Husnander v. Town of Barnstead

• Decision Date: 21 April 1995
• Docket Number: No. 93-626,93-626
• Citation: 139 N.H. 476,660 A.2d 477
• Parties: Mark L. HUSNANDER v. TOWN OF BARNSTEAD & a.
• Court: New Hampshire Supreme Court

Page 477

660 A.2d 477

139 N.H. 476

Mark L. HUSNANDER v. TOWN OF BARNSTEAD & a.

No. 93-626.

Supreme Court of New Hampshire.

April 21, 1995.

As Modified on Denial of Reconsideration July 5, 1995.

Nighswander, Martin & Mitchell, P.A., Laconia (Timothy Bates, on the brief and orally), for plaintiff.

Daniel D. Crean, Concord, by brief and orally, for defendant, Town of Barnstead.

Wescott, Millham & Dyer, Laconia (Susan B. Carbon, on the brief and orally), for intervenor, Margot Georges, Trustee of Silva Real Estate Trust.

BATCHELDER, Justice.

The plaintiff, Mark L. Husnander, appeals the decision of the Superior Court (McHugh, J.) upholding the defendant's, the Town of Barnstead (the town), grant of a variance to the intervenor, Margot Georges, Trustee of the Silva Real Estate Trust. We affirm.

In November 1991, the intervenor applied for a building permit to construct a single-family home on Lower Suncook Lake. When the permit was denied because the proposed construction did not meet setback requirements, she applied to the Barnstead Zoning Board of Adjustment (ZBA) for a variance. Following several hearings, in September 1992, the ZBA granted the variance.

The plaintiff, an abutter who had opposed the variance at the hearings before the ZBA, appealed to the superior court. See RSA 677:4 (1986) (amended 1994). The trial court ruled, "A review of the Barnstead zoning ordinance and, most importantly, a view of the property in question, make it clear to the Court that the ZBA's granting of the variance[ ] requested was the only reasonable action that could have been taken under the circumstances." This appeal followed.

"Under the applicable standard of review, we will uphold the decision of the superior court unless that decision is not supported by the evidence or is legally erroneous." Cohen v. Town of Henniker, 134 N.H. 425, 426, 593 A.2d 1145, 1146 (1991). The question before us is not whether we would have found as the trial court did, but whether there was evidence reasonably to support the trial court's findings. Rowe v. Town of North Hampton, 131 N.H. 424, 428, 553 A.2d 1331, 1334 (1989).

"The variance is the 'safety valve' of zoning administration." 3 E. Ziegler, Rathkopf's The Law of Zoning and Planning, § 38.01 (4th ed. 1994) (footnote omitted); see Grey Rocks Land Trust v. Town of Hebron, 136 N.H. 239, 246, 614 A.2d 1048, 1052 (1992) (Horton, J., dissenting). "In other words, a variance is in the nature of a waiver of the strict letter of the zoning ordinance without sacrifice to its spirit and purpose." New London v. Leskiewicz, 110 N.H. 462, 466, 272 A.2d 856, 859 (1970).

Under RSA 674:33, I(b) (1986), a ZBA is authorized to issue a variance from the terms of the zoning ordinance, provided the variance would not "be contrary to the public interest, if, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done." We have added the requirement that the variance must not result in diminution of surrounding property values. Gelinas v. Portsmouth, 97 N.H. 248, 250, 85 A.2d 896, 898 (1952). "The party seeking a variance ... bears the burden of establishing each of the requirements for a variance." Grey Rocks Land Trust, 136 N.H. at 243, 614 A.2d at 1050.

The plaintiff first argues that no unnecessary hardship exists because the intervenor could construct a dwelling on the lot that would comply with the setback requirements. Although the intervenor concedes that the allowable building envelope contains adequate square footage to construct a dwelling of the same size, she contends that "the odd-shaped result from such construction would make the living space dysfunctional."

Hardship warranting the grant of a variance exists where "the deprivation resulting from application of the ordinance [is] so great as to effectively prevent the owner from making any reasonable use of the land." Governor's Island Club v. Town of Gilford, 124 N.H. 126, 130, 467 A.2d 246, 248 (1983). "[I]t is not uniqueness of the plight of the owner, but uniqueness of the land causing the plight that is the criterion for unnecessary hardship." Carbonneau v. Town of Exeter, 119 N.H. 259, 263, 401 A.2d 675, 677 (1979) (quotation omitted).

Although we can envision instances where a landowner might request a variance merely to construct a dwelling that he or she would prefer to one permitted by the zoning ordinance, the trial court could reasonably have found that this is not such a case. Cf. Grey Rocks Land Trust, 136 N.H. at 243, 614 A.2d at 1050 (reversing variance award where landowner was making reasonable use of the land at time of variance application); Crossley v. Town of Pelham, 133 N.H. 215, 217, 578 A.2d 319, 320 (1990) (reversing variance award to build two-car garage where no unnecessary hardship existed). We note also that the trial court had a view of the property, and the findings of the trial court are within its sound discretion, particularly when a view has been taken. See Voedisch v. Town of Wolfeboro, 136 N.H. 91, 93...