Goslin v. Town of Farmington

• Decision Date: 27 July 1989
• Docket Number: No. 88-333,88-333
• Citation: 132 N.H. 48,561 A.2d 507
• Parties: Randall GOSLIN and Donna Goslin v. TOWN OF FARMINGTON.
• Court: New Hampshire Supreme Court

Page 507

561 A.2d 507

132 N.H. 48

Randall GOSLIN and Donna Goslin v. TOWN OF FARMINGTON.

No. 88-333.

Supreme Court of New Hampshire.

July 27, 1989.

Fisher, Willoughby, Clancy, Woodman & Durand, Dover (Scott E. Woodman on the brief and orally), for plaintiffs.

Cooper, Hall, Whittum & Shillaber P.C., Rochester (Carl W. Potvin on the brief and orally), for defendant.

BATCHELDER, Justice.

The defendant, the Town of Farmington, appeals a Superior Court (Contas, J.) order reversing a decision of the zoning board of adjustment (ZBA) denying the plaintiffs' application for a variance. The town contends, inter alia, that the plaintiffs failed to establish before either the ZBA or the trial court that they were entitled to a variance. We agree with the town, and therefore reverse the trial court's order.

Randall and Donna Goslin reside at and own 11.8 acres of land on Dream Hill Terrace in Farmington. Their lot is part of a six-lot subdivision, each lot being of approximately equal size, which the Farmington Planning Board approved in 1976. Dream Hill Terrace is a private gravel road which begins at its intersection with Dick Dame Lane, a public road, and runs in a westerly direction through five of the six lots. The plaintiffs' lot is approximately one mile from the intersection of Dream Hill Terrace and Dick Dame Lane. As a condition of subdivision approval in 1976, Randall Goslin and the other lot owners agreed that no further subdivision of their lots could take place until the town accepted Dream Hill Terrace as a public road. This condition was recorded on the subdivision plat in the registry of deeds. The town has not yet accepted the road according to statutory procedures. See, e.g., RSA 229:1: RSA ch. 231 (1982 and Supp.1988). In addition, the six lot owners agreed in writing to maintain the road until the town accepted it.

In 1978, the plaintiffs and other landowners made $11,500 worth of improvements to Dream Hill Terrace. These improvements included widening the road, adding culverts, and laying gravel, but not paving. The lot owners obtained a written statement from the town's road agent, Carl Baldwin, which read: "This is to certify that Carl Baldwin, road agent, approves [the] gravel road located on Dream Hill Terrace, Farmington, N.H., as up to standards for gravel road in Farmington, N.H." Plaintiff Randall Goslin testified at trial that he and the other landowners were led to believe that the road improvements and the road agent's certification of compliance with gravel road standards would satisfy the condition on the plat.

Jane Cooper Fall, a member of the Farmington Planning Board since 1976, testified that town regulations require the plaintiffs' road to be paved before it can be accepted, although the written regulation mentioning that requirement is not in the trial record.

The differences between the plaintiffs' and the town's understandings of what satisfied Farmington's road specifications and of the meaning of the condition on the subdivision plat came to a head when the plaintiffs wanted to subdivide their 11.8 acres into four lots, three of which they would give to their children. On March 10, 1987, the town adopted an amendment to its land use ordinance requiring subdivisions of two or more lots to have a certain amount of frontage, depending on the lot size, on a Class V or better road, or on a private road built to town standards. See RSA 229:5, VI (defining a Class V road). Two days later, the plaintiffs applied to the ZBA for a variance from the amended ordinance. See RSA 674:33, I(b). The ZBA, after a hearing on April 2, 1987, denied the variance.

To obtain a variance, the plaintiffs had to demonstrate to the ZBA that: (1) denying the variance would impose on them an unnecessary hardship; (2) surrounding properties would not suffer a diminution in value; (3) the proposed use would not be contrary to the spirit of the ordinance; (4) allowing the variance would be in the public interest; and (5) granting the variance would accomplish substantial justice. Rowe v. Town of North Hampton, 131 N.H. 424, ----, 553 A.2d 1331, 1333 (decided February 6, 1989); Biggs v. Town of Sandwich, 124 N.H. 421, 427, 470 A.2d 928, 932 (1984). In its decision, the ZBA determined that the variance would not cause a diminution of neighboring property values and that a variance would benefit the public interest because it would "be neither of benefit or of no benefit." The ZBA ruled against the plaintiffs on the other variables, however. The ZBA found that denying the variance would not create a hardship, as no evidence of a hardship had been presented; that the justice to the plaintiffs would not outweigh the injustice to the frontage requirements; and that a variance would be contrary to the spirit of the ordinance because the subdivision had no Class V or better road. The plaintiffs then requested a rehearing, at which they proposed to offer evidence concerning, inter alia, their 1978 road improvements and the certification from road agent Baldwin. Upon the ZBA's denial of a rehearing, the plaintiffs appealed to the superior court.

In reviewing a denial of a variance, the trial judge must accept the ZBA's findings as prima facie lawful and reasonable, and the judge may reverse the decision only for errors of law or if, by a balance of probabilities on the evidence before the court, the decision is unreasonable. RSA 677:6; Rowe, 131 N.H. at ----, 553 A.2d at 1333. After a one-day trial, the court concluded that the ZBA's denial of the plaintiffs' application for a variance worked an unnecessary hardship because the plaintiffs were left with only one buildable lot on 11.8 acres of land. The court stated that the ordinance unduly restricts the plaintiffs' use of their land and, in conclusory fashion, observed that "the restriction is due to special conditions unique to their land." The court also ruled that granting the variance would do substantial justice to the plaintiffs, as they justifiably had relied on the road agent's certification. Finally, the court held that the variance would not be contrary to the spirit and intent either of the road frontage amendment specifically, or Farmington's land use ordinance generally. The court later denied the town's motion to set aside the decree, prompting this appeal.

We...