Barry v. Town of Amherst
| Decision Date | 07 May 1981 |
| Docket Number | No. 80-023,80-023 |
| Parties | Vivian W. BARRY v. TOWN OF AMHERST. |
| Court | New Hampshire Supreme Court |
Brown & Nixon P.A., Manchester (David W. Hess, Manchester, on the brief and orally), for plaintiff.
William R. Drescher P.A., Milford, for defendant.
The issues in this zoning case are whether the trial court applied the wrong standard in reviewing the decision of the Amherst Zoning Board of Adjustment denying the plaintiff's application for a variance and whether a zoning board's failure to hold a hearing on an application for a variance within thirty days after the application was filed requires that the variance be granted. We answer the first question in the affirmative and the second question in the negative, and remand for further proceedings.
The subject of this litigation is a three-acre tract of land owned by the plaintiff and located on the north side of Route 101 in Amherst. This property is adjacent to another tract owned by the plaintiff upon which she operates a restaurant as a preexisting nonconforming use. Both tracts are situated in a residential district. The three-acre tract has a frontage of 523 feet. There are no access restrictions with respect to sixty feet of the frontage, but the remaining frontage is on the controlled access part of Route 101. On the opposite side of Route 101 is a recently constructed shopping center.
On February 1, 1979, the plaintiff applied for a variance to construct a shopping mall on the property in question. The zoning board of adjustment, after a hearing and a view, denied the application. After the plaintiff's motion for rehearing was denied, she appealed to the superior court. A Master (Mayland H. Morse, Esq.) conducted a hearing and took a view of the property. In a report dated November 6, 1979, he ruled that, under RSA 31:78, the superior court could not overturn the decision of the board of adjustment "unless the court first finds as a matter of law that the evidence compelled a contrary finding by the Board." The master found that the plaintiff had failed to sustain her burden of proof and recommended that her appeal be dismissed. On December 13, 1979, the Superior Court (Flynn, J.) entered a decree in accordance with that recommendation, and the plaintiff appealed.
The plaintiff's first argument relates to the standard of review used by the master. In ruling that, under RSA 31:78, the zoning board's decision could not be set aside unless "as a matter of law the evidence compelled a contrary finding by the Board," the master applied the test set forth in Beaudoin v. Rye Beach Village Dist., 116 N.H. 768, 771, 369 A.2d 618, 621 (1976) and Sweeney v. Dover, 108 N.H. 307, 310, 234 A.2d 521, 523 (1967). The plaintiff contends that this interpretation of RSA 31:78 is contrary to that enunciated in Cook v. Town of Sanbornton, 118 N.H. 668, 392 A.2d 1201 (1978), and that the master therefore evaluated the zoning board's decision under the wrong standard. We agree with the plaintiff.
In Cook, this court stated that the "standard of superior court review in zoning appeals as articulated in Sweeney ... and applied in ... Beaudoin is tantamount to no review at all and that it is contrary to the language of RSA 31:78." 118 N.H. at 670, 392 A.2d at 1202. We therefore adopted the reasoning of the dissent in Beaudoin and held that the standard of review was precisely that stated in the statute; namely, that the decision of the zoning board was only prima facie reasonable and that the trial judge may "overturn the board's determination when he is persuaded by a balance of probabilities, on the evidence before the court, that the order or decision is unjust or unreasonable." Id. We also held that "unjustness" and "unreasonableness" were separate grounds for overturning a zoning board's decision. Id. at 671, 392 A.2d at 1203. In conclusion, the court stated that "(i)nsofar as any of our prior zoning cases are inconsistent with the interpretation of RSA 31:78 herein expressed, they are overruled." Id. The cases thereby overruled include Sweeney, Beaudoin, Vannah v. Town of Bedford, 111 N.H. 105, 276 A.2d 253 (1971), and any other cases in which the court applied a standard of review narrower than or otherwise contrary to that expressed in Cook.
After our decision in Cook, the legislature amended RSA 31:78 by striking out the word "unjust," thereby eliminating "injustice" as a separate ground for reversing a zoning board's decision. Laws 1979, 121:2. The case before us, however, is governed by the statute before amendment. Consequently, both the "unjust" and "unreasonable" grounds are available to this plaintiff. Moreover, the amendment...
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