Dietz v. Town of Tuftonboro, 2017-0536

• Decision Date: 08 January 2019
• Docket Number: No. 2017-0536,2017-0536
• Citation: 201 A.3d 65,171 N.H. 614
• Parties: David F. DIETZ & a. v. TOWN OF TUFTONBORO
• Court: New Hampshire Supreme Court

171 N.H. 614

201 A.3d 65

David F. DIETZ & a.

v.TOWN OF TUFTONBORO

No. 2017-0536

Supreme Court of New Hampshire.

Argued: May 9, 2018

Opinion Issued: January 8, 2019

Wadleigh, Starr & Peters, PLLC, of Manchester (Michael J. Tierney on the brief and orally), for the plaintiffs.

Sager & Smith, PLLC, of Ossipee, for the defendant, filed no brief.

Hinckley, Allen & Snyder, LLP, of Manchester (John L. Arnold and Daniel M. Deschenes on the brief, and Mr. Arnold orally), for the intervenor.

BASSETT, J.

The plaintiffs, David F. and Katherine W. Dietz, appeal an order of the Superior Court (Fauver, J.) upholding a decision by the zoning board of adjustment (ZBA) for the defendant, the Town of Tuftonboro, to grant to the intervenor, Sawyer Point Realty, LLC (collectively with Sawyer Point Realty Trust, its predecessor in interest, Sawyer Point), two equitable waivers related to two additions Sawyer Point constructed on its house in violation of the Town's zoning ordinance requiring a fifty-foot setback from Lake Winnipesaukee. We affirm.

The trial court recited in its narrative order, or the record supports, the following relevant facts. Sawyer Point's house is located along the shore of Lake Winnipesaukee and within the Town's Lakefront Residential Zoning District (District). The Dietzes own the abutting property, which is also within the District. Section 4.2 of the Town's zoning ordinance requires a minimum fifty-foot setback from the lake for buildings located within the District.

In 1999, Sawyer Point added a second floor addition over the eastern portion of the first floor of its house (1999 Addition). At the time of the 1999 Addition, Sawyer Point was aware that the existing structure was located within the setback, and that the second floor addition would, therefore, also be within the setback. Prior to construction, Sawyer Point's principal, Laurel Luby, provided Sawyer Point's builder, David Braun, with an interior floor plan of the house, which showed that the house was situated less than fifty feet from the lake. Braun then submitted a building permit application to the Town containing a rough sketch of the existing house, which also showed that the house was situated less than fifty feet from the lake. On February 8, 1999, the Town's building inspector granted the building permit, noting the addition would cause "no change in footprint." Sawyer Point then constructed the addition.

In 2008-2009, Sawyer Point constructed a second addition to its house, adding a second floor over the existing enclosed porch as well as an addition off the side of the structure facing away from the lake (2008 Addition). Prior to obtaining a building permit for the 2008 Addition, Braun determined that portions of the addition would be within the setback, and, accordingly, submitted a variance application to the ZBA on behalf of Sawyer Point. After a hearing, the ZBA unanimously approved the variance and issued a building permit.

In February 2014, Sawyer Point commissioned a survey of its property. The survey revealed that, in regard to the 2008 Addition, more of the new structure was within the setback than had been represented to the ZBA. In December 2014, the Dietzes, after learning of this discrepancy, sought injunctive relief against Sawyer Point, claiming that Sawyer Point had built within the setback without obtaining the required approvals, and requesting that the court order the removal of the unlawful construction. See RSA 676:15 (2016). Thereafter, Sawyer Point applied to the ZBA for equitable waivers pursuant to RSA 674:33-a (2016) for the portion of the 1999 Addition within the setback, and the approximately fifty square-foot portion of the 2008 Addition that is within the setback but is not within the scope of the 2008 variance. The ZBA granted the equitable waivers and subsequently denied the Dietzes' request for a rehearing. The Dietzes appealed to the superior court, which upheld the ZBA's decision. This appeal followed.

Because resolution of this appeal requires us to interpret the equitable waiver statute, we set forth the pertinent provisions of RSA 674:33-a :

I. When a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance enacted pursuant to RSA 674:16, the zoning board of adjustment shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the requirement, if and only if the board makes all of the following findings:

(a) That the violation was not noticed or discovered by any owner, former owner, owner's agent or representative, or municipal official, until after a structure in violation had been substantially completed, or until after a lot or other division of land in violation had been subdivided by conveyance to a bona fide purchaser for value;

(b) That the violation was not an outcome of ignorance of the law or ordinance, failure to inquire, obfuscation, misrepresentation, or bad faith on the part of any owner, owner's agent or representative, but was instead caused by either a good faith error in measurement or calculation made by an owner or owner's agent, or by an error in ordinance interpretation or applicability made by a municipal official in the process of issuing a permit over which that official had authority;

(c) That the physical or dimensional violation does not constitute a public or private nuisance, nor diminish the value of other property in the area, nor interfere with or adversely affect any present or permissible future uses of any such property; and

(d) That due to the degree of past construction or investment made in ignorance of the facts constituting the violation, the cost of correction so far outweighs any public benefit to be gained, that it would be inequitable to require the violation to be corrected.

II. In lieu of the findings required by the board under subparagraphs I(a) and (b), the owner may demonstrate to the satisfaction of the board that the violation has existed for 10 years or more, and that no enforcement action, including written notice of violation, has been commenced against the violation during that time by the municipality or any person directly affected.

RSA 674:33-a, I-II.

"Our review in zoning cases is limited." Harrington v. Town of Warner, 152 N.H. 74, 77, 872 A.2d 990 (2005). "The party seeking to set aside the ZBA's decision bears the burden of proof on appeal to the trial court." Id. "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." Id. ; see RSA 677:6 (2016). The trial court's review "is not to determine whether it agrees with the zoning board of adjustment's findings, but to determine whether there is evidence upon which they could have been reasonably based."

Lone Pine Hunters' Club v. Town of Hollis, 149 N.H. 668, 670, 826 A.2d 582 (2003) (quotation omitted). The trial court reviews the ZBA's statutory interpretation de novo. See RSA 677:6 ; Golf Course Investors of NH v. Town of Jaffrey, 161 N.H. 675, 682, 20 A.3d 846 (2011) (reviewing issues of law decided by the ZBA de novo ).

"We will uphold the trial court's decision on appeal unless it is not supported by the evidence or is legally erroneous." Harrington, 152 N.H. at 77, 872 A.2d 990. "[W]e are mindful that we do not act as a super zoning board." Id. at 82, 872 A.2d 990. "We review the trial court's statutory interpretation de novo." Olson v. Town of Grafton, 168 N.H. 563, 566, 133 A.3d 270 (2016).

The Dietzes first argue that the trial court erred because RSA 674:33-a requires that the ZBA make written factual findings as to each element of the statute, and that here the ZBA failed to do so. The Dietzes focus on the language of Paragraph I of the statute, which provides that "the zoning board of adjustment shall, upon application by and with the burden of proof on the property owner, grant an equitable waiver from the requirement, if and only if the board makes all of the following findings." RSA 674:33-a, I (emphasis added). They contend that the trial court erred when it determined that the ZBA's grant of the equitable waivers "amounted to an implicit finding by the ZBA that all of the statutory requirements for an equitable waiver had been met." (Quotation omitted). Sawyer Point counters that, although the statute requires the ZBA to make certain findings, it does not require the ZBA to set forth the findings in writing.

Resolving the issue of whether the ZBA was required to make written factual findings requires that we engage in statutory interpretation. "In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Petition of Carrier, 165 N.H. 719, 721, 82 A.3d 917 (2013). "We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning." Id. "We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include." Id. "The legislature is not presumed to waste words or enact redundant provisions and whenever possible, every word of a statute should be given effect." Garand v. Town of Exeter, 159 N.H. 136, 141, 977 A.2d 540 (2009) (quotation omitted). "We construe all parts of a statute together to effectuate its overall purpose and avoid an absurd or unjust result." Carrier, 165 N.H. at 721, 82 A.3d 917. "Moreover, we do not consider words and phrases in isolation, but rather within the context of the statute as a whole." Id. "This enables us to better discern the legislature's intent and to interpret statutory language in...