Fisher v. City of Dover
| Decision Date | 13 March 1980 |
| Docket Number | No. 79-056,79-056 |
| Citation | 412 A.2d 1024,120 N.H. 187 |
| Parties | Clara R. FISHER v. CITY OF DOVER and another. |
| Court | New Hampshire Supreme Court |
Fisher, Parsons, Moran & Temple, Dover, by brief, for plaintiff.
Scott E. Woodman, City Atty., Dover, by brief, for defendant city of Dover.
William E. Galanes, Dover, by brief, for defendant McQuade Realty, Inc.
This is an appeal under RSA 31:77 by the plaintiff Clara Fisher from a decree of the Strafford County Superior Court (Goode, J.) upholding a decision of the Zoning Board of Adjustment of the city of Dover, dated August 19, 1976, granting a variance to the defendant, McQuade Realty, Inc.
McQuade Realty first applied to the board for a variance to convert its thirty-two room house into a multi-family apartment complex in 1973. On October 19, 1973, the board granted the variance, but upon appeal to the superior court, the order granting the variance was vacated and the case was remanded to the board. After holding another hearing on the application, the board again granted the variance on December 5, 1974. Another appeal to the superior court resulted in an order, dated September 18, 1975, remanding the case to the board for further proceedings not inconsistent with the court's finding and ruling that a majority of the members of the board considering the application for the variance were not "indifferent" (RSA 31:73) and that the board's finding that the variance did not adversely affect adjacent property was "unreasonable and unjust." On May 13, 1976, the board, citing the decision of the superior court, denied the variance without taking further evidence. McQuade Realty did not petition for a rehearing under RSA 31:74 (Supp.1977).
Thereafter, on July 30, 1976, McQuade Realty filed a second application for a variance which it is conceded was substantially the same as the variance previously requested and ultimately denied by the board. The board granted the variance on August 19, 1976, affirmed its decision after rehearing on September 30, 1976, and plaintiff once again appealed to the superior court pursuant to RSA 31:77.
An evidentiary hearing, at which only the chairman of the zoning board testified, was held before the superior court on January 11, 1977. On April 11, 1978, a decree of the superior court issued which, while referring to the long and tortured history of the case and the woeful lack of record of the various proceedings which had taken place before the board, concluded that plaintiff had not sustained her burden under RSA 31:78 of overcoming the statutory presumption that findings of a zoning board of adjustment are prima facie lawful and reasonable.
At all times relevant to this case, RSA 31:78 provided:
Burden of Proof. Upon the hearing the burden of proof shall be upon the party seeking to set aside any order or decision of the board of adjustment or legislative body to show that the same is unreasonable or unlawful, and all findings of the board of adjustment or legislative body of such municipality upon all questions of fact properly before it shall be deemed to be prima facie lawful and reasonable; and the order or decision appealed from 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.
Plaintiff contends that the denial of the first application in May 1976, precluded the board from granting the one filed in July 1976. She argues here that she sustained her burden before the superior court by proving that the board committed an error of law when it last granted the variance to the defendant without first finding that a material change of circumstances affecting the merits of the application had occurred or that the second application for a variance was for a use that materially differed in nature and degree from the use previously applied for and denied by the board. Fiorilla v. Zoning Board of Appeals, 144 Conn. 275, 278-79, 129 A.2d 619, 621 (1957); Bois v. Manchester, 113 N.H. 339, 341, 306 A.2d 778, 780 (1973).
It is apparent from the transcript of the January 11, 1977 proceedings before the superior court that the zoning board of adjustment misunderstood the legal requirements attending its reconsideration of a previously denied variance request, the denial of which was not appealed. The chairman of the board, Mr. Gentautus, testified, with respect to the second application, as follows:
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