Governor's Island Club, Inc. v. Town of Gilford

• Decision Date: 28 October 1983
• Docket Number: 82-075,Nos. 82-065,s. 82-065
• Citation: 124 N.H. 126,467 A.2d 246
• Parties: GOVERNOR'S ISLAND CLUB, INC. v. TOWN OF GILFORD et al. Glenn W. SUTTON, Jr. et al. v. TOWN OF GILFORD et al.
• Court: New Hampshire Supreme Court

Page 246

467 A.2d 246

124 N.H. 126

GOVERNOR'S ISLAND CLUB, INC. v. TOWN OF GILFORD et al.

Glenn W. SUTTON, Jr. et al. v. TOWN OF GILFORD et al.

Nos. 82-065, 82-075.

Supreme Court of New Hampshire.

Oct. 28, 1983.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Eugene M. Van Loan, III, Manchester, on brief and orally), for Governor's Island Club, Inc.

Richard P. Brouillard, Laconia, for Glenn W. and Rita B. Sutton, joined in the brief of Governor's Island Club, Inc.

Wescott, Millham & Dyer, Laconia (Gary P. Westergren, Laconia, on brief and orally), for defendant Robert Gagne, Trustee of Robert Gagne Realty Trust No. 4.

BROCK, Justice.

These are consolidated appeals from a decision of the Superior Court (Cann, J.) approving the recommendation of a Master (Robert A. Carignan, Esq.) that a variance granted by the Gilford Zoning Board of Adjustment to the defendant Robert Gagne, as Trustee of Robert Gagne Realty Trust No. 4, be affirmed.

Because we conclude that the zoning board and the trial court erred in their application of the "unnecessary hardship" standard in this case, we reverse.

On August 29, 1980, the Gagne trust (Gagne) purchased, by means of a single deed, two parcels of land on Governor's Island in Lake Winnipesaukee, in the town of Gilford. One parcel consists of shorefront land, located between the lake shore and a road known as Edgewater Drive. The parcel contains approximately 49,683 square feet and has a lake frontage of just over 300 feet. The second parcel (the "interior parcel") lies directly across Edgewater Drive from the shorefront parcel and contains approximately 70,150 square feet. Both the lake shore and Edgewater Drive run roughly north-south in this area, with the road to the west of the shoreline.

Although each of the two parcels once contained two lots, all the land conveyed to Gagne has been in common ownership since 1947. The shorefront parcel is taxed by the town of Gilford as one lot. It contains a single-family residence on its southern portion and a garage on its northern portion. The interior parcel is undeveloped, except for a tennis court.

In September 1980, Gagne applied to the Gilford Planning Board for a subdivision of his property. The Gilford Zoning Ordinance requires that every shorefront building lot on Governor's Island have a lake frontage of at least 150 feet and a total area of at least 30,000 square feet. In order to conform to the area requirement, Gagne proposed the creation of two shorefront lots; each would include a small portion of the interior parcel. Thus, both lots would straddle Edgewater Drive.

The previous policy of the planning board had been to allow such subdivisions. However, this court's decision in Keene v. Town of Meredith, 119 N.H. 379, 402 A.2d 166 (1979), led the Board to rule that property divided by a roadway owned by the town, and not by the property owner, could not be considered as one lot for the purpose of meeting lot area requirements. The effect of this ruling is that any proposal by Gagne to create two shorefront lots could involve only his shorefront parcel. This would entail creation of at least one substandard lot, which would only be possible if Gagne could obtain a zoning variance from the board of adjustment.

On November 14, 1980, Gagne applied for such a variance. He proposed to subdivide his shorefront parcel into two lots, each with 150 feet of lake frontage. The southern lot would contain 22,572 square feet, while the northern lot would have 27,111 square feet. Gagne also proposed that, as a condition of the variance, his interior parcel would be preserved as open space and could only be conveyed to an owner or abuttor of the shorefront lots. Although Gagne in his appearance before the board of adjustment questioned the planning board's interpretation of Keene and its bearing on the legal effect of the roadway, that issue is not before us in this appeal. Accordingly, we need not decide whether the board's interpretation of Keene was correct.

The board of adjustment granted the requested variance and affirmed its decision on rehearing, attaching the condition that Gagne's interior parcel be permanently dedicated as open space. The plaintiffs in these cases, the Governor's Island property owners' organization and abutters to the Gagne property, appealed the board's decision to the superior court. The master, after viewing the property and conducting a hearing, recommended affirmance of the board's decision, and the court approved the recommendation. These appeals followed.

This court has adopted a five-part test for granting variances, based on RSA 31:72, III. The test was restated most recently in Ryan v. City of Manchester Zoning Board, 123 N.H. 170, 459 A.2d 244 (1983):

"To obtain a variance, the applicant must...