Peter Christian's Inc. v. Town of Hanover

• Decision Date: 07 February 1990
• Docket Number: No. 89-073,89-073
• Citation: 569 A.2d 758,132 N.H. 677
• Parties: PETER CHRISTIAN'S INC. v. TOWN OF HANOVER.
• Court: New Hampshire Supreme Court

Page 758

569 A.2d 758

132 N.H. 677

PETER CHRISTIAN'S INC. v. TOWN OF HANOVER.

No. 89-073.

Supreme Court of New Hampshire.

Feb. 7, 1990.

Clauson, Smith & Whelan, Hanover (K. William Clauson on the brief and orally), for plaintiff.

Law Office of Laurence F. Gardner, Lebanon (Laurence F. Gardner on the brief and orally), for defendant.

BROCK, Chief Justice.

The plaintiff appeals from a Superior Court (Smith, J.) ruling affirming the Hanover Zoning Board of Adjustment's denial of the plaintiff's application for a special exception. The plaintiff claims that the trial court erred as a matter of law: (1) in confirming certain findings of the board of adjustment; (2) in refusing to permit the plaintiff to introduce the testimony of two witnesses; and (3) in relying upon representations of defendant's counsel as evidence. For the reasons that follow, we affirm.

In 1981, the plaintiff (Peter Christian's) proposed to expand its business during the warmer months by accommodating twenty additional seats on an outdoor deck adjacent to its existing restaurant on Main Street in Hanover. The Hanover Zoning Ordinance requires that eating and drinking establishments provide one off-street parking space for every five seats, Section 404.1, and that such off-street parking facilities be provided on the same lot or premises with the building or land they serve, Section 406. Peter Christian's was unable to satisfy the zoning requirement for on-site parking necessitated by the additional seating capacity. However, Section 406, C, provides an exception to the on-site parking requirement and states in pertinent part:

"... the Board of Adjustment may permit as a Special Exception all or part of the required parking space to be located elsewhere than the building it serves, if the said Board finds that such off premise space will satisfy the parking requirement by control or regulation of the landowners. The applicant shall satisfy the Zoning Board that the parking facility is adequate in location and access to satisfy the parking requirements for such building or use."

Utilizing this provision, Peter Christian's requested and received a special exception from the Hanover Zoning Board of Adjustment (the Board), which permitted the satisfaction of the zoning requirement through the leasing of parking spaces located at a nearby garage. This special exception remained in effect until January 1, 1986, when the lease on the off-site spaces was discontinued.

Prior to the termination of the lease, Peter Christian's applied for a variance, seeking to continue the use of its deck and to be excused from the parking requirements. The Board denied this request, expressing the opinion that "Peter Christian's should present a new case for a Special Exception to Section 406.C and include the specific number of employees and disposition of their automobiles."

As suggested by the Board, Peter Christian's then applied for another special exception under Section 406, C, for use of off-site parking. In its proposal to the Board, Peter Christian's provided no designated off-site spaces, but offered to require certain of its employees to park in peripheral lots outside the downtown area while the deck was in operation. Peter Christian's contended that this plan would make available at least four unidentified parking spaces in the vicinity of its restaurant. In effect, Peter Christian's proposed to satisfy the off-site parking requirements necessary to obtain a special exception by utilizing space in public lots which are located away from the congested center of Hanover. The Board unanimously voted to deny the request "to conduct a seasonal business on its outside deck and provide the required seasonal parking off-site at the Town peripheral lots...."

Peter Christian's motion for rehearing of the matter was granted by the Board, and a second hearing was held. Again, the Board unanimously rejected the plan, holding that: "Public peripheral lots are not under the control or regulation of individual businesses. Nor do they meet the requirement that off-premise parking spaces be 'adequate in location and access' for the requirements of the proposed use." The Board also ruled that the zoning ordinance intended "that private off-street parking be established for the use it will serve" and that "[p]ublic parking spaces may only satisfy a private use under the conditions set forth in Section 403.3 of the Zoning Ordinance." Section 403.3 relates to the Town of Hanover's (the Town) acquisition of private parking facilities and provides:

"Required off-street parking facilities which, after development, are later acquired by the Town (with regard to parking facilities being either given to the Town or purchased by the Town) shall be deemed to continue to serve the building for which the parking facilities were originally provided."

Following the Board's denial of a second motion for rehearing, Peter Christian's appealed to the superior court, complaining that the Board's decision was unreasonable, illegal and arbitrary. A hearing on the merits was held on November 21, 1988. In addition to the certified record of the Board's proceedings, the trial judge allowed into evidence the records of previous proceedings before the Board pertaining to the granting of the original request for special exception in 1981 and the denial of the application for variance in 1985.

Peter Christian's requested that two witnesses be permitted to testify at the hearing. Before ruling on the request, the trial judge allowed counsel for Peter Christian's to make an offer of proof as to the proposed testimony of Mr. Cioffi, manager of the Dartmouth Bookstore (the Bookstore), a business also located in the congested downtown area of Hanover, and Mr. Washburn, owner of Peter Christian's. The offer of proof involved the arrangements made between the Bookstore and the Town regarding off-site parking and zoning approvals granted on the basis of those arrangements. Peter Christian's offer of proof evolved into an orderly discussion in which the opposing attorneys presented their respective understandings as to the character, history and relevancy of the Town's arrangements for leasing of spaces in public lots to satisfy off-site parking requirements.

As the hearing concluded, the trial judge denied Peter Christian's request to hear testimony. However, Peter Christian's offer of proof was admitted as evidence based upon Town counsel's "acceptance of what the gentleman from the Dartmouth Bookstore would state as a matter of fact" and only "as it relates to the agreement that Dartmouth Bookstore has with the Town of Hanover." Although the trial judge could have expressed his intent more clearly, it appears from the record that he intended only to admit into evidence the undisputed portion of the offer of proof which factually described the relationship between the Bookstore and the Town. It was not error for the court to admit this limited offer of proof as technical rules of evidence do not apply to the admission of evidence in appeals from a zoning board. RSA 677:10; Levesque v. Hudson, 106 N.H. 470, 475, 214 A.2d 553, 557 (1965) (overruled on other grounds, Winslow v. Holderness Planning Board, 125 N.H. 262, 269, 480 A.2d 114, 117 (1984)).

In an order dated January 4, 1989, the trial court held that the "plaintiff [had] not met his burden of proving the decision of the ZBA was unreasonable or unlawful...." The decision of the Board was affirmed.

On appeal, Peter Christian's contends that certain findings made by the Board and confirmed by the trial court were erroneous as a matter of law. Further, it argues that the trial court abused its discretion in refusing to allow the plaintiff to present evidence beyond the certified record. Finally, it argues that the trial court committed error when it accepted facts represented by counsel for the Town as evidence, even though they were contradictory to the offer of proof on which the court was to base its decision.

We first address Peter Christian's contention that three findings of the Board were improperly confirmed by the trial court: (1) that public parking spaces may not be used to satisfy the off-site parking requirements of the zoning ordinance; (2) that spaces in peripheral lots are not adequate in location and access to service Peter Christian's deck; and (3) that spaces in the peripheral lots are not under the control or regulation of the landowner. In contesting the lawfulness or reasonableness of each of these findings, Peter Christian's argues that the Board has been inconsistent in applying the zoning regulations. In particular, it contends that the Board's findings are contrary to approvals granted to nine other businesses, including the Bookstore. We disagree.

Findings of a zoning board of adjustment, upon all questions of fact properly before it, are deemed to be prima facie lawful and reasonable. RSA 677:6; Biggs v. Town of Sandwich, 124 N.H. 421, 426, 470 A.2d 928, 931 (1984). The trial court confirmed the findings of the Board when it ruled that Peter Christian's had failed to overcome this statutory presumption. On appeal, we will not decide whether we agree with the findings below, but...