Pappas v. City of Manchester Zoning Bd. of Adjustment

• Decision Date: 25 July 1977
• Docket Number: No. 7723,7723
• Citation: 117 N.H. 622,376 A.2d 885
• Parties: William PAPPAS v. CITY OF MANCHESTER ZONING BOARD OF ADJUSTMENT.
• Court: New Hampshire Supreme Court

Page 885

376 A.2d 885

117 N.H. 622

William PAPPAS v. CITY OF MANCHESTER ZONING BOARD OF ADJUSTMENT.

No. 7723.

Supreme Court of New Hampshire.

July 25, 1977.

Robert Singer, Manchester, by brief and orally, for plaintiff.

James A. Manning, Asst. City Sol., Manchester, by brief and orally, for defendant.

Robert F. Bossie and Laurence E. Kelly, Manchester, for intervenors.

BOIS, Justice.

Pursuant to RSA 31:77 the plaintiff appealed to the superior court from a denial of a rehearing by the Manchester Zoning Board of Adjustment (the "board") of its order granting a variance to certain neighboring property owners. The variance permitted a six-family structure in a residential zone to be altered for use as professional offices, and incidental thereto permitted the conversion of open space adjacent to the building to an offstreet parking lot for twenty automobiles.

The court found that "(u)pon a review of the pleadings and record in this case, the Court does not find that the Board of Adjustment committed any errors of law, nor is the Court persuaded by the balance of probabilities on the evidence before it that the order and decision . . . is unjust or unreasonable." Plaintiff has taken this appeal, and all questions of law which are matters of record were reserved and transferred by Goode, J.

In March of 1976, there was submitted to the Manchester Building Department an application for a permit to repair and alter the building in question. Because of the zoning classification, the application was denied and an appeal referred to the board of adjustment for the issuance of a variance. A public hearing was held in April of 1976 and as a result thereof a variance granted. At that hearing Mr. Pappas was not represented by counsel but he as well as other interested parties was allowed full opportunity to be heard in opposition to the variance. An application for rehearing by plaintiff was denied, and an appeal to the superior court was perfected on June 2, 1976. At the original public hearing, where no record was made, the plaintiff filed no requests for findings of fact and no explicit findings were made by the board in granting the variance.

Notwithstanding this scant record, the plaintiff elected to present his appeal to the trial court "on the record," with the exception of a stipulation that the property in question bordered three and one-half feet from the plaintiff's building. The plaintiff specified as "grounds" for his appeal (RSA 31:77) the contentions that:

(1) the board had yielded to pressures from the community and made a decision which constituted an abuse of its discretionary power;

(2) the use of the open-space area for a parking lot would constitute a menace to the health of his family and of his tenants' families;

(3) the rental value of the tenements in plaintiff's building would be diminished.

We note at the outset that in a zoning appeal there is a statutory presumption (RSA 31:78) that all findings of the zoning board of adjustment are prima facie lawful and reasonable. Simoneau v. Nashua, 112 N.H. 18, 287 A.2d 620 (1972); Bois v. Manchester, 113 N.H. 339, 306 A.2d 778 (1973); Hanson v. Manning, 115 N.H. 367, 341 A.2d 764 (1975). The court may not substitute its judgment for that of the board; and on appeal from an order permitting a variance, the order may not be set aside or vacated except for errors of law, "unless the court is persuaded by the balance of probabilities . . . that said order or decision is unjust or unreasonable." RSA 31:78.

Although disclosure of specific findings of fact by a board of adjustment may often facilitate judicial review, the absence of findings, at least where there is no request therefor, is not in and of itself error. Gelinas v. Portsmouth, 97 N.H. 248, 250, 85 A.2d 896, 898 (1952); see Broderick v. Hunt, 77 N.H. 139, 142-43, 89 A. 302, 304-05 (1913); Foote v. State Personnel Commission, 116 N.H. 145, 148, 355 A.2d 412, 413 (1976). Further, to the extent the record of the evidence before the board is incomplete or nonexistent, the aggrieved party may avail himself of RSA 31:82, :85, and present evidence to the trial court. Such additional evidence may be taken into consideration even though it was not before the board. Conery v. Nashua, ...