2017-0501, Rochester City Council v. Rochester Zoning Board of Adjustment

The ZBA did not participate in this appeal. 1

We affirm. exercised its discretion in denying the plaintiff’s motions to e xpand t he r ecord. the ZBA’s decision to grant a variance to the Toy s; and (2) unsustainably Toy. On appeal, the p laintiff argues that the trial court: (1) erred in affirming 1 Board of Adjustment’s grant of a variance to defendants Donald and Bonnie Superior Court (Howard, J.) affirming defendant City of Rochester Zoning L YNN, C. J. The plaintiff, Rochester City Council, appeals an order of the

the memorandum of law and orally), for defendant s Donald and Bonnie Toy. Donald F. Whittum Law Office PLLC, of Rochester (Donald F. Whittum on

the plaintiff. Terence M. O’Rourke, city attorney, of Rochester, by brief and orally, for

ROCHESTER ZONING BOA RD OF ADJUSTMENT & a.

No. 2017 - 0501 Strafford

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, Concor d, 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 p. 2 22 as 2

Lot 54 - 1 to persons aged 55 or older. They expected the age restriction to limit revenue for Rochester. The Toys agreed to restrict ownership of the units in estimated that the proposed 14 units would generate $75,000 of annual tax Estates were valued at between $150,000 and $180,000 each, and they The Toys stated that the existing manufactured housing units in Addison

Somersworth. services, except for water. The water supply would connect to a main from project would include 14 units, which would be serviced by private utilities and Alexandria Lane in Addison Estates and extending into Lot 54 - 1. The proposed The Toys proposed to construct a cul - de - sac originating at a point on

565 feet east of Lot 54 - 1. border. A nother mobile home park is located in Somerswort h approximat ely raz ed. A mobile home park, Amazon Park, abuts Lot 54 - 1 on its northeasterly small lot that contains a single family dwelling that is in the process of being northwest and east of Lot 54 - 1 is undeveloped. T o the southeast, there is a Addison Estates abuts Lot 54 - 1 to the west. Most of the land to th e

northern third of Lot 54 - 1 difficult to develop. wetlands, and the wetlands and the challenging topography render the approximately 5 p. 2 25 feet. The northern third of Lot 54 - 1 co ntains significant approximately 2100 feet, ultimately bordering on Whitehouse Road for Lot 54 - 1 then widens and narrows in various places over the course of the next while maintaining its width of approximately 74 feet, forming a “panhandle.” for a distance of approximately 74 feet. Lot 54 - 1 extends northerly 480 feet, followi ng evidence. The southern edge of Lot 54 - 1 runs along Old Dover Road and opposed the variance. During the hearing, t he Toys presented the September 14, 2016. The plaintiff, through counsel, appeared at the hearin g The ZBA conducted a public hearing on the Toys’ variance request on

(amended p. 2 2018). manufactured housing park on to Lot 54 - 1. See RSA 674:33, I(b) (2016) Estates. I n August 2016, they applied for a variance to expand the ir In 2015, the Toys purchased a 22 - acre lot (Lot 54 - 1) that abuts Addison

anywhere in the city. ordinance that eliminated manufactured housing parks as permitted uses In April p. 2 2014, t he Rochester Cit y Council passed an updated zoning

provide “for maintenance of all of the private utilities within the subdivision.” The Toys installed an on - site sewage disposal system in Addison Estates and Addison Estates contains p. 2 25 approved lots, 15 of which are built and occupied. manufactured housing park known as “Addison Estates” in Rochester. The pertinent facts are as follow s. The Toys own a 14.5 - acre p. 3 )

(amended 2018 p. 3 ). provisions of the ordinance would result in an unnecessary hardship. RSA 674:33, I(b) (2016 (4) the values of surrounding properties are not diminished; an d (5) literal enforcement of the public interest; (2) the spirit of the zoning ordinance is observed; (3) substantial justice is done; The ZBA may grant an applicant a variance if: (1) the variance will not be contrary to the 2

raised at the earliest possible time in order to allow the local board to address The trial court observed that “conflict o f interest or bias issues must be

clarify, explain, or augment the record before the ZBA relating to the variance.” was at no time raised in the proceedings below — and which does nothing to was “attempting to intr oduce into the record an entirely new issue — one that interest, bias, or improper conduct.” Thus, the court ruled that the plaintiff the ZBA,” but rather is “evidence of [the ZBA chairman’s] potential conflict of found that the requested evidence “does not go to the issues that were before of the board where the record is incomplete.” (Citations omitted. p. 3 ) T he court purpose of the additional evidence is to assist the court in evaluating the action certified record even though such evid ence was not before the board, the within the discretion of the trial court to allow additional evidence beyond the In denying the plaintiff’s motions, the court stated that “[w]hile it is

The court denied both motions. because he was upset with the change to the Rochester Zoning Ordinance.” that the only reason he voted to approve the variance granted to [the Toys] was second motion sought to introduce evidence that the ZBA chairman “stated an official meet ing as defined by RSA 91 - A:2 - a (2013 p. 3 ) (amended 2018). The members discussed the merits of the plaintiff’s motion for rehearing outside of chairman is a longtime friend and associate of the Toys; and (5) the ZBA change; (3) the ZBA chairman attempt ed to change the ordinance; (4) the ZBA “mobile home parks” in Rochester and was “aggrieved” by the ordinance against the 2014 zoning ordinance changes; (2) the ZBA chairman owns official record,” including evidence that: (1) the ZBA chairman sp oke out introduce evidence of “conduct by the ZBA . . . that exist [s] outside of the plaintiff filed two motions to expand the record. The first motion sought to contravention of RSA 674:33, I(b)(5). Before the court heard the appeal, t he arguing that the ZBA granted a variance without finding hardship, in denied. Pursuant to RSA 677:4 (2016), t he p laintiff appealed to the trial court, I n October 2016, the p laintiff filed a motion for r ehearing, which the ZBA

supporting the other four statutory requirements. 2 requirement of RSA 674:33, I (b p. 3 ), but the ZBA did make brief findings did not explicitly address whether t he Toys satisfied the unnecessary hardship The ZBA gra nted the Toys’ variance requ est. The ZBA’s written decision

minimizing the potential impact on city services. the likelihood that school - age children w ould live in the development, thereby p. 4 4

expand the record. We address each argument in turn. unsustainably exercised its discretion in denying the p laintiff’s motions to based on the evidence before it. The p laintiff additionally argues that the court could not have affirmed the ZBA because the ZBA was un able to f i nd hardship considered the wisdom of the 201 p. 4 4 ordinance in granting the variance; and (5) (4) f ailed to address the p laintiff’s argument that the ZBA impermissibly ZBA’s decision for clarification; (3) substituted its own judgment for the ZBA’s; assumed determination; (2) failed to accept additional evidence or remand the assumed the ZBA made a hardship determination and then deferred to that On appeal, t he p laintiff argues that the trial court erred because it: (1)

of a variance.” This appeal followed. a special condition that renders this property unique in Rochester for purposes permitted uses city - wide, the proximity to existing manuf actured home parks is zoning ordinance removes manufactured housing parks from the inventory of ruled that “the ZBA could have reasonably determined that because the new requires the type of devel opment” that the Toys proposed. The court further contains wetlands and challenging topographical features, the lot essentially concluded that, “because the lot is irregularly and uniquely shaped, and The court then determined that the ZBA could have reasonably

erroneous. the ZBA’s failure to make specific findings of fact on hardship was not whether the evidence supports the decision.” Thus, the court concluded that examine the record and, employing [a] deferential standard . . . determine when an application is granted, [the trial court’s] obligation on appeal is to The court further ruled that, “[i] n the absence of an express finding of hardship none have been requested” and that “the ZBA considered the hardship issue.” that “the ZBA is not obligated to make specific findings of fact where, as here, and “made no findings with respect to unnecessary hardship.” The court ruled because the ZBA “did not seriously consider the unnecessary hardship prong” court rejected the plaintiff’s argument that the ZBA’s decision was erroneous Following a hearing, t he trial court affirmed the ZBA’s decision. T he

introduced on appeal for the first time. error in its own proceedings,” the court declined to allow the evidence to be raised bef ore the ZBA in order to allow [the ZBA] the opportunity to correct a ny at the time it filed its motion for rehearing.” Because “[t]he issue [was not] determined that the plaintiff “clearly had knowledge of the grounds for recusal invit ed board members to identify any potential conflicts.” The court “raise[] the issue with the ZBA, even though the minutes reflect that the Chair plaintiff’s attorney was present at the September 2016 hearing but did not cited predated the September 2016 hearing. Moreover, the court noted that the allegedly made was in February 2017, all of the other evidence th at the plaintiff them.” The court found that, although one statement that the ZBA chairman p. 5 5

court looked to the record to determine whether there was sufficient evidence Hunters’ Club, 149 N.H. at 670. Consistent with this standard of review, t he evidence upon which it could have been reasonably based. See Lone Pine unnecessary hardship, the court’s role was to determine whether there was The trial court correctly ruled that, i n reviewing this implied finding of

the ZBA’s decisi on to grant the Toys a variance. ZBA made a finding of unnecessary hardship, which was necessary to support fact from the ZBA. Accordingly, the court did not err when it assumed that the N.H. 307, 310 (2007). Here, the plaintiff did not request specific findings of and of itself error.” Kalil v. Town of Dummer Zoning Bd. of Adjustment, 1 p. 5 55 the absence of findings, at least where there is no request therefor, is not in findings of fact by a board of adjustment may often facilitate judicial review, unnecessary hardship was not an error: “[a] lthough disclosure of specific unnecessary hardship. T he ZBA’s failure to explicitly make a finding regarding application, and that the ZBA discussed whether the Toys had demonstrated record shows that the Toys addressed unnecessary hardship i n their variance did not explicitly address unnecessary hardship in its written decision, the subsidiary findings necessary to support its decision). Here, a lthough the ZBA N.H. 502, 508 (2008) (noting that we assume that the trial court made all Hooksett, 153 N.H. 717, 724 (2006); cf. Smith v. Lillian V. Donahue Trust, 157 carries with it an implicit finding of hardship. See Thomas v. Town of T he trial court correct ly recognized that the ZBA’s grant of a variance

to this assumed determination of hardship. We are not persuade d. argues that the court further erred by appl ying a deferential standard of review that it “must assume that the ZBA made that determination.” The plaintiff not made a [hardship] determination,” but then “went a step too far in stating The plaintiff first argues that the trial court “recognized that the ZBA had

(1978). ‘super zoning board.’” See Cook v. Town of Sanbornton, 118 N.H. p. 6 668, 671 Lone Pine Hunters’ Club, 149 N.H. at 670. The trial court does not sit “as a whether there is evidence upon which they could have been reasonably based.” agrees with the zoning board of adjustment’ s findings, but to determine 677:6 (2016). “The review by the superior court is not to determine whether it findings are deemed prima facie lawful and reasonable.” Id. at 6 70; see RSA the ZBA made findings upon questions of fact properly before the court, those unlawful or unreasonable.” Id. at 6 69 - 70 (quotation omitted). “To the extent determination of whether, on the balance of the probabilities, the decision was reviewing the decision of a zoning board of adjustment, is limited to a Town of Hollis, 149 N.H. 668, 669 (2003). “For its part, the trial court, in unsupported by the evidence or legally erroneous.” L one Pine Hunters’ Club v. “We will uphold the superior court’ s decision on appeal unless it is 6

[ZBA Member]: It is what it is. THE CHAIRMAN: Well, anyway, enough talk. before, so. [ZBA Member]: And we’ve cancelled cases because of hardship a storage shed five feet from the line, there’s no hardship there. to any case if you want to look at it that way. If a guy wants to put never been. Of the 17, 18 years I’ve been here, there’s no hardship THE CHAIRMAN: Well, when you look at that case, there has [ZBA Member]: That there is not hardship. There isn’t. THE CHAIRMAN: What’s that? [ZBA Member]: The [plaintiff’s] attorney did bring up something.

discussion between the ZBA members: find hardship to issue a variance, the plaintiff relies upon the following In support of its contention that the ZBA decided that it did not need to

hardshi p. for that of the ZBA when it determined that the ZBA had found unnecessary pl aintiff contends that the court impermissibly substituted its own judgment determination” that the Toys had proven unnecessary hardship. Thus, the not need to find hardship to issue a variance” a nd “specifically made no judgment for the ZBA’s. The plaintiff a sserts that the ZBA “decided that [it] did The plaintiff next argues that the trial court erred by substituting its own

upon the decision and record before it. unsustainably exercise its discretion by choosing to conduct its review based unclear, on the record before us we conclude that the trial court did not evidence or remanded to the ZBA for clarification if it found the decision to be at 310, 312. Thus, although the trial court here could have taken additional it, take additional evidence, or remand the case to the ZBA for clarification. Id. the court could conduct its review based upo n the decision and record before options. See Kalil, 155 N.H. at 310. Consistent with its statutory authority, decision that the court found unclear and that lacked findings, had several disagree. In Kalil, we stated that the superior court, when reviewing a ZBA additional evidence or remanded the case to the ZBA for clarification. We finding in regard to unnecessary hardship, the trial court should have accepted The p laintiff next argues that because the ZBA did not expl icitly make a

trial court did not err. to support the ZBA’s finding of hardship. Accordingly, we conclude that the p. 7 7

whether to grant the Toys a variance. contention that the ZBA i mpermissibly considered the wisdom of the ordinance in deciding stated: “but we’re not going to get into that.” Thus, none of this evidence supported the plaintiff’s ZBA] can bring up how [the ordinance] was rewritten in the first place.” But the chairman then reason. The plaintiff also cited the fact that the ZBA chairman s tated at the hearing that “[the the new ordinance is immaterial to whether the ZBA granted a variance for a non - statutory Rochester Zoning Ordinance” at the ZBA hearing. However, the fact that the Toys disagreed with The plaintiff cited the fact that the Toys expressed their “disagreement with the changes to the 4 that the Toys had not met their burden of proof on that required prong.” [plaintiff’s] objection, the ZBA remained silent on the hardship element, [which was] an admission For the same reasons, we find unpersuasive the plaintiff’s argument that, “[w]hen faced with the 3

address the issue for the first time on appeal. available. Therefore, we conclude that the court did not err in declining to 4 evidence, even though, as the trial court observed, suc h evidence was readily for rehearing, but the reference was unaccompanied by any supporting September 2016 ZBA hearing. The plaintiff did allude to the issue in its motion trial court that the plaintiff did not raise this issue before the ZBA during the N.H. 1 p. 7 71, 174 (2005). Based upon our review of the record, we agree with the rehearing.” McDonald v. Town of Effingham Zoning Bd. of Adjustment, 152 ground for appeal that was not first presented to the ZBA in a motion for “Unless the superior court finds ‘good cause,’ it may not consider any

for the first time on appeal. motion for rehearing. Accordingly, the court declined to address this argument did not raise this argument during either the hearing or in the p laintiff’s argument on this point predated the September 2016 ZBA hearing, the plaintiff noted that, although almost all of the plaintiff’s evidence supporting its argument in denying the p laintiff’s motions to expand the record. The court parks.” Contrary to the plaintiff’s assertion, t he trial cou rt addressed this the ZBA disagreed with the Zoning Ordinance concerning manufactured home plaintiff’s argument that the ZBA “impermissibly granted the variance because The p laintiff next contends that the trial cour t failed to address the

155 N.H. at 310. 3 specific factual findings where neither party requested such findings. See Kalil, a variance. See Thomas, 153 N.H. at p. 7 724. Nor did the ZBA err by not making hardship, which was necessary to support the ZBA’s decision to grant the Toys court did not err when it assumed that the ZBA made a finding of unnecessary that there is never any hardship. (Emphasis added.) A s discussed above, the he does n ot look at a variance request “that way” and thus does not believe “there’s no hardship to any case if you want to look at it that way,” impl ies that case; the conversation lacks context. Second, t he chairman ’s statement that “when you look at that case” because there is no preceding reference to any variance. First, we cannot tell from the record what the chairma n meant by ZBA deciding that it did not need to find unnecessary hardship to grant a We disagree with the plaintiff’s characterization of this discussion as the p. 8 8

determination based upon the record be fore the zoning board and such other unlawful or unreasonable.” RSA 677:6. “The trial court makes its any decision of the local legislative body to show that the order or decision is seeking to set aside any order or decision of the zoning board of adjustment or “In an appeal to the court, the burden of proof shall be upon the party

Zoning Ordinance had changed.” and that he granted the variance “because he was upset . . . with how the that the c hairman disapproved of the 2014 changes to the zoning ordinance, plaintiff argues that th e evidence it soug ht to introduce supported its argument its discretion in denying the p laintiff’s motions to expand the record. T he Finally, the p laintiff argues that the trial court unsustainably exercised

unnecessary hardship to satisfy RSA 674:33, I(b) (5). reasonably concluded that the Toys presented sufficient evidence of application to this specific property.” We agree that the ZBA could have relations hip between the purpose of the new zoning ordinance . . . and its ZBA could have reasonably concluded that “there exists no fair and substantial lot,” and that the use was a reasonable one. The court further ruled that the development proposed by the Toys in the central to southern portions of the have reasonably concluded that Lot 54 - 1 “essentially requires the type of Owing to thes e special conditions, the court ruled that the ZBA could

properties in the area.” zoning ordinance, which render ed Lot 54 - 1 “unique in comparison to other that these other manufactured housing parks are not permitted under the new itself, positioned as it is near other manufactured home parks,” and the fact feature s.” The court further not ed “the location and configuration of the lot uniquely shaped, and contains wetlands and challenging topographical properties in the area. The court noted that Lot 54 - 1 is “irregularly and that Lot 54 - 1 has several special conditions that distinguish it from other The trial court determined that the ZBA could reasonably have found

(ii) The proposed use is a reasonable one.

specific application of that provision to the property; and general public purposes of the ordinance provision and the (i) No fair and substantial relationship exists between the

distinguish it from other properties in the area: means that, owing to special conditions of the property that (A) For purposes of this subparagraph, “unnecessary hardship”

unnecessary hardship: for the ZBA to approve the Toys’ application. RSA 674:33, I(b)(5) (A) defines The plaintiff next argues that there was insufficient evidence of hardship p. 9 9

misapprehension of the plaintiff’s position in a motion for reconsideration. See the record, the plaintiff was obligated to inform the trial court of its argument, and that the trial court erred in so construing the motion to expand To the extent the plaintiff asserts that it was not making a bias

time.”). not fulfill the plaintiffs’ obligation to raise the issue at the earliest possible over three months to raise a concern about alleged bias of board members does 150 N.H. 167, 172 (2003) (“Waiting until after eleven hours of hearings held disqualification after the ZBA had voted); Bayson Properties v. City of Lebanon, raised it in a motion for rehearing, and they first learned of reason for (appellants rais ed disqualification issue at the earliest possible time when they possible time”); see also Taylor v. Town of Wakefield, 158 N.H. 35, 38 (2008) disqualification issues in administrative appeals to be “raised at the earliest time. See Fox v. Town of Greenland, 151 N.H. 600, 604 (2004) (requiring ordinance at issue in the Toys’ variance application — at the earliest possible c hairman was potentially biased because he did not support the zoning with the trial court that the plaintiff did not raise this argument — that the the September ZBA hearing or in the plaintiff’s motion for rehearing. We agree plaintiff did not argue that the c hairman was potentially biased either during issue of the c hairman ’s potential ulterior motives before the ZBA. Yet the the ZBA hearing on Sep tember 14, 2016, and had the opportunity to raise the time it filed its motion for rehearing. Further, the plaintiff’s counsel attended the evidence the plaintiff sought to introduce was known to the plaintiff at the Here, except for the c hairman ’s comments on February 21, 2017, all of

them.” raised at the earliest possible time in order to allow the local board to address raised in the proceedings below.” The court reasoned that “bias issues must be to introduce into the record an entirely new issue — one that was at no time were before the ZBA.” The court determined that the plaintiff was “attempt ing conflict of interest, bias or improper conduct does not go to the issues that The trial court ruled that “the evidence of [the c hairman]’s potential

(2001). exercise of discretion. Id. at 683 - 84; see S t ate v. Lambert, 147 N.H. 2 p. 9 95, 296 ruling on the admissibility of additional evidence, absent an unsustainable best position to determine the sufficiency of the record, we will not reverse i ts whether additional evidence will be taken.” Id. Because the trial c ourt is in the incomplete.” Id. “It is within the discretion of the trial court to determine to assist the court in evaluating the action of the board where the record is though it was not before the board.” Id. “Such additional evidence is intended be introduced in superior court and may be taken into conside ration even Hanover, 132 N.H. 677, 683 (1990). “Evidence beyond the certified record may evidence as may have been received by the court.” Peter Christian’s v. Town of p. 10 10

HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

expand the record. not unsustainably exercise its discretion in denying the plaintiff’s motions to (2002). It did not do so. For these reasons, we conclude that the t rial court did New Hampshire Department of Corrections v. Butland, 147 N.H. 676, 679