Robinson v. Town of Hudson

• Court: New Hampshire Supreme Court
• Writing for the Court: BROCK, C.J.
• Citation: Robinson v. Town of Hudson, 821 A.2d 959, 149 N.H. 255 (N.H. 2003)
• Decision Date: 14 March 2003
• Docket Number: No. 2001–671.,2001–671.
• Parties: Michelle J. ROBINSON v. TOWN OF HUDSON.

149 N.H. 255

821 A.2d 959

Michelle J. ROBINSON

v.TOWN OF HUDSON.

No. 2001–671.

Supreme Court of New Hampshire.

Argued Nov. 14, 2002.

Issued March 14, 2003.

Rehearing Denied April 17, 2003.

Denis O. Robinson, of Bedford, by brief and orally, for the petitioner.

Bossie, Kelly, Hodes, Buckley & Wilson, P.A., of Manchester (David E. LeFevre, on the brief and orally), for the respondent.

BROCK, C.J.

The petitioner, Michelle J. Robinson, appeals the decision of the Superior Court (Hampsey , J.) dismissing her appeal of the Town of Hudson Zoning Board of Adjustment's (ZBA) denial of her request for a variance from the 150–foot frontage requirement applicable to her property. We reverse and remand.

The petitioner's property is located on Mark Street in Hudson, and it is part of a six-lot subdivision that was approved by the town in 1970. The subdivision plan provided that Mark Street would be extended from its existing cul-de-sac via the Mark Street Extension to Wason Road. The Mark Street Extension was roughed out and graded but never paved. As a result, only two of the six lots have road frontage. The petitioner's lot has approximately fifty feet of frontage on Wason Road.

In July 2000, the petitioner submitted a request for zoning determinations to the building inspector for the town. The petitioner was told that a variance was necessary because the lot lacked the required 150 feet of road frontage. The following month, the petitioner submitted an application for a variance from the frontage requirement. After a public hearing, the ZBA denied the application. The petitioner's motion for a rehearing was denied. The petitioner appealed to the superior court. After an evidentiary hearing, the superior court dismissed the appeal on the grounds that the petitioner "failed to challenge the ZBA's decision on all five conditions in her application for rehearing...." This appeal followed.

On appeal, the petitioner argues, among other things, that the trial court erred by: (1) finding that the ZBA had determined that the petitioner failed to meet all five conditions necessary for the granting of a variance; (2) ruling that the petitioner must raise all five conditions in order to preserve her right of appeal; and (3) excluding the testimony of the respondent, Town of Hudson's, engineer. The petitioner further argues that the application of the town's 150–foot frontage requirement to her land amounts to an unconstitutional taking.

In order to address the issues the petitioner has raised on appeal, we must first decide whether the trial court properly dismissed the appeal. See Hussey v. Town of Barrington, 135 N.H. 227, 230, 604 A.2d 82 (1992).

When the trial judge is sitting as the trier of fact, he or she appropriately may make findings of fact ... and may use such facts to determine whether the [petitioner] has established the case by a preponderance of the evidence. On appeal, we will not overrule these findings of fact, unless they are clearly erroneous, nor will we reverse the dismissal based thereon unless it is inconsistent with the findings or otherwise contrary to law.

Id . at 230–31, 604 A.2d 82 (quotations and brackets omitted).

Initially, the petitioner argues that it was error for the trial court to find she had "failed to persuade a majority of the ZBA that she had satisfied any of the five conditions for granting a variance." We agree. In order to obtain a variance, a petitioner bears the burden of showing that:

"(1) the variance will not be contrary to the public interest; (2) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; and (4) substantial justice is done." Simplex Technologies v. Town of Newington, 145 N.H. 727, 729, 766 A.2d 713 (2001) ; see also RSA 674:33, I(b) (1996); Husnander v. Town of Barnstead, 139 N.H. 476, 478, 660 A.2d 477 (1995). "In addition, the board may not grant a variance if it diminishes the value of surrounding properties." Simplex, 145 N.H. at 729–30, 766 A.2d 713.

In this case, the ZBA specifically found that the petitioner failed to meet two of the five conditions for a variance. In its notice of disapproval, the ZBA stated that the petitioner's "intended use did not satisfy the statutory requirements for an Area Variance." (Emphasis omitted.) It went on to explain its disapproval by expressing doubt that it would "be of benefit to the public interest to satisfy this one lot when there were other lots that were going to be impacted more by allowing the placement of a house that would cut off access to the others, contending that substantial justice would not be done by blocking off the access...." (Emphasis added.) The respondent argues that this language combined with worksheets filled out by members of the ZBA and minutes from the ZBA meeting make it clear that the ZBA found that the petitioner failed to meet any of the five conditions for granting a variance. We disagree.

Assuming without deciding that the worksheets were properly before the court, the evidence presented is insufficient to demonstrate that the ZBA concluded that the petitioner did not meet any of the variance conditions. The worksheet of one member is missing from the record and the remaining worksheets contain votes that are neither unanimous nor clear. The worksheets and minutes are inconclusive as to the findings of the ZBA. As such, the record does not support the trial court's finding that the petitioner failed to meet any of the five conditions for granting a variance.

The petitioner next argues that the trial court erred when it dismissed her case on the ground that she had failed to preserve her right of appeal by failing to raise all five conditions for a variance in her motion to reconsider filed with the ZBA. We agree.

RSA 677:3 (1996) provides, in pertinent part:

A motion for rehearing ... shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable. No appeal from any order or decision of the zoning board of adjustment ... shall be taken unless the appellant shall have made application for rehearing as provided in RSA 677:2 ; and, when such application shall have been made, no ground not set forth in the application shall be urged, relied on, or given any consideration by a

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