Town of Plaistow Bd. of Selectmen v. Town of Plaistow Zoning Bd. of Adjustment

• Decision Date: 09 April 2001
• Docket Number: No. 99–255.,99–255.
• Citation: 146 N.H. 263,769 A.2d 397
• Court: New Hampshire Supreme Court
• Parties: TOWN OF PLAISTOW BOARD OF SELECTMEN v. TOWN OF PLAISTOW ZONING BOARD OF ADJUSTMENT and another.

146 N.H. 263

769 A.2d 397

TOWN OF PLAISTOW BOARD OF SELECTMEN

v.TOWN OF PLAISTOW ZONING BOARD OF ADJUSTMENT and another.

No. 99–255.

Supreme Court of New Hampshire.

April 9, 2001.

Mitchell & Bates, P.A., of Laconia, (Timothy Bates on the brief and orally), for the plaintiff.

Donahue, Tucker & Ciandella, of Exeter, for the defendant, filed no brief.

Engel & Associates, P.A., of Exeter, (David C. Engel on the brief and orally), for the intervenor, Richard Taylor.

DALIANIS, J.

The intervenor, Richard Taylor, appeals an order of the Superior Court (Murphy , J.) reversing the decision of the Town of Plaistow Zoning Board of Adjustment (ZBA) granting a variance to Taylor. We vacate and remand.

The relevant facts follow. In 1997, the Town of Plaistow (town) adopted an amendment to its zoning ordinance prohibiting the establishment of an automobile dealership within 1,000 feet of another such dealership. On February 26, 1998, the ZBA granted a variance to Taylor to establish a used car dealership on property less than 1,000 feet from an existing car dealership. Specifically, the ZBA found that

[t]here would be no decrease in value of nearby property if granted (no abutters present), to have site in use would be a benefit since it has been empty, hardship is that building is not suitable for retail and the location of the lot is the hardship, would be justice to grant since owner says only 25% of his business is used cars, has large number of parking spaces.

Although on March 11, 1998, the Plaistow Planning Board sent a memorandum to the ZBA requesting a rehearing on Taylor's variance request, the parties do not dispute that the planning board lacks the authority to request a rehearing. However, on March 18, 1998, Plaistow's town manager, Robert M. Belmore, sent a memorandum to the ZBA from the plaintiff, the Town of Plaistow Board of Selectmen, requesting a rehearing on Taylor's variance request. Specifically, the memorandum stated, "Please accept this memo as a request for a rehearing on this variance decision based on the concerns outlined in the attached March 11, 1998 Planning Board memo." At a March 23, 1998 meeting, the plaintiff ratified the town manager's action. On March 26, 1998, the ZBA denied the plaintiff's request for a rehearing.

The plaintiff appealed to the trial court, and Taylor intervened. The trial court reversed, ruling that the ZBA erred in granting the variance because denial of the variance would not have resulted in unnecessary hardship.

On appeal, Taylor asserts that the trial court erred in finding that: (1) the town manager was authorized to request a rehearing on behalf of the board; (2) the request for a rehearing met the requirements of RSA 677:3 ; and (3) Taylor's operation of a business on the property was conclusive evidence that a hardship did not exist.

"Because this is a zoning case, the standard for review of this court is not whether we would find as the trial court did, but whether the evidence reasonably supports the finding. We will therefore uphold the trial court's decision on appeal unless it is not supported by the evidence or is erroneous as a matter of law." Hussey v. Town of Barrington, 135 N.H. 227, 231, 604 A.2d 82 (1992) (quotation and citations omitted).

Taylor first asserts that the trial court erred in finding that the town manager had the authority to request a rehearing on behalf of the selectmen pursuant to RSA 677:2 (1996)(amended 2000).

RSA 677:2 provides:

Within 20 days after any order or decision of the zoning board of adjustment ... the selectmen, any party to the action or proceedings, or any person directly affected thereby may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion for rehearing the ground therefor; and the board of adjustment ... may grant such rehearing if in its opinion good reason therefor is stated in the motion.

The trial court found that pursuant to RSA 37:6, IX, the town manager was authorized to request a rehearing because his letter to the ZBA indicates "[a] majority of the Board of Selectmen agreed that an appeal was warranted." RSA 37:6, IX provides that it shall be the duty of the town manager "[t]o perform such other duties, consistent with his office, as may be required of him by vote of the selectmen." Taylor, however, contends that the town manager was not directed by a vote of the selectmen to file the rehearing request and that the selectmen's March 23, 1998 ratification came too late as it occurred more than twenty days after the ZBA issued its decision. See RSA 677:2. Further, he asserts that because the town manager's action was not specifically authorized by RSA 37:6, he did not have the authority to request a rehearing unless directed to do so by vote of the selectmen.

While we recognize that there was no formal vote taken by the selectmen prior to the expiration of the twenty-day period, we disagree that the absence of a formal vote demonstrates that the town manager lacked the authority to request a rehearing on behalf of the selectmen. Pursuant to RSA 37:3 (2000), the town manager "shall in all matters be subject to the direction and supervision ... of the selectmen." Here, the town manager was acting at the direction of the selectmen. The rehearing request, drafted on board of selectmen letterhead, specifically stated, "A majority of the Board of Selectmen agreed that an appeal was...