Healey v. Town of New Durham Zoning Bd. of Adjustment, 94-095

• Decision Date: 22 September 1995
• Docket Number: No. 94-095,94-095
• Citation: 665 A.2d 360,140 N.H. 232
• Parties: Charles and Doris HEALEY v. TOWN OF NEW DURHAM ZONING BOARD OF ADJUSTMENT. Gullmar and Shirley NELSON v. TOWN OF NEW DURHAM ZONING BOARD OF ADJUSTMENT.
• Court: New Hampshire Supreme Court

Page 360

665 A.2d 360

140 N.H. 232

Charles and Doris HEALEY v. TOWN OF NEW DURHAM ZONING BOARD OF ADJUSTMENT.

Gullmar and Shirley NELSON v. TOWN OF NEW DURHAM ZONING BOARD OF ADJUSTMENT.

No. 94-095.

Supreme Court of New Hampshire.

Sept. 22, 1995.

McNeill & Taylor, P.A., Dover (Malcolm R. McNeill, Jr. and Lynne M. Dennis on the brief, and Mr. McNeill orally), for plaintiffs Charles and Doris Healey.

Ouellette, Hallisey, Dibble and Tanguay, P.A., Dover (William L. Tanguay on the brief and orally), for plaintiffs Gullmar and Shirley Nelson.

Nighswander, Martin & Mitchell, P.A., Laconia, for the defendant, filed no brief.

JOHNSON, Justice.

The question presented is whether a certain house, garage, and paved driveway violate the Town of New Durham Zoning and Land Use Ordinance (zoning ordinance). We hold that they do and affirm the decision of the Superior Court (Fauver, J.).

The following facts are not in dispute. Plaintiffs Gullmar and Shirley Nelson own land on the shore of Merrymeeting Lake in New Durham. In 1988, the Nelsons applied to the Town of New Durham Zoning Board of Adjustment (ZBA) for three variances from certain setback requirements in the zoning ordinance. In their application they proposed to construct a one-family dwelling, a one-car garage, and a sewage system. They submitted to the ZBA a lot layout plan, which depicted a proposed dwelling with two bedrooms, a garage, and a shed. The plan did not depict a driveway. The ZBA approved the plan and granted the Nelsons' variance requests based upon the terms of the submitted application and layout plan. The Nelsons built a house and a garage in 1988.

In March 1990, the Town of New Durham (town) enacted a "Shorefront Conservation Area" amendment (conservation amendment) to its zoning ordinance. Upon passage of the conservation amendment, the Nelsons' property became part of a newly-established shorefront district. Within this district, the conservation amendment prohibited multi-family dwellings and required that "[n]ot more than 20% of a lot shall be covered by impervious surface. Ten percent building-ten percent parking." Town of New Durham Zoning Ordinance Amendment, art. IV, § A(2). The Nelsons paved a driveway after the passage of the conservation amendment; the parties dispute whether the paving occurred in October 1990 or 1991. The Nelsons concede that the impervious, paved surface of their driveway exceeds the limit imposed by the conservation amendment. The driveway begins at the road, extends past the garage, and ends beside the Nelsons' house.

Plaintiffs Charles and Doris Healey are abutters to the Nelsons' property. The Nelsons' driveway runs along the border to their lot. On August 12, 1992, the Healeys wrote a letter to the town selectmen and the ZBA complaining that the Nelsons had violated several provisions of the zoning ordinance.

The letter led to a hearing before the ZBA. The ZBA determined that the Nelsons' house was a one-family dwelling, but that the Nelsons had violated the impervious surface limit in the conservation amendment by paving a driveway and had deviated from the terms of their variance by building a two-car garage. The ZBA denied the parties' motions for rehearing, and both parties appealed to the superior court.

The superior court took a view of the Nelsons' property and reviewed the record transferred by the ZBA. The court concluded that the Nelsons had violated the terms of the zoning ordinance, their variance, and their building permit by building a two-family dwelling and a two-car garage, and by installing a paved driveway. The court vacated the ZBA decision regarding the house, ordered the Nelsons to modify their garage, and remanded to the ZBA for a determination of what portions of the impervious paved surface needed to be removed to comply with the conservation amendment. The Nelsons appealed.

On appeal the Nelsons argue that their house is a one-family dwelling and that the trial court's finding to the contrary is clearly erroneous because use of their house as a two-family dwelling would be impractical and would violate various safety codes. The Nelsons do not contest that they built a two-car garage but argue that because the zoning ordinance does not prohibit two-car garages, they were entitled to build one. They argue that they had a vested right to pave their driveway or, in the alternative, that the town is estopped from enforcing the impervious surface provision against them. In addition, they argue that the Healeys' complaints are barred by laches. Finally, the Nelsons contend that the trial court did not apply the proper deference to the ZBA's factual findings. We do not address this procedural argument because the trial court's factual findings are consistent with those of the ZBA, and because we decide the issues as a matter of law.

I. House

We first address the question of whether the Nelsons' house is a one- or two-family dwelling. We will uphold the trial court's factual findings unless they are unsupported by the evidence. See Cohen v. Town of Henniker, 134 N.H. 425, 426, 593 A.2d 1145, 1146 (1991).

The trial court's factual findings regarding the composition of the Nelsons' house are consistent with those of the ZBA. The house has three floors. The bottom floor comprises a full kitchen, a full bathroom, a living room, and two rooms that the trial court found "could be easily converted [into bedrooms] by the placement of beds or other sleeping facilities." The middle floor, which the court determined to be the "primary living space," also comprises a full kitchen, a full bathroom, and two bedrooms. Another full bathroom is located on the top floor. The bottom level can be entered without passing through the upper levels, and the upper levels can be entered without passing through the bottom level. We adopt these findings because they are amply supported by the record. See Cohen, 134 N.H. at 426, 593 A.2d at 1146.

Interpretation of a zoning ordinance is a question of law for this court, and we are not bound by the ZBA or trial court's application of zoning provisions to specific facts. See Brennan v. Winnipesaukee Flagship Corp., 122 N.H. 524, 526, 446 A.2d 1175, 1177 (1982).

The 1988 zoning ordinance defines "dwelling" as "a building for eating, sleeping and living" and "dwelling unit" as "an area within a building complex to be used by one person or family with its own and separate bath, toilet and kitchen facilities." Town of New Durham Zoning and Land Use Ordinance, art. XII(s), (t).

In general, the traditional rules of statutory construction will govern here. Thus, the words and phrases of [an ordinance] should always be construed according to the common and approved usage of the language, but where the [ordinance] defines the term in issue, that definition will govern. Further, when the language of [the ordinance] is plain and unambiguous, we need not look beyond the [ordinance] itself for further indications of legislative intent.

Lemm Development Corp. v. Town of Bartlett, 133 N.H. 618, 620, 580 A.2d 1082, 1083 (1990) (quotations, citations, and brackets omitted).

The trial court's view clearly revealed that the Nelsons' house comprises two areas, each "with its own separate bath, toilet and kitchen facilities." Town of New Durham Zoning and Land Use Ordinance, art. XII(t). Our task is to interpret the phrase "to be used by one person or family," id. See Brennan, 122 N.H. at 526, 446 A.2d at 1177. The word "be," when used with an infinitive, expresses "futurity" or "arrangement in advance." Webster's Third New International Dictionary 189 (unabridged ed. 1961). We therefore must decide whether future use is determined objectively, i.e., by looking at the structure's internal composition, or subjectively, i.e., by divining the Nelsons' intent. A subjective test could lead to unjust results because identical houses could be classified differently. Cf. Raudonis v. Ins. Co. of North America, 137 N.H. 57, 61, 623 A.2d 746, 749 (1993) (avoiding interpretation that would lead to absurd result). Moreover, the mere existence of unusually large houses in a one-family residence district, irrespective of the use to which the houses are put, poses a danger of "overcrowding of land," the avoidance of which is a stated objective of the town's zoning ordinance. See Town of New Durham Zoning and Land Use Ordinance, art. I; cf. Sullivan v. Anglo-American Investment Trust Co., 89 N.H. 112, 116, 193 A. 225, 227 (1937). We conclude that under the zoning ordinance, classification as a one- or multiple-family dwelling hinges on the dwelling's adaptability for use, as adjudged by the number of separate areas within containing a bath, toilet, and kitchen that could be used by one person or family.

We note that in its analysis, the trial court looked to the definition of "dwelling unit" found in the section of the town's building code relating to fire control. The fire control section explicitly provides that the defined terms apply only in that section. The trial court thus erred by considering the definitions in the safety code rather than those in the zoning ordinance.

The Nelsons contend that their house is not a two-family dwelling because it has only one heating system, one hot water system, one electrical system, and one septic system, and because if characterized as a two-family dwelling, the house violates various safety codes. We disagree. As noted above, the ordinance defines dwellings according to the number of separate baths, toilets, and kitchen facilities. Accordingly, we affirm the trial court's determination that the Nelsons violated the zoning ordinance by constructing a two-family residence.

II. Garage

We next address the Nelsons' claim that because the zoning ordinance establishes setback requirements but does not restrict garage capacity, whether their garage can accommodate more than one car is inconsequential. Thus they appear to argue that the terms...