Harrington v. Town of Warner, No. 2003-687 (NH 4/4/2005)
| Decision Date | 04 April 2005 |
| Docket Number | No. 2003-687,2003-687 |
| Parties | JOHN R. HARRINGTON & a. v. TOWN OF WARNER |
| Court | New Hampshire Supreme Court |
Sulloway & Hollis, P.L.L.C., of Concord (Margaret H. Nelson on the brief and orally), for the petitioners.
Gallagher, Callahan & Gartrell, P.A., of Concord (Donald E. Gartrell on the brief and orally), for the respondent.
Peter Wyman obtained a variance from the Town of Warner Zoning Board of Adjustment (ZBA) to expand his current manufactured housing park, Pleasant Lake Estates, to include twenty-five additional sites. The abutting landowners, petitioners John R. and Fernanda Harrington (abutters), appeal from an order of the Superior Court (Smukler, J.) affirming the ZBA's decision. We affirm.
The following facts were found by the trial court or are evident from the record. Pleasant Lake Estates is located on a forty-six-acre parcel of land in Warner that is zoned as a medium density residential district (R-2). The park currently utilizes twenty-six acres of the property and consists of thirty-three manufactured homes and fifty-four campground sites. Wyman sought to expand Pleasant Lake Estates by adding twenty-six additional manufactured homes on the remaining twenty acres of the property. Article XIII, section E of Warner's zoning ordinance pertains to manufactured housing parks and provides:
Where Allowed: Manufactured housing parks shall be allowed in all but the commercial district (C1) and Business district (B1) and consist of a minimum of 10 acres and at least two (2) sites. The maximum number of sites shall not exceed 25. Housing sites shall not include wetlands, water bodies, roads, severe slopes or open space on individual sites.
Warner, N.H., Zoning Ordinance art. XIII, § E(1) (2002). Wyman sought a variance for the expansion because the respondent Town of Warner (Town) was uncertain whether his proposal was permitted under the zoning ordinance.
Following two public meetings and a site walk, the ZBA voted to grant the variance but limited the expansion to twenty-five additional sites to be added at the rate of five lots per year. The abutters appealed the ZBA's decision. Following a hearing, the trial court ruled that the ZBA acted reasonably and lawfully in concluding that Wyman met his burden of establishing the criteria necessary for a variance. This appeal followed.
The abutters argue that the trial court erred in affirming the ZBA's decision to grant the variance because Wyman failed to satisfy the criteria for a variance. Specifically, the abutters argue that Wyman: (1) failed to show unnecessary hardship; (2) created any financial hardship he suffered because the zoning restrictions preceded his purchase of the property; (3) failed to show that the variance was consistent with the spirit of the ordinance; (4) failed to show that the variance did not derogate from the intent or purpose of the ordinance; and (5) failed to show that substantial justice would be done in granting the variance.
Our review in zoning cases is limited. Hill v. Town of Chester, 146 N.H. 291, 292 (2001). The factual findings of the ZBA are deemed prima facie lawful and reasonable, and will not be set aside by the trial court absent errors of law, unless the court is persuaded, based upon a balance of probabilities, on the evidence before it, that the ZBA's decision is unreasonable. Duffy v. City of Dover, 149 N.H. 178, 180 (2003). The party seeking to set aside the ZBA's decision bears the burden of proof on appeal to the trial court. Id. We will uphold the trial court's decision on appeal unless it is not supported by the evidence or is legally erroneous. Id.
Our cases interpreting RSA 674:33, I(b) (1996) have long recognized a five-part test for the granting of variances. See, e.g., Ryan v. City of Manchester Zoning Board, 123 N.H. 170, 173 (1983). To obtain a variance, a landowner bears the burden of showing that: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; (4) substantial justice is done; and (5) granting the variance will not diminish the value of surrounding properties. Shopland v. Town of Enfield, 151 N.H. 219, 222 (2004); see RSA 674:33, I(b).
We first address the abutters' argument that the trial court erred in ruling that the ZBA acted lawfully and reasonably in finding that Wyman met his burden of showing unnecessary hardship. Our recent decisions have attempted to clarify the unnecessary hardship standard.
In Boccia v. City of Portsmouth, 151 N.H. 85, 91-92 (2004), we distinguished between use and area variances when determining whether an applicant established unnecessary hardship. We held that, when an applicant seeks an area variance, the following factors should be considered in the hardship calculation: (1) whether an area variance is needed to enable the applicant's proposed use of the property given the special conditions of the property; and (2) whether the benefit sought by the applicant can be achieved by some other method reasonably feasible for the applicant to pursue, other than an area variance. Id. at 92.
When, however, an applicant seeks a use variance, the standard set forth in Simplex Technologies v. Town of Newington, 145 N.H. 727, 728 (2001), applies. See Boccia, 151 N.H. at 92. In Simplex, the applicant sought a use variance to operate commercial businesses in an industrial zone. Simplex Technologies, 145 N.H. at 728. To establish unnecessary hardship for a use variance, an applicant must show that: (1) the zoning restriction as applied interferes with the applicant's reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others. Id. at 731-32. Thus, as a threshold matter, we must determine whether the variance sought by Wyman was an area or use variance. See Boccia, 151 N.H. at 91-92.
A use variance allows the landowner to engage in a use of the land that the zoning ordinance prohibits. Id. at 90. Use variances pose a greater threat to the integrity of a zoning scheme because the fundamental premise of zoning laws is the segregation of land according to uses. Bacon v. Town of Enfield, 150 N.H. 468, 477 (2004) (Duggan and Dalianis, JJ., concurring specially).
An area variance is generally made necessary by the physical characteristics of the lot. Boccia, 151 N.H. at 90. In contrast to a use variance, an area variance involves a use permitted by the zoning ordinance but grants the landowner an exception from strict compliance with physical standards such as setbacks, frontage requirements, height limitations and lot size restrictions. Id. As such, an area variance does not alter the character of the surrounding area as much as a use not permitted by the ordinance. Bacon, 150 N.H. at 477 (Duggan and Dalianis, JJ., concurring specially).
The critical distinction between area and use variances is whether the purpose of the particular zoning restriction is to preserve the character of the surrounding area and is thus a use restriction. See 3 A. H. Rathkopf & D. A. Rathkopf, Rathkopf's The Law of Zoning and Planning § 58:4, at 58-17 (2004). If the purpose of the restriction is to place incidental physical limitations on an otherwise permitted use, it is an area restriction. See Boccia, 151 N.H. at 90. Whether the variance sought is an area or use variance requires a case-by-case determination based upon the language and purpose of the particular zoning restriction at issue. Accordingly, to resolve this question, we must interpret the Town's zoning ordinance to determine the purpose of the zoning restriction.
The interpretation of a zoning ordinance is a question of law, which we review de novo. Duffy, 149 N.H. at 181. Because the traditional rules of statutory construction generally govern our review, the words and phrases of an ordinance should be construed according to the common and approved usage of the language. Id. When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indications of legislative intent. Id. Moreover, we will not guess what the drafters of the ordinance might have intended, or add words that they did not see fit to include. Id.
As set forth above, article XIII, section E of the Town's zoning ordinance provides that manufactured housing parks Warner, N.H., Zoning Ordinance art. XIII, § E(1).
The plain language of the ordinance appears to fix the maximum number of manufactured housing sites in a park at twenty-five for any parcel of land ten acres in size or larger. This interpretation is supported by another section of the zoning ordinance, which regulates manufactured housing subdivisions with essentially identical language. See Warner, N.H., Zoning Ordinance art. XIII, § F. Under that section, a subdivision must consist of a minimum of twelve acres, and "[t]he maximum number of lots in any manufactured housing subdivision shall not exceed 25." Id. at § F(0), (2) (emphasis added). By the express terms of this ordinance, the size of a manufactured housing subdivision is limited to twenty-five, regardless of the underlying acreage.
Considering the language of these similar provisions, we hold that the ordinance is unambiguous. See Duffy, 149 N.H. at 181. Similar to the subdivision provision, the manufactured housing park provision...
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