Feins v. Town of Wilmot

• Decision Date: 18 January 2007
• Docket Number: No. 2005–832.,2005–832.
• Court: New Hampshire Supreme Court
• Parties: Jonathan FEINS and another v. TOWN OF WILMOT and another.

154 N.H. 715

919 A.2d 788

Jonathan FEINS and another

v.TOWN OF WILMOT and another.

No. 2005–832.

Supreme Court of New Hampshire.

Argued: Sept. 13, 2006.

Opinion Issued: Jan. 18, 2007.

Upton & Hatfield, LLP, of Concord (Matthew R. Serge and James F. Raymond on the brief, and Mr. Serge orally), for the petitioners.

Barto and Puffer, P.A., of Concord (Mark H. Puffer on the brief and orally), for the respondents.

HICKS, J.

The petitioners, Jonathan and Amy Feins, appeal an order of the Superior Court (McGuire, J.) affirming decisions of the Wilmot Zoning Board of Adjustment (ZBA) and the Wilmot Planning Board (board) denying their site plan and subdivision applications to divide four lots for the construction of condominiums. We reverse and remand.

The trial court's order recites the following facts: The petitioners own commercially zoned property in Wilmot (town). In 1997, they received cluster subdivision approval to divide the property into twelve lots for use as an office park. As of 2004, the property had not been commercially developed. At that time, the petitioners sought approval to build eight-unit multi-family dwellings on four of the lots previously subdivided. They also sought to further subdivide those lots for condominium conveyance.

On September 13, 2004, the board denied the petitioners' applications for site plan review and subdivision approval, stating the following reasons:

1. The application does not adhere to the density requirements pursuant to Article III Sections XI and XII of the Wilmot Zoning Ordinance.

2. The application is not consistent with the original intent of the cluster subdivision approvals as the original approvals were based on the applicant's representation that the sites within this subdivision were to be for commercial use, and the original subdivision approvals required the establishment of buffers between commercial activity and residential activity.

The petitioners appealed both to the ZBA and to the superior court. The ZBA affirmed the board's decision with regard to density and declined to rule on the second reason for denial. That decision was also appealed to the superior court and consolidated with the direct appeal.

The trial court affirmed, ruling that the board's denial of the petitioners' applications on the ground that the "proposed condominium development ... [was] contrary to the intent of the original approval was neither unlawful nor unreasonable." Given this ruling, the court found it unnecessary to reach the density issue. In addition, having found the board's decision neither unlawful nor unreasonable, the court affirmed the ZBA's affirmance of the board's decision.

On appeal, the petitioners contend that the trial court erred in affirming: (1) the board's denial of their applications on the ground that the proposed use was inconsistent with the original approval; and (2) the ZBA's determination that the petitioners' project is prohibited by the town's density regulations.

We have consistently applied the same standard of review in appeals from decisions of planning boards, see RSA 677:15 (1996 & Supp.2006) (amended 2005), and zoning boards of adjustment, see RSA 677:6 (1996). Bayson Properties v. City of Lebanon, 150 N.H. 167, 169, 834 A.2d 202 (2003).

[T]he burden of proof is on the party seeking to set aside the decision of the zoning board or planning board to show that the decision is unlawful or unreasonable. Under either statute, the appealing party must demonstrate that an error of law was committed or must persuade the trial court by the balance of probabilities that the board's decision was unreasonable.

Id. (citations omitted). We, in turn, will uphold the trial court's decision unless it is unsupported by the evidence or legally erroneous. See Fox v. Town of Greenland, 151 N.H. 600, 603, 864 A.2d 351 (2004) (zoning board of adjustment); Summa Humma Enters. v. Town of Tilton, 151 N.H. 75, 79, 849 A.2d 146 (2004) (planning board).

The petitioners first contend that the board erred in denying their applications on the ground that their proposed project was inconsistent with the previously-approved subdivision. They argue:

Focusing on the original intent of the subdivision when it was approved in 1997 is the wrong standard for reviewing the current applications. Were that the test, an owner of a subdivision, or any other project for which a land use approval was previously received, could not change the use of the property. Rather, the proper consideration for the Planning Board is whether the new proposal meets the requirements of zoning and meets the requirements of the subdivision and site plan regulations.

The petitioners further argue that aside from the purported density limitations cited in the board's first ground for denying the applications, the board "did not find that the Petitioners' project failed to comply with any other provisions of the zoning ordinance or planning regulations."

The town characterizes the petitioners' argument as a "claim that once property is subdivided, the subdivided lots can be used for any lawful purpose." The petitioners, however, deny this characterization, emphasizing that they recognized the need to apply, and did apply, for board approval of their new project. They contend that their claim is that the board "is required to review those applications based on current zoning and planning considerations, and not simply to deny the new application because this application was inconsistent with the uses envisioned by the 1997 applicants." Thus, we read the petitioners' argument to be that they were entitled to have their new applications reviewed on their own merits under the applicable regulations, unconstrained by the prior subdivision approval. Based upon the record before us, we agree.

We have been cited to no applicable law or regulation that would require a resubdivision of property to meet any standard or requirement different from an initial subdivision. Rather, the statutory definition of "subdivision" subsumes "resubdivision," and thus, absent any applicable law to the contrary, the two should be subject to identical standards. Specifically, RSA 672:14, I (1996) provides:

"Subdivision" means the division of the lot, tract, or parcel of land into 2 or more lots, plats, sites, or other divisions of land for the purpose, whether immediate or future, of sale, rent, lease, condominium conveyance or building development. It includes resubdivision and, when appropriate to the context, relates to the process of subdividing or to the land or territory subdivided.

On the basis of the record before us, we concur with the reasoning of the court in Purtill v. Town Plan and Zoning Commission of Glastonbury, 146 Conn. 570, 153 A.2d 441, 443 (1959) :

The defendant has not adopted regulations governing resubdivisions as distinguished from subdivisions. In the absence of such regulations, and in view of the statutory inclusion of a resubdivision in a subdivision and of the additional fact that the plan submitted by the plaintiff complied with the subdivision regulations, the [planning] commission lacked the authority to disapprove the plan.

We conclude that a purported inconsistency with the intent of a prior subdivision was not a proper ground for denying the petitioners' new subdivision and site plan applications. Accordingly, the trial court erred in upholding that decision.

Because the board gave a second, independent basis for denying the applications, resolution of this appeal requires that we address the petitioners' second claim of error; namely, that the trial court erred in affirming the ZBA's determination that the town's density regulations preclude the petitioners' project. The town contends that we should not reach this issue, as the trial court did not address it on the merits. The petitioners, on the other hand, argue that the issue is properly before us, as the trial court affirmed the ZBA's decision and the density question was the only issue before the ZBA.

Resolution of the density issue requires interpretation of the town's zoning ordinance. Because "[i]nterpretation of a zoning ordinance is a question of law for this court," Hurley v. Town of Hollis, 143 N.H. 567, 569, 729 A.2d 998 (1999), we may properly rule upon it without benefit of an initial determination by the trial court.

"Interpretation of a zoning ordinance ... requires us to determine the intent of the enacting body." Id. at 569–70, 729 A.2d 998 (citation and quotations omitted). We use the traditional rules of statutory construction when interpreting zoning ordinances. Duffy v. City of Dover, 149 N.H. 178, 181, 818 A.2d 1251 (2003). Thus, the "words used in a zoning ordinance will be given their ordinary meaning unless it appears from their context that a different meaning was intended." Meadowbrook Inn Corp. v. Sheridan, 120 N.H. 613, 615, 419 A.2d 1072 (1980). We determine the meaning of a zoning ordinance "from its construction as a whole, not by construing isolated words or phrases." KSC Realty Trust v. Town of Freedom, 146 N.H. 271, 273, 772 A.2d 321 (2001).

The record suggests that the board believed that a density restriction of two acres per dwelling unit precluded the petitioners' proposed condominium project. Just prior to the board's vote on the application, the chairman stated that his "opinion [wa]s that the ordinance is quite specific that 2 acres per dwelling [was the limit] in the commercial zone." The vice chairman then urged the board to "[s]tand strong on the density requirement of 2 acres per dwelling unit. This does not meet the density requirements of the ordinance."

The petitioners contend that the board's position on density is erroneous...