

that were “involuntarily merged prior to September 18, 2010,” shall be In 2011, the legislature enacted RSA 674:39-aa, which provides that lots Cobbetts Pond. her approximately 12.5-acre, nineteen-lot subdivision along the shore of and 14). The Horne plan was recorded by Clara B. Horne in 1913, and depicts

approved lots to merge them by application to a town planning board). (Supp. 2012) (allowing an owner of two or more contiguous and preexisting of Deeds (the Horne plan): five full lots (9 through 13) and two partial lots (8

on the 1913 “Plan of Horne Heirs” recorded in the Rockingham County Registry 1960s. The Property originated, however, from seven separate lots as shown has apparently been so identified since the Town developed its tax maps in the

Property). The Property is identified as a single lot on the Town’s tax map and Cobbetts Pond Road with frontage on Cobbetts Pond in Windham (the p. 3 ZBA. See RSA 674:39-aa, III; RSA 676:5 (Supp. 2012). The ZBA affirmed the The petitioner appealed the decision regarding lots 8 through 11 to the

lot 10 is close to the lot 9 boundary line and is accessed from lot 9.

common and typical practice on a “waterfront estate,” and that the garage on driveway, that construction of ancillary buildings such as the bunkhouse is a Specifically, the Selectboard noted that lots 8 through 11 are served by a single

action to merge the lots based upon the physical layout of the structures.

deed. Second, the Selectboard determined that the Town proved overt owner the fact that lots 9 through 11 were conveyed to Lane as one “tract” in a single lots 8 through 11 rested upon two grounds. First, the Selectboard relied upon

The Selectboard’s decision denying the petitioner’s request to unmerge standard of review. Typically, judicial review in zoning cases is limited. Brandt

The petitioner first argues that the superior court applied an incorrect

The petitioner moved for a rehearing, see RSA 677:3 (2008), which the of law unless it is persuaded by the balance of probabilities, on the evidence lot, the owners voluntarily merged the lots.

voluntary merger. See RSA 674:39-aa, II(b). a lot line.” RSA 674:39-aa, I(c). The municipality bears the burden to prove denied the petitioner’s request to unmerge the four lots. concluded that lots 8 through 11 had been voluntarily merged and, thus, Town had involuntarily merged lots 12-14. The Selectboard, however, court, see RSA 677:4 (Supp. 2012), which affirmed the ZBA’s decision. This

zoning board’s decision will not be set aside by the superior court absent errors additional reason: that by accepting the Town’s taxation of the lots as a single findings of a zoning board are deemed prima facie lawful and reasonable, and a Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553, 555 (2011). The factual

an owner regarded said lots as merged such as, but not limited to, abandoning appeal followed.

Selectboard held a meeting to consider the application and determined that the ZBA denied. The petitioner then appealed the ZBA’s decision to the superior

Selectboard’s decision for the reasons found by the Selectboard, as well as an

requested under RSA 674:39-a, or “any overt action or conduct that indicates lots.” RSA 674:39-aa, II(b). “Voluntary merger” means a merger expressly such restoration if “any owner in the chain of title voluntarily merged his or her lots consisting of: lots 8 and 9; lots 10 and 11; lot 12; and lots 13 and 14. The single lot designation on the Town’s zoning and tax maps and to create four Board of Selectmen (Selectboard) seeking to “unmerge” the lots from their

the consent of the owner.” RSA 674:39-aa, I(a). An owner is not entitled to merged by municipal action for zoning, assessing, or taxation purposes without

Following the statute’s passage, the petitioner applied to the Windham party’s duty to prove a disputed assertion or charge,” Black’s Law Dictionary p. 4 proof and an appellate tribunal’s standard of review. A burden of proof is “[a]

The petitioner’s argument conflates two concepts: a party’s burden of

to the [superior court].” We disagree. legislature “necessarily also altered the deferential standard of review on appeal

concludes that by “shifting the burden of proof to municipalities,” the

upon inconclusive facts in order to block unpopular applications. He legislature sought to prohibit municipalities from “inventing” mergers based by placing the burden of proof on municipalities to prove voluntary merger, the

See id. 674:39-aa, II(b). The municipality has the burden to prove voluntary merger. “any owner in the chain of title voluntarily merged his or her lots.” RSA

right of land owners to use their land for reasonable purposes. He argues that

their premerger status. However, RSA 674:39-aa prohibits restoration of lots if propriety of an order, finding, or judgment entered by a lower [tribunal],” id. at

balance the right of municipalities to regulate land use and the constitutional

owner of involuntarily merged lots, at the owner’s request, to restore the lots to appellate [tribunal] . . . measures the constitutionality of a statute or the the owner.” Laws 2010, 345:1. In addition, RSA 674:39-aa, II entitles an 223 (9th ed. 2009), whereas a standard of review is “[t]he criterion by which an from merging “preexisting subdivided lots or parcels except upon the consent of lots to request restoration under RSA 674:39-aa, the legislature sought to involuntarily merging lots under RSA 674:39-a and allowing owners of merged The petitioner contends that by prohibiting municipalities from

a statute considered as a whole. Radziewicz v. Town of Hudson, 159 N.H. 313, We are the final arbiters of the legislature’s intent as expressed in the words of In 2010, the legislature amended RSA 674:39-a to prohibit municipalities Resolving this issue requires that we engage in statutory interpretation. which we review de novo. See Radziewicz, 159 N.H. at 316.

that it used those words advisedly. See DaimlerChrysler Corp. v. Victoria, 153

have said or add language that the legislature did not see fit to include. Id. We

and ordinary meaning to the words used. Id. We interpret legislative intent

N.H. 664, 667 (2006). The interpretation of a statute is a question of law,

also presume that the legislature knew the meaning of the words it chose, and

from the statute as written and will not consider what the legislature might before it, that the zoning board decision is unlawful or unreasonable. Id.; see

316 (2009). When examining the language of a statute, we ascribe the plain

the voluntary merger of lots. aa altered the deferential standard of review with respect to the issue of proving decision. The petitioner contends, however, that the enactment of RSA 674:39- RSA 677:6 (2008). The superior court applied this standard to the ZBA’s p. 5 ZBA’s decision. See RSA 677:6.

statute in light of its overall purpose, see Atwater v. Town of Plainfield, 160

court did not err in applying our usual deferential standard of review to the benefit the petitioner’s property rights. Thus, we conclude that the superior RSA 674:39-aa an alternate standard of review merely because to do so might unless the evidence does not support it or it is legally erroneous. Brandt Dev. review of the ZBA’s decision, is limited: we will uphold the court’s decision satisfy the Town’s burden. Our review of the superior court’s decision, like its 5

property rights does not change our interpretation. Although we interpret a The fact that one of the goals of the statute may be to protect individual it.” Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 647 have reached the same decision as the trial court based on the evidence before

pretext of pursuing its spirit.” (Quotation omitted)). Here, we will not read into

through 11 because the evidence before the Selectboard was insufficient to

(2000) (quotation omitted).

677:6. sufficiency of the evidence, we consider “whether a reasonable person could Co., 162 N.H. at 555. When, as here, the appealing party challenges the

free from ambiguity, the letter of the statute may not be disregarded under the

language, cf. 2A N. Singer & J.D. Singer, Statutes and Statutory Construction ZBA’s decision to affirm the Selectboard’s finding of “voluntary merger” of lots 8 Next, the petitioner argues that the superior court erred by upholding the

to alter the deferential standard of review applicable in zoning cases under RSA

§ 46:1, at 148-49 (7th ed. 2007) (“Where the words of the statute are clear and reasonable doubt. See RSA 625:10 (2007). Yet, if the State carries its burden, State in a criminal case bears the highest burden of proof at trial: beyond a N.H. 503, 508 (2010), in so doing, we do not ignore the statute’s plain

to the State, could have found guilt beyond a reasonable doubt.”). finder at trial, viewing all of the evidence presented in the light most favorable

159 N.H. at 316, we do not construe the plain language of RSA 674:39-aa, II(b) words to a statute that the legislature did not see fit to include, see Radziewicz, advisedly, see DaimlerChrysler Corp., 153 N.H. at 667, and we do not add legislature understood the meaning of the words it chose and used those words provision for an alternate standard of review. Because we presume the standard of review applied on appeal. As the superior court aptly noted, the municipality to prove voluntary merger; however, the statute makes no 1535. That a party bears the burden of proof at trial does not dictate the Here, RSA 674:39-aa expressly places the burden of proof on the

sufficiency of the evidence, the defendant must prove that no rational fact State v. Hull, 149 N.H. 706, 712 (2003) (“To prevail on a challenge to the the standard of review on appeal is often deferential to the State. See, e.g., did not regard the lots as separate. See RSA 674:39-aa, I(c). We disagree with

p. 6 lot 10. A reasonable interpretation of the placement of the garage is that Lane

lot 9. Further, a single driveway leads from Cobbetts Pond Road over lot 9 to but also so that it faced toward lot 9. To access the garage, one must traverse Lane constructed the garage on lot 10 not only within two inches of lot 9,

finding of voluntary merger. We disagree. on the survey. Thus, he argues that such evidence is insufficient to support a – may have believed that the garage was farther from the lot line than shown

property as separate lots because Lane – the owner who constructed the garage

petitioner argues that it is also consistent with an intent to maintain the

merger. See Hill v. Town of Chester, 146 N.H. 291, 294 (2001) (“[T]he method taxation as a single lot does not, standing alone, support a finding of voluntary convey lots #9, #10, and #11.” We also acknowledge that the acquiescence to

near the lot line may be consistent with an intent to merge the lots, the intent. For example, although he concedes that the placement of the garage conjecture and speculation could the Town demonstrate the prior owners’

The deed specifically provided that Horne was “meaning and intending to

facts do not support a finding of voluntary merger and that only through

single deed does not, standing alone, support a finding of voluntary merger. We agree that Horne’s conveyance of lots 9 through 11 as one tract in a

common and typical of a “waterfront estate.” The petitioner argues that these share a driveway; and that ancillary buildings, such as the bunkhouse, are constructed within two inches of lot 9 and faces toward lot 9; that the lots

is not to determine whether any contrary conclusions could possibly be drawn in itself, indicate an intent to ignore the separate lot designations.”

court’s decision. It upheld the finding that the garage on lot 10 was

farther from the lot line renders the evidence inconclusive. Our role on appeal “[t]he fact that [Horne] conveyed separate parcels of land in one deed does not, structures and upon the owners’ acquiescence to taxation, but concluded that superior court relied upon the physical characteristics of the lots and their

The lots’ physical characteristics, however, were central to the superior

single lot; the Selectboard nonetheless “unmerged” lots 12-14. the petitioner that the possibility that Lane may have believed the garage was

taxation of the Property as a single lot. In upholding the ZBA’s decision, the

questions.”). As the petitioner notes, lots 8 through 14 were all taxed as a

affirmed based upon those two factors and the owners’ acquiescence to and the physical characteristics of the lots and their structures. The ZBA original conveyance by Horne of lots 9 through 11 as one tract in a single deed,

by which a town taxes its land is not dispositive in determining zoning

of proving “overt action or conduct” to merge lots 8 through 11 based upon the As noted above, the Selectboard found that the Town satisfied its burden that he does not brief. Thus, it is deemed waived. See In re Estate of King, 149 p. 7 As a final matter, the petitioner raises an issue in his notice of appeal

unlawful or unreasonable.

we hold that the superior court’s decision affirming the ZBA’s decision is not predecessors voluntarily merged the lots under RSA 674:39-aa. Accordingly, totality of the evidence reasonably supports a finding that the petitioner’s

decision, the court considered “the use of the property in its entirety.” The

was it required to under RSA 674:39-aa. Instead, in affirming the ZBA’s merger.” However, the superior court did not analyze each use in isolation, nor explanations for why each individual use does not constitute “voluntary

In his brief, the petitioner parses each of these uses and offers

Affirmed.

owners intended to merge the lots. single driveway to serve multiple lots supports the conclusion that the prior with evidence of the placement of the garage and bunkhouse, the use of a

estate,” thereby evincing an intent to use the lots as one. See Webster’s Third

may not be indicative of an intent to merge lots, when viewed in conjunction DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred.

be used in conjunction with the seasonal cottage as part of a “waterfront N.H. 226, 230 (2003). cottage, it is not unreasonable to conclude that the structure was intended to the structure’s classification as a “bunkhouse,” and not as an additional

persons such as “ranch hands”). Finally, although a shared driveway alone

“multi-use” structure known as the “bunkhouse” on lots 9 and 8. Because of

reasonable. See Mt. Valley Mall Assocs., 144 N.H. at 647. as “a rough[,] simple building providing sleeping quarters,” as used to house from the evidence; instead, we determine whether the conclusions so drawn are New International Dictionary 297 (unabridged ed. 2002) (defining “bunkhouse”

garage. The “seasonal cottage” sits on both lots 10 and 11, and Lane built a Additionally, the superior court relied on more than the placement of the