Richardson v. Town of Salisbury

• Decision Date: 26 January 1983
• Docket Number: No. 82-235,82-235
• Citation: 123 N.H. 93,455 A.2d 1059
• Parties: Philip RICHARDSON, et al. v. TOWN OF SALISBURY.
• Court: New Hampshire Supreme Court

Page 1059

455 A.2d 1059

123 N.H. 93

Philip RICHARDSON, et al. v. TOWN OF SALISBURY.

No. 82-235.

Supreme Court of New Hampshire.

Jan. 26, 1983.

Perkins, Upshall & Robinson, Concord (Kenneth L. Robinson, Jr., Concord, on brief and orally), for plaintiffs.

Wescott, Millham & Dyer, Laconia (Roger G. Burlingame, Laconia, on brief and orally), for defendant.

BOIS, Justice.

The defendant town appeals from a Superior Court (Cann, J.) order approving a Master's (Walter L. Murphy, Esq.) recommendation to overturn the town's denial of the plaintiffs' petition for a zoning variance. We reverse.

At the beginning of 1979, the plaintiffs, Philip and Brenda Richardson, purchased a parcel of land in the Town of Salisbury, in an area zoned for residential and agricultural use. They intended to use the land for storing and repairing old cars, and they immediately moved several vehicles onto the property. Mr. Richardson testified that they never inquired about the applicable zoning regulations when they bought the land.

In June 1979, the plaintiffs received a letter from the Salisbury Board of Selectmen, informing them that the town was responsible for enforcing certain State regulations governing the storage of junk material and that they would have to comply with those regulations. In response to the letter, Mr. Richardson contacted the selectmen, who referred him to the chairman of the zoning board of adjustment. The chairman of the zoning board told Mr. Richardson that the plaintiffs would have to request a hearing on the proposed use of the property, notify the abutters, and pay a filing fee. He gave him an application for a zoning variance and a copy of the town zoning ordinance.

Shortly thereafter, Mr. Richardson filed the application for a variance, and a hearing was held before the zoning board of adjustment in August 1979. The board members viewed the land in question, and three letters in opposition to the variance were read. Later that month, the zoning board notified the plaintiffs in writing that their application had been denied. In the section entitled "reasons," the notice cited provisions from the zoning ordinance regarding permitted and non-conforming uses, and further stated that access to the property was insufficient.

The plaintiffs subsequently began construction of a second driveway on their land and filed an application for a rehearing on the zoning board's decision. The board granted a rehearing, but again denied the plaintiffs' petition. In support of its decision, the board specifically found: that the plaintiffs had failed to demonstrate unnecessary hardship because the land could be used in the same manner as any other parcel in the district; that the granting of the variance would violate the spirit of the zoning ordinance and adversely affect abutters' properties; and that the plaintiffs could have avoided any resulting injustice if they had waited for the board's decision before starting their junkyard business.

The plaintiffs appealed the zoning board's decision to superior court. Following a view of the premises and a hearing, the master ruled that the zoning board's findings were erroneous and recommended that the variance be granted. The superior court approved this recommendation and entered a decree accordingly. The town then appealed to this court, claiming that the master erred in ruling that the denial of the variance was unreasonable.

We start by noting the somewhat limited standard of review to be applied by the trial court in these matters. The factual findings of a zoning board of adjustment are deemed prima facie lawful and reasonable on appeal. RSA 31:78 (Supp.1981); see Burke v. Town of Jaffrey, 122 N.H. 510, 513, 446 A.2d 1169, 1171 (1982). The board's denial of a variance must stand unless the trial court finds by the balance of probabilities, on the evidence before it, that the decision was unlawful or unreasonable. RSA 31:78 (Supp.1981); see Colby v. Town of Rye, 122 N.H. 991, ---, 453 A.2d 1270, 1271 (1982); U-Haul Co. of N.H. & Vt. v. City of Concord, 122 N.H. 910, ---, 451 A.2d 1315, 1317 (1982).

In order to obtain a variance, an applicant must satisfy five conditions, including the requirement that the "denial of the permit would result in unnecessary hardship to the owner seeking it." Id., 451 A.2d at 1317 (ultimately quoting Gelinas v. Portsmouth, 97 N.H. 248, 250, 85 A.2d 896, 898 (1952)). We have...