Hannigan v. City of Concord
| Decision Date | 21 July 1999 |
| Docket Number | 97-666 |
| Citation | 738 A.2d 1263 |
| Parties | THOMAS H. HANNIGAN & a. v. CITY OF CONCORDTHE SUPREME COURT OF NEW HAMPSHIRE |
| Court | New Hampshire Supreme Court |
Merrimack
Sheehan Phinney Bass + Green, P.A., of Manchester (William J. Donovan on the brief), and Ropes & Gray, of Boston, Massachusetts (Thomas H. Hannigan, Jr. on the brief and orally), for the plaintiffs.
Paul F. Cavanaugh, city solicitor, of Concord, for the defendant, filed no brief.
Sulloway & Hollis, P.L.L.C., of Concord (Jeffrey S. Cohen and Timothy A. Gudas on the brief, and Mr. Gudas orally), for the intervenor, Concord Country Club.
The plaintiffs, Thomas and Mary Hannigan and Russell Matthews, appeal an order of the Superior Court (Smukler, J.) affirming the decisions of the Concord Planning Board (planning board) and Zoning Board of Adjustment (ZBA) allowing the intervenor, Concord Country Club (club), to construct a golf course maintenance building and access way in residential districts abutting the plaintiffs' properties. On appeal, the plaintiffs argue that the trial court erred by: (1) ruling that a proposed maintenance building was a permitted accessory use; (2) affirming the grant of a special exception to construct an access way; (3) ruling that there was adequate frontage for the maintenance building and driveway; and (4) affirming the planning board's finding that Bowen Brook, a protected watercourse, did not flow over the proposed site. We affirm.
The club proposes to build an 8,000 square foot maintenance building for its golf course behind the plaintiffs' properties. Its proposed location is on the opposite side of a knoll approximately 280 feet from the nearest house. The club also seeks to build a driveway, approximately twenty feet wide, in a wooded area between the plaintiffs' properties for access to the building. The maintenance building will be located in the residential country (RD) district, which permits country clubs and golf courses as a matter of right. While some of the driveway will be in the RD district, it will be principally located in the residential suburban (RC) district, where golf courses are permitted solely by special exception.
In March 1996, the ZBA granted the club's application for a special exception to construct the driveway in the RC district and subsequently denied the plaintiffs' motion for a rehearing. In early April, the planning board conditionally approved the club's site plan for the maintenance building and driveway. The planning board later granted full approval. On appeal, the superior court affirmed the ZBA's decision, reasoning that the club had presented sufficient evidence to satisfy the criteria for a special exception. With respect to the planning board's decision, the court concluded that the proposed maintenance building constituted a permitted accessory use to a golf course and upheld the board's determinations on frontage compliance and the location of Bowen Brook. The court denied the plaintiffs' motion for reconsideration, and this appeal followed.
The question for our review is whether the superior court correctly upheld the decisions of the planning board and ZBA approving the club's proposal. The superior court was obligated to treat the factual findings of both boards as prima facie lawful and reasonable and could not set aside their decisions absent unreasonableness or an identified error of law. Deer Leap Assocs. v. Town of Windham, 136 N.H. 555, 557, 618 A.2d 837, 838 (1992) (planning board); Dube v. Town of Hudson, 140 N.H. 135, 137, 663 A.2d 626, 628 (1995) (ZBA); see RSA 677:6, :15, V (1996). We will uphold the superior court's decision unless it is unsupported by the evidence or is legally erroneous. Cormier v. Town of Danville, 142 N.H. 775, 777, 710 A.2d 401, 403 (1998).
We first address the plaintiffs' argument that the superior court erred in affirming the planning board's decision that the proposed maintenance building is a permitted accessory use to a golf course under the Concord Zoning Ordinance (ordinance). The plaintiffs contend that the court's ruling is contrary to the language and structure of the ordinance.
The interpretation of a zoning ordinance and the determination of whether a particular use is an accessory use are questions of law for this court to decide. See City of Concord v. New Testament Baptist Church, 118 N.H. 56, 58, 382 A.2d 377, 379 (1978) (ordinance); Gratton v. Pellegrino, 115 N.H. 619, 621, 348 A.2d 349, 351 (1975) (accessory use). The ordinance at issue provides, Concord, N.H., Zoning Ordinance art. 28-1-1 (1994). This language makes it clear that the ordinance is "permissive," that is, it "prohibit[s] uses of land unless they are expressly permitted as primary uses or can be found to be accessory to a permitted use." Town of Windham v. Alfond, 129 N.H. 24, 27, 523 A.2d 42, 43-44 (1986).
The ordinance expressly permits country clubs and golf courses as a matter of right in the RD district, which includes the site of the club's proposed maintenance building. The ordinance does not specifically permit or prohibit a golf course maintenance building. It does, however, provide the following definition for an "Accessory Use or Structure": "A use or structure on the same lot with, and of a nature incidental and subordinate to, the principal use or structure." Concord, N.H., Zoning Ordinance art. 28-2-1 (1994). In concluding that the proposed maintenance building qualifies as an "accessory use," the superior court determined that the club's proposed maintenance building was "incidental and subordinate" to the operation of the golf course. The court also found that, as a result of the consolidation of the club's properties, the maintenance building was to be built on the same lot as the golf course. We conclude that the court's ruling was supported by the record and was not legally erroneous.
The phrase "incidental and subordinate" requires that the accessory use be minor in relation to the permitted use and that it bear a reasonable relationship to the primary use. Becker v. Town of Hampton Falls, 117 N.H. 437, 440, 374 A.2d 653, 655 (1977). The proposed maintenance building will be used for the storage of lawn mowers, fertilizers, and other tools and supplies employed in the operation and upkeep of the golf course. It will occupy only a small portion of the club's property and is designed to serve the golf course. Moreover, the plaintiffs acknowledge that the maintenance building will house "golf course maintenance equipment" and fertilizers and other supplies "used in golf course maintenance." It is apparent, therefore, that the maintenance building bears a reasonable relationship to the golf course.
The plaintiffs argue that the ordinance permits only the specific accessory uses listed in its "Table of Uses." Their argument, however, misapplies the doctrine of accessory uses and miscasts the ordinance. "The rule of accessory use is a response to the impossibility of providing expressly by zoning ordinance for every possible lawful use." Town of Salem v. Durrett, 125 N.H. 29, 32, 480 A.2d 9, 10 (1984). Accordingly, the rule of accessory uses recognizes that owners may employ land in ways an ordinance does not expressly permit. Treisman v. Town of Bedford, 132 N.H. 54, 59, 563 A.2d 786, 789 (1989). An accessory use of property is, by definition, "one that is not expressly permitted by the ordinance itself." Town of Windham, 129 N.H. at 28, 523 A.2d at 45. The doctrine of accessory uses applies to all zoning ordinances, even those structured as permissive. Id. at 27-29, 523 A.2d at 43-45.
The plaintiffs' argument also overlooks the definition of "accessory use" in the ordinance. If, as the plaintiffs assert, the only permitted accessory uses are those specifically listed, then the ordinance's general definition of accessory use would be rendered superfluous. See State v. P. T. & L. Const. Co., Inc., 389 A.2d 448, 451 (N.J. 1978) (); see also Merrill v. Great Bay Disposal Serv., 125 N.H. 540, 543, 484 A.2d 1101, 1103 (1984) (). Thus, we agree with the club that the table of uses "was intended only to provide examples of valid accessory uses for ease of administration of the ordinance." P. T. & L. Const. Co., Inc., 389 A.2d at 451. "Otherwise any number of other uses, unquestionably incident to the main use as a matter of custom or convenience, would automatically be disqualified." Id. Further, a review of the ordinance reveals that the listing of specific accessory uses is essentially limited to those different in kind from the permitted primary use, such as a child care agency in a private residence or a heliport associated with a hospital or nursing home. Cf. Hancock v. Concord, 111 N.H. 413, 414, 285 A.2d 791, 792 (1971) ().
Although the plaintiffs argue in their brief that the proposed maintenance building fails to meet the common law test for an accessory use, they concede in their notice of appeal that this test does not apply in the present case. Therefore, we need not address this argument further.
Finally, the plaintiffs' characterization of the proposed maintenance building as a commercial or industrial operation overlooks its intended function. Unlike a gasoline filling station or an automobile dealership, the proposed maintenance building will not offer commercial services to the general public. Rather, it will be used solely for the storage of tools, equipment, and other supplies employed in the operation and upkeep of the golf...
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