Cook v. Town of Sanbornton
Decision Date | 04 October 1978 |
Docket Number | No. 78-094,78-094 |
Citation | 118 N.H. 668,392 A.2d 1201 |
Parties | Norman S. COOK et al. v. TOWN OF SANBORNTON. |
Court | New Hampshire Supreme Court |
Stanley, Tardif & Shapiro, Concord (R. Peter Shapiro, Concord, orally), for plaintiffs.
Wescott, Millham & Dyer, Laconia (Peter V. Millham, Laconia, orally), for defendant.
This case concerns the proper judicial interpretation of RSA 31:78, the statute that sets forth the standard of superior court review in appeals from zoning board decisions.
In 1971 the State of New Hampshire offered to purchase a three-fifth-acre tract from the plaintiffs, Norman and Barbara Cook. When the Cooks rejected the offer the State took by eminent domain certain buildings and one-quarter acre. The plaintiffs retained one-third acre of vacant land. The parties were unable to agree on the damages for the partial taking and they submitted the case to the New Hampshire Commission of Eminent Domain. The record suggests that the amount awarded $48,500, was less than the Cooks requested but included severance damage. However, they did not appeal. Instead the plaintiffs applied to the board of selectmen for a permit to build a residence on the remaining one-third acre. The selectmen denied the request because the applicable zoning ordinance precluded construction on less than one-half acre. The Cooks subsequently applied to the zoning board of adjustment for an area variance asserting an involuntarily created hardship. After a hearing the board denied the request on the ground that variance would not be "in the spirit or intent of the Zoning Ordinance." Rehearing was denied and the Cooks appealed to superior court under RSA 31:77. Though there was evidence that the lot in question will remain virtually useless without a variance, and that denial imposes a hardship on the plaintiffs, the Master (Leonard C. Hardwick, Esq.) found that the Cooks failed to meet the statutory burden of proving that the decision of the zoning board was unjust, unreasonable or unlawful. RSA 31:78. Batchelder, J., approved the master's recommendation that the petition be dismissed and reserved and transferred the plaintiffs' exceptions.
RSA 31:78 provides that decisions reached by zoning boards "shall not be set aside or vacated, except for errors of law, Unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unjust or unreasonable." (Emphasis added). In the past we have interpreted this language to impose an excessively heavy burden on parties aggrieved by zoning board decisions. In Sweeney v. Dover, 108 N.H. 307, 310, 234 A.2d 521, 523 (1967), this court stated that unless the superior court can rule "as a matter of law that the evidence compelled a contrary finding by the board . . . ." the statutory presumption in favor of the board's is not overcome. Vannah v. Town of Bedford, 111 N.H. 105, 276 A.2d 253 (1971), relied on Sweeney and held "(o)nly if the decision of the Board could not be reached . . . by reasonable men (is) it subject to modification or vacation by the trial court." Id. at 112, 276 A.2d at 258.
The narrow standard of superior court review expressed in Sweeney and Vannah led to harsh results in later cases. In Simoneau v. City of Nashua, 112 N.H. 18, 287 A.2d 620 (1972), in which the trial judge's decision rested on a finding of hardship, we relied on Sweeney and Vannah and set aside a superior court order vacating a zoning board's denial of a variance. We reached a similar result in Beaudoin v. Rye Beach Village Dist., 116 N.H. 768, 369 A.2d 618 (1976). There the trial judge viewed the property, had the benefit of the transcript of the zoning board hearing at a two-day trial, and ruled that "by a balance of the probabilities, on the evidence before it, the order of the zoning board denying plaintiff's petition was 'unjust and unreasonable' . . . " Id. at 770,...
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