Sweeney v. City of Dover, 5609

• Decision Date: 31 October 1967
• Docket Number: No. 5609,5609
• Citation: 234 A.2d 521,108 N.H. 307
• Parties: Michael E. SWEENEY v. CITY OF DOVER.
• Court: New Hampshire Supreme Court

Page 521

234 A.2d 521

108 N.H. 307

Michael E. SWEENEY v. CITY OF DOVER.

No. 5609.

Supreme Court of New Hampshire.

Argued May 2, 1967.

Decided Oct. 31, 1967.

William E. Galanes, Dover, for plaintiff.

Anthony A. McManus, Dover, for defendant.

DUNCAN, Justice.

The property in question is a 27.5-acre tract in Dover, zoned 'R-1' or 'Low Density Residence' restricted to single family dwellings, purchased by the plaintiff on April 19, 1965 for $6,700. In 1952 his predecessor in title had a plot plan prepared and recorded for 75 single residence house lots on this land. No lots had been sold nor any construction undertaken and when purchased by the plaintiff the tract was open land with no structures of any kind. Plaintiff knew about the early plan and he intended to develop the land for single dwelling units when he bought it; but he made no investigation of the feasibility of developing the tract before he purchased it.

Plaintiff thereafter was advised that the high unit costs in developing the tract, coupled with high water level and ledge in certain areas rendered it unsuitable for single dwellings to be constructed thereon. He then turned his attention to other possible uses and decided that the best and most profitable development of this land would be in the field of two-story multiple dwellings with 'executive apartments.' They would be one, two, and three-bedroom apartments renting from $125 to $155 per month.

As a result plaintiff applied to the zoning board of adjustment for a variance to construct, in the first phase, six such two-story multiple dwellings each containing nine apartments with nine garages to provide undercover parking. The proposed development plans provided for a second phase of six more multiple dwellings and a probable third phase of an equal amount making a total of 162 apartments in 18 two-story multiple dwelling units.

After a hearing on his petition on June 16, 1965, the board of adjustment unanimously (5 to 0) granted a variance. However on a rehearing held July 20, 1965, with three new members on the board, the prior decision was reversed 3 to 2 and the variance denied. On plaintiff's appeal to the Superior Court the board's denial of the variance was set aside as being unjust and unreasonable. RSA 31:78, 83.

In finding and ruling that the decision of the board of adjustment was unjust and unreasonable, the master made preliminary findings and rulings indicating that he considered that the statutory requirements for the granting of a variance were satisfied by the evidence before him. See RSA 31:72 III; Gelinas v. City of Portsmouth, 97 N.H. 248, 250, 85 A.2d 896. However his ruling that the decision of the board was unjust and unreasonable was a ruling that upon the evidence as a whole, and 'by the balance of prohibilities' the decision of the board could not reasonably be made upon the evidence. RSA 31:78. In arriving at this conclusion the master was entitled to take into consideration any additional evidence introduced before him, even though it was not before the board. RSA 31:82, 85. Conery v. City of Nashua, 103 N.H. 16, 21, 164 A.2d 247; HIK Corp. v. City of Manchester, 103 N.H. 378, 381, 172 A.2d 368.

The purpose of the statutory provisions for the receipt of such additional evidence is not to afford the appealing party a trial de novo, which is no longer available (Gelinas v. City of Portsmouth, supra), but rather 'to assist the court in evaluating the action of the (board) where the record was incomplete * * * even though * * * the evidence itself was not...