Carter v. Town of Derry

• Decision Date: 31 January 1973
• Docket Number: No. 5928,5928
• Citation: 300 A.2d 53,113 N.H. 1
• Parties: William R. CARTER v. TOWN OF DERRY.
• Court: New Hampshire Supreme Court

Page 53

300 A.2d 53

113 N.H. 1

William R. CARTER v. TOWN OF DERRY.

No. 5928.

Supreme Court of New Hampshire.

Jan. 31, 1973.

Shaw & Eldredge, Exeter (Carleton Eldredge, Exeter, orally), for plaintiff.

Grinnell & Bureau, Derry (George H. Grinnell, Derry, orally), for defendant.

KENISON, Chief Justice.

Appeal under RSA 31:77 from the decision of the board of adjustment of the defendant town denying the plaintiff's application for a variance to construct a seasonal dwelling on an undersized lot at Collette's Cove, Island Pond, in Derry, New Hampshire. Hearing before a Master (Leonard C. Hardwick, Esq.) resulted in a report recommending that plaintiff's petition be dismissed. The Superior Court (Morris, J.) approved the master's report, dismissed the petition, and reserved and transferred to this court all questions of law raised by the parties.

Plaintiff's property consists of two adjacent lots which he obtained in 1966. He purchased lot 5, consisting of approximately 8,000 square feet, from his father who had acquired the lot in 1959. He had previously purchased the adjoining lot 6, containing about 5,000 square feet, from a third party so that his total lot size was increased to 13,000 square feet. In 1961 the town of Derry had adopted an amendment to its zoning ordinance providing as follows: 'Residential lots not supplied by a community or public water system or sewer system shall contain a minimum of 25,000 square feet.' None of the lots at Collette's Cove have public water or sewers, but each has its own well and septic tank or leaching field.

Plaintiff first applied to the building inspector in 1965 for a permit to build on lot 5 which still belonged to his father at the time. After his application was denied, he petitioned the zoning board of appeals for a variance to the minimum lot size requirement but withdrew his petition prior to any action thereon by the board. After acquiring title to both lots, plaintiff in 1966 again applied to the board for a variance which was denied after a public hearing. Upon his motion for a rehearing, the zoning board of appeals conducted another public hearing and subsequently notified the plaintiff that his application was again denied since no additional evidence had been produced to warrant reversal of the original decision. Plaintiff then appealed to the superior court under RSA 31:77, and a master was appointed who conducted the hearing resulting in the dismissal of plaintiff's petition.

The zoning board viewed the premises on at least one occasion and determined that the variance should not be granted due to the small size of the lot and the potential health threat to the existing cottages nearby of adding another residence, with its concomitant leaching field or septic tank, to an already overcrowded area. RSA 31:72, subd. III authorizes a zoning board to grant variances only 'as will not be contrary to the public interest'. It was findable that the plaintiff's lot even though it had 13,000 square feet, surrounded as it was by residences on lots for the most part of 5,000 square feet, could not safely support another septic tank or leaching field. 'In communities which lack a public sewer system-and often lack a public water supply system as well-it is clear that relatively large lots may be necessary in order to provide a greater area for on-site disposal of sewage by use of septic tanks and to protect the ground water supply from contamination'. Cunningham, Land-Use Control-The State and Local Programs, 50 Iowa L.Rev. 367, 389 (1965). 'Lots of less than a half-acre are considered incapable of supporting both a septic tank and a water well. Therefore, the use of private on-site sewage disposal systems, especially when a public water supply in absent, requires at least half-acre lots, perhaps much larger ones if the soil consists of clay. Adequate sewage disposal and water supply are clearly related to public health and, in the absence of public facilities, are directly affected by the size of residential lots'. Becker, The Police Power and Minimum Lot Size Zoning-Part I: A Method of Analysis, 1969 Wash.U.L.Q. 263, 306. To grant a variance to the plaintiff in this relatively congested residential area...