Biggs v. Town of Sandwich, 82-326

Decision Date06 January 1984
Docket NumberNo. 82-326,82-326
Citation470 A.2d 928,124 N.H. 421
PartiesJohn M. BIGGS et al. v. The TOWN OF SANDWICH et al.
CourtNew Hampshire Supreme Court

Sulloway, Hollis & Soden, Concord (Stephen M. Duprey, on brief and orally and Eleanor H. Holmes, Concord, on brief), for plaintiffs.

Nighswander, Martin, KillKelley & Kidder P.A., Laconia (Walter L. Mitchell, Laconia, on brief and orally), for defendants.

BATCHELDER, Justice.

The plaintiffs appeal from a decree of the Superior Court (Wyman, J.) which approved the Master's (Harold D. Moran, Esq.) recommendation to affirm the Sandwich Zoning Board of Adjustment's denial of the plaintiffs' request for a building permit and subsequent request for a variance. The superior court also approved the master's recommendation to deny the plaintiffs' request for damages resulting from inverse condemnation of their property. We affirm.

In the latter part of 1979, the Sandwich Conservation Commission considered a wetlands ordinance for presentation to the 1980 town meeting. Designed to preserve the ecological balance of the wetlands, the proposed ordinance contained the requirement that all septic tanks and leachfields be set back one hundred and twenty-five feet from any wetlands as defined in the ordinance. Subsequent to two public hearings, notices of which were published in a local newspaper, the town passed the ordinance on March 11, 1980.

Meanwhile on December 24, 1979, the plaintiffs, John and Margaret Biggs, purchased approximately twelve acres of land which consisted of two acres of dry land bordered on three sides by wetlands. Informed of the proposed wetlands ordinance, the plaintiffs made their purchase and sale agreement subject to a "satisfactory septic tank location compatible with reasonable house location." The field work for the design of the plaintiffs' septic system commenced on December 27, 1979, and on January 29, 1980, the plan was approved by the New Hampshire Water Supply and Pollution Control Commission, as required by RSA 149-E:3. Construction of the septic system began in February and was finished in March 1980.

Approximately one year later, the plaintiffs applied for a building permit as required by the building code adopted at the 1981 town meeting. On May 6, 1981, the town selectmen denied the building permit because the plaintiffs' septic tank was located approximately seventy-five feet from the wetlands and thus did not conform with the wetlands ordinance.

The plaintiffs appealed to the Sandwich Zoning Board of Adjustment (ZBA), see RSA 31:69, and, after a hearing in June 1981, the ZBA affirmed the town selectmen's denial of a permit. After a rehearing, the ZBA again affirmed the denial of the permit. The plaintiffs then appealed to the superior court.

The plaintiffs subsequently filed a petition for a variance from the one-hundred-and-twenty-five-feet setback requirement. After a hearing in September 1981, the ZBA denied the petition on the ground that to grant the variance would violate the spirit of the wetlands ordinance. The ZBA denied the plaintiffs' petition for a rehearing on October 15, 1981. The plaintiffs appealed the ZBA's denial of a variance, and the two appeals were consolidated before the superior court.

After a hearing in March 1982, the master concluded that the decisions of the ZBA were neither unlawful nor unreasonable. He further ruled that even if the rule of inverse condemnation was applicable in this case, the plaintiffs were not proper parties because of their lack of good faith in proceeding with the construction of the septic system and because the repurchase agreement protected them from suffering any compensable damage. The superior court affirmed the master's findings and conclusions.

The plaintiffs have appealed from the superior court decision, arguing that the ZBA erred as a matter of law in denying their building permit; that the plaintiffs have a vested right to complete their building project; that the record does not support the ZBA's denial of the requested variance; and that the application of the wetlands ordinance results in a taking of the plaintiffs' land for which they should be compensated.

First, the plaintiffs argue that the ZBA, in relying on RSA 156:3-a (Supp.1981) to deny the building permit, erred as a matter of law. RSA 156:3-a (Supp.1981) provides that

"The building inspector shall not issue any building permit where application for such permit is made after the first legal notice of proposed changes in the building code has been posted pursuant to the provisions of RSA 156-A:1-a, I or 156-A:1-b, or the first legal notice of proposed changes in the zoning ordinance has been posted pursuant to the provisions of RSA 31:63 or RSA 31:63-a, if the proposed changes in the building code or the zoning ordinance would, if adopted, justify refusal of such a permit."

The plaintiffs argue that at the time the wetlands ordinance was being considered, there was no building code in effect in the town of Sandwich and, therefore, RSA 156:3-a (Supp.1981) was inapplicable in this case. The ZBA found however that on September 16, 1975, the town of Sandwich had adopted a flood plains ordinance which provided for a building code, a building inspector and a permit system. The town selectmen were designated as the building inspectors.

The ZBA also found that the flood plains ordinance applied to the construction of the plaintiffs' septic system. The plaintiffs did not request a permit from the town prior to constructing their septic system. When they did apply for a building permit after the passage of the wetlands ordinance and a new building code, the ZBA found that RSA 156:3-a (Supp.1981) operated to subject the plaintiffs to the setback requirements of the wetlands ordinance.

All findings of a zoning board of adjustment, upon all questions of fact properly before it, are deemed to be prima facie lawful and reasonable, and the decision appealed from may not be set aside except for errors of law, unless the court is persuaded by a balance of probabilities, on the evidence before it, that the decision is unreasonable. RSA 31:78 (Supp.1981) (recodified by Laws 1983, ch. 447).

The master found that the ZBA's orders were reasonable and just; and that the plaintiffs failed to bring forth evidence to overcome the statutory presumption that the ZBA's findings were lawful and reasonable. Our standard of review is not whether we would have found as the master...

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