Alex Kwader v. Town of Chesterfield

[PDF page 1] THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No. 2010-0151, Alex Kwader v. Town of Chesterfield, the court on March 21, 2011, issued the following order: The petitioner, Alex Kwader, appeals an order of the superior court upholding a decision of the zoning board of adjustment (ZBA) for the respondent, Town of Chesterfield, denying his request for an area variance. We vacate and remand. Our review of zoning cases is limited. Pike Indus. v. Woodward, 160 N.H. 259, 262 (2010). We will uphold the superior court’s decision on appeal unless it is not supported by the evidence or is legally erroneous. Id. The trial court’s review of zoning decisions is also limited. Ouellette v. Town of Kingston, 157 N.H. 604, 612 (2007). The factual findings of the ZBA are deemed prima facie lawful and reasonable, and will not be set aside by the trial court absent errors of law, unless the court is persuaded, based upon a balance of probabilities, on the evidence before it, that the ZBA’s decision is unreasonable. Pike Indus., 160 N.H. at 262. The party seeking to set aside the ZBA’s decision bears the burden of proof on appeal to the trial court. Id. The petitioner argues that the ZBA erred by denying his request for an area variance. An applicant seeking any kind of variance must demonstrate that: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that a literal enforcement of the provisions of the ordinance will result in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; (4) substantial justice is done; and (5) granting the variance will not diminish the value of surrounding properties. Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102, 105 (2007); see RSA 674:33, I(b) (2008) (amended 2009). In Boccia v. City of Portsmouth, 151 N.H. 85, 94 (2004), abrogated by Laws 2009, 307:6, we stated that an applicant seeking an area variance must satisfy the following two requirements to prove unnecessary hardship: (1) an area variance is needed to enable the applicant’s proposed use of the property given the special conditions of the property; and (2) the benefit sought by the applicant cannot be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. To address the parties’ arguments and the trial court decision on appeal, it is necessary to set forth the procedural and factual history of this case. In 2006, the petitioner owned approximately 113 acres of land in Chesterfield. The western side of the petitioner’s lot had 241 feet of frontage along Poocham Road. [PDF page 2] 2 In the zoning district in which the petitioner’s land is located, a buildable lot must contain at least five acres and have at least 400 feet of frontage. In 2006, the petitioner applied for a boundary adjustment under which his neighbor, David L. Hall, would convey thirty-seven abutting acres to him. The thirty-seven acres had fifty-five feet of frontage on a cul-de-sac at the end of Pinnacle Springs Extension. Under the boundary adjustment plan, Hall would retain a parcel that had 400 feet of frontage on Pinnacle Springs Extension. The boundary adjustment was approved, and Hall conveyed the thirty-seven acre lot to the petitioner, as planned, retaining the lot with 400 feet of frontage on Pinnacle Springs Extension for himself. As a result of the conveyance, the petitioner now owned a lot consisting of 150 acres with 241 feet of frontage on Poocham Road and fifty-five feet of frontage on Pinnacle Springs Extension. In January 2008, the petitioner sought a variance from the frontage requirement so that he could carve out a fifteen-acre lot from his land abutting Pinnacle Springs Extension. This fifteen-acre lot would have only fifty-five feet of frontage on that road. The ZBA denied the application on the ground that it believed that “there was bad faith in the presentation to the Board in terms of lack of disclosure that is very material information.” The petitioner moved for rehearing, which the ZBA granted. Upon rehearing, the ZBA again denied the petitioner the requested variance, stating, in pertinent part: “We do not find hardship as suggested by the applicant. We look to the Boccia analysis and find that yes an area variance would be needed to create this lot but it is not necessary to grant this variance in order for there to be reasonable use of this lot.” The ZBA found that the petitioner “in the prior transaction where this lot was created effectively created his own argument for hardship.” Elsewhere in its decision, the ZBA reiterated: “The special conditions of the property make an area variance necessary in order to allow the development as designed. Yes.... The same benefit cannot be achieved by some other reasonable feasible method that would not impose an undue financial burden. No.” The petitioner appealed the ZBA’s decision to the superior court, asserting that while the ZBA correctly found that the first prong of the Boccia test was met (an area variance is needed to enable his proposed use of the property given the special conditions of the property), its other findings were incorrect. The superior court agreed. Accordingly, the court vacated the ZBA’s decision and remanded for it to consider the petitioner’s variance request under the proper legal standards. Because the petitioner did not appeal the ZBA’s finding on the first prong of the Boccia test, the superior court did not address it. On remand, however, the ZBA reconsidered its finding on this prong, and decided that the petitioner did not meet it because there were no “special [PDF page 3] 3 conditions that would warrant a variance in this case.” With respect to the second prong, the ZBA found that the petitioner had other development options that he could pursue and, thus, that the benefit he sought could be achieved by some other method reasonably feasible for him to pursue, other than an area variance. The trial court ruled that the ZBA did not err by reconsidering its finding on the first prong of the Boccia test. The court found that it was reasonable for the ZBA to interpret the court’s remand order as mandating further review of both prongs of the Boccia test. Additionally, while the court acknowledged that “the ZBA initially wrote ‘Yes’” in response to the question of whether an area variance was needed, the court was persuaded that this was contrary to what the ZBA intended to express. The court ruled that the ZBA found that the petitioner’s lot had certain special conditions, such as its configuration and minimal road frontage, which prevented his proposed development without a variance, but that the petitioner had “created his own problems.” On the merits of the ZBA’s analysis of the first prong of the Boccia test, the court assumed, without deciding, that, as the petitioner argued, the doctrine of self-created hardship applied to an area variance as a nondispositive factor, and ruled that there was evidence to support the ZBA’s finding that the petitioner had created his own hardship. The court further ruled that the record supported the ZBA’s finding that the petitioner did not ameliorate his self-created hardship by acting in good faith and that “there was no other evidence to suggest that other special conditions, peculiarly related to the land, existed that would warrant the granting of the variance.” However, the trial court decided that the ZBA’s remaining findings on the second prong of the Boccia test and the other requirements for a variance were unreasonable. The court, nonetheless, upheld the ZBA’s decision to deny the petitioner’s request for a variance based solely upon the ZBA’s finding on the first prong of the Boccia test. The petitioner first argues that the ZBA erred by reconsidering its finding on the first Boccia prong. We disagree. As the trial court ruled, the ZBA could reasonably have understood the court’s remand order to allow it to review its analysis of the first Boccia prong. Moreover, the record reveals that when the ZBA reconsidered its finding on the first prong of Boccia, it did so only to correct a clerical mistake that it believed it had made. In the ZBA’s April 14, 2009 meeting at which it considered the petitioner’s variance request after remand, the ZBA stated: “In our previous discussion we agreed there were no special conditions that warrant a hardship claim. However when the ruling was written up it was inadvertently written up as ‘Yes’ to that question, which went counter to the Board’s decision. We want to make sure we clean up that error.” Like the trial court, we are persuaded that when the ZBA initially answered “yes” to the question of whether an area variance was needed, it meant to write “no.” Contrary to the petitioner’s assertions, therefore, the ZBA did not “reverse” itself [PDF page 4] 4 when it reconsidered the first prong of the Boccia test, but clarified its initial finding on that prong. The petitioner next asserts that the trial court erroneously applied the self-created hardship doctrine. He asks us to assume that the self-created hardship doctrine applies in the area variance context and asserts that any hardship from the fact that the fifteen-acre lot, which he proposed to create, lacked the requisite 400 feet of frontage was not self-created. For the purposes of this discussion, we assume, without deciding, that, as the petitioner argued in the trial court and has argued on appeal, self-created hardship is a nondispositive factor to be considered when determining whether unnecessary hardship exists in an area variance case. Cf. Hill v. Town of Chester, 146 N.H. 291, 294 (2001) (self-created hardship is nondispositive factor to be considered when assessing hardship in use variance case). “In order to be entitled to a variance, the hardship complained of must arise through circumstances or conditions uniquely affecting the property.” 3 E. H. Ziegler, Jr., Rathkopf’s The Law of Zoning and Planning § 58.21, at 58-132 (2010). “If the conditions affecting the property have been caused or created by the property owner or his predecessor in title, the essential basis of a variance, that the hardship is caused solely through the manner of operation of the ordinance upon the particular property, is lacking.” Ziegler, supra § 58.21, at 58-132. Generally, “a self-created hardship requires an affirmative action by the landowner or a predecessor in title that brings an otherwise conforming property into non-conformity.” Jock v. Zoning Bd. of Adjustment, 878 A.2d 785, 802 (N.J. 2005). Here, under the boundary adjustment plan, Hall divided his conforming property into two lots and conveyed the lot that lacked sufficient frontage to the petitioner. Hall retained the lot that had sufficient frontage for himself. By creating a lot that lacked sufficient frontage, Hall created the hardship for which the petitioner now seeks a variance. As Hall is the petitioner’s predecessor-in-title, the petitioner is bound by his actions. See id. (citing cases). Although the trial court did not err when it upheld the ZBA’s finding of self-created hardship, the trial court did err by making this finding dispositive, despite its statement that it would treat self-created hardship as a nondispositive factor. Self-created hardship should be only one factor to be considered when assessing hardship. Cf. Hill, 146 N.H. at 293. It “should not in and of itself justify denial of an application for an area variance.” De Sena v. Board of Zoning Appeals, Etc., 379 N.E.2d 1144, 1145-46 (N.Y. 1978); Russell v. Bd. of Adjustment of Borough of Tenafly, 155 A.2d 83, 89 (N.J. 1959) (“A decision on self-created hardship, without more, is not conclusive on the determinative issue of undue hardship.”). [PDF page 5] 5 Here, because the trial court ruled that all of the ZBA’s other findings on the other variance requirements were unreasonable, it upheld the ZBA’s denial of an area variance to the petitioner solely because of the ZBA’s finding on self-created hardship. Even though it said that it was going to treat self-created hardship as a nondispositive factor, the trial court, in fact, made this factor dispositive. This was error. Accordingly, we vacate the trial court’s decision and remand for further proceedings consistent with this order. Vacated and remanded. DALIANIS, C.J., and DUGGAN and CONBOY, JJ., concurred. E i l e e n F o x, C l e r k