Duffy v. City of Dover

• Decision Date: 27 February 2003
• Docket Number: No. 2001–479.,2001–479.
• Citation: 149 N.H. 178,818 A.2d 1251
• Parties: Bernard J. DUFFY & a. v. CITY OF DOVER & a.
• Court: New Hampshire Supreme Court

149 N.H. 178

818 A.2d 1251

Bernard J. DUFFY & a.

v.CITY OF DOVER & a.

No. 2001–479.

Supreme Court of New Hampshire.

Argued Jan. 8, 2003.

Opinion Issued Feb. 27, 2003.

Rehearing Denied April 8, 2003.

Burns, Bryant, Hinchey, Cox & Rockefeller, P.A., of Dover (Donald R. Bryant on the brief and orally), for the petitioners.

George E. Wattendorf, of Dover, by brief, for the respondents.

McNeill, Taylor & Gallo, P.A., of Dover (Malcolm R. McNeill, Jr. and Lynne M. Dennis on the brief, and Mr. McNeill orally), for the intervenor, Motiva Enterprises, LLC.

DALIANIS, J.

In this zoning board appeal, the intervenor, Motiva Enterprises, LLC(Motiva) seeks to expand the commercial use of its property.The petitioners, Bernard J. Duffy, Eleanor K. Duffy, Donald R. Bryant and Eleanor G. Bryant, appeal a decision of the Superior Court(Fauver , J.) affirming a decision of the City of Dover Zoning Board of Adjustment(board) denying their claim that the intervenor's project is prohibited under the City of Dover Zoning Ordinance(city ordinance).We affirm.

The record supports the following facts.Motiva owns and operates a gasoline station located at 169 Silver Street in Dover.The former owner of the property, Texaco Incorporated, received a variance in 1966 to use the property for a gasoline station.Motiva's property lies within two zoning districts: the B–3 (business) zoning district and the RM–10 (residential) district.City ordinance 170–10(E), in part, provides:

Where a district boundary divides one (1) lot and more than fifty percent (50%) of the area of such lot lies in the less restricted district, the regulations prescribed by this chapter for the less restricted district may apply to the remainder of said lot up to a distance of not more than fifty (50) feet from the district boundary.In no case, however, shall such extension of the less restricted district be permitted closer than one hundred (100) feet to any street line in the more restricted district.

Dover, N.H., Zoning Ordinance ch. 170, art. 3, § 10(1979).

On April 12, 2000, Motiva submitted an application for site plan review for the purposes of expanding the use of its property to include a convenience store, car wash and fast food facility.All of the new structures are to be located within either the B–3 zoning district or no more than fifty feet into the RM–10 zoning district.In addition, the improvements are more than 100 feet from Silver Street.The proposal contains no plan to enlarge or extend the existing driveway, which has been used since the original variance in 1966, but, rather, provides for a reduction in both the driveway's size and its extent of intrusion into the RM–10 zone.

Following a challenge from the petitioners as to whether the Motiva plan was permitted, the City Code Enforcement Officer(Officer) found that Motiva's project was in compliance with the ordinance.The petitioners appealed this decision to the board, which upheld the Officer's decision.The petitioners subsequently appealed the board's decision to the superior court, arguing that Motiva cannot extend the use of its property under city ordinance 170–10(E) without board approval.They also argued that the board erred in approving Motiva's project because both the driveway and the telephone, electrical and sewer connections extend beyond fifty feet into the RM–10 zone.

Following a hearing, the superior court affirmed the board's decision.In its order, the court rejected the petitioners' argument that city ordinance 170–10(E) must be construed as vesting the board and not the applicant with the discretion to apply the regulations affecting the less restrictive district to the remainder of the lot up to a distance of fifty feet from the boundary line.Further, it ruled that the driveway and telephone, electric and sewer connections were not "uses" under the ordinance and therefore not in violation of the city ordinance.It also ruled that issues relating to both the driveway and the telephone, electric and sewer connections were properly the subject of the site plan review process.The petitioners filed a motion to reconsider, which was denied.This appeal followed.

The factual findings of the board are deemed prima facie lawful and reasonable, and will not be set aside by the superior court absent errors of law, unless the court is persuaded, based upon a balance of the probabilities, on the evidence before it, that the board's decision is unreasonable.RSA 677:6(1996).The party seeking to set aside the board's decision bears the burden of proof on appeal to the superior court.Id .We will uphold the superior court's decision on appeal unless it is not supported by the evidence or is legally erroneous.Mt. Valley Mall Assocs. v. Municipality of Conway, 144 N.H. 642, 647, 745 A.2d 481(2000).Our inquiry is not whether we would find as the trial court found, but rather whether the evidence before the court reasonably supports its findings.Seeid.

The petitioners first argue that the superior court and the board erred in upholding the Officer's decision that Motiva could extend the use of its property under city ordinance 170–10(E) without board approval.

The interpretation of a zoning ordinance is a question of law, which we review de novo .Tausanovitch v. Town of Lyme,143 N.H. 144, 147, 722 A.2d 914(1998).Because the traditional rules of statutory construction generally govern our review, the words and phrases of an ordinance should be construed according to the common and approved usage of the language.Id ."[W]hen the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indications of legislative intent."Healey v. Town of New Durham,140 N.H. 232, 236, 665 A.2d 360(1995)(quotations and brackets omitted).Moreover, we will not guess what the drafters of the ordinance might have intended, or add words that they did not see fit to include.SeeAppeal of Brady , 145 N.H. 308, 310, 761 A.2d 1072(2000).

As set forth above, ordinance 170–10(E) provides, in pertinent part, that:

Where a district boundary divides one (1) lot and more than fifty percent (50%) of the area of such lot lies in the less restricted district, the regulations prescribed by this chapter for the less restricted district may apply to the remainder of said lot up to a distance of not more than fifty (50) feet from the district boundary.

As a general rule of statutory construction, the word "may" is permissive and implies the use of discretion.SeeAppeal of Rowan, 142 N.H. 67, 71, 694 A.2d 1002(1997).While the petitioners do not dispute the permissive language of city ordinance 170–10(E), they contend that it is a matter of discretion for the board to determine whether to grant the extension, and not a matter of right for the landowner.We disagree.

Ordinance170–10(E) is straightforward, providing property owners who own land divided by two different zoning districts the option of expanding the use of their property into a more restricted zone under certain circumstances.There is nothing in the city ordinance that either expressly or impliedly directs the property owner to seek board approval prior to extending the usage of property.Cf.Balduf v. Michaelis,29 Misc.2d 307, 215 N.Y.S.2d 670, 672(App.Div.1961)(ordinance providing that "[w]here a district boundary line divides a lot in a single ownership ... the Board of Appeals may permit the less restricted use to extend to the entire lot, but not more than fifty (50) feet beyond the boundary line...