Vigeant v. Town of Hudson, No. 2004-126 (NH 2/23/2005)
| Decision Date | 23 February 2005 |
| Docket Number | No. 2004-126,2004-126 |
| Parties | LEONARD VIGEANT v. TOWN OF HUDSON. |
| Court | New Hampshire Supreme Court |
Prunier, Leonard & Prolman, P.A., of Nashua (Andrew A. Prolman on the memorandum and orally), for the plaintiff.
Bossie, Kelly, Hodes, Buckley & Wilson, P.A., of Manchester (David E. LeFevre on the brief and orally), for the defendant.
The defendant, Town of Hudson (Town), appeals from an order of the Superior Court (Groff, J.) vacating a decision of the Hudson Zoning Board of Adjustment (ZBA). The ZBA denied a variance to the plaintiff, Leonard Vigeant, from the road setback requirements and denied a special exception for a temporary encroachment into a wetland buffer zone. The Town argues that the trial court erred in: (1) neglecting to independently address each requirement for a variance that the ZBA found the plaintiff failed to satisfy; (2) failing to consider whether the "intensity" of the proposed project was reasonable; (3) concluding that the ZBA improperly denied an area variance for a five-unit multifamily dwelling when the ZBA granted a use variance for a two-family dwelling; and (4) considering that neighboring structures were less than fifty feet from Windham Road. We affirm.
The following facts are supported by the record. In October 2002, the plaintiff filed an application with the ZBA for an area variance for a five-unit multifamily dwelling to be constructed at 69 Windham Road in Hudson, with the individual units connected either by a garage or a screened porch. The property is zoned as a Business District. Multifamily dwellings, defined in the Town's zoning ordinance as three or more attached dwelling units, are a permitted use in a Business District.
The parcel of land is a long, narrow, mostly rectangular lot approximately 770 feet long by 129 feet wide at its widest end, constituting about 1.6 acres. The land is bounded along its southerly boundary by Route 111 and along its northerly and easterly boundaries by Windham Road. The zoning ordinance requires a fifty-foot setback from Windham Road and a fifteen-foot setback from Route 111. However, an area of wetlands is present along the southerly boundary, which was created by drainage from Route 111 and failure to maintain the drainage ditch. Because the zoning ordinance requires a fifty-foot setback from wetlands, the setback from Route 111 is actually fifty feet instead of fifteen feet.
The plaintiff applied for a variance from the fifty-foot setback to allow construction to extend to within thirty feet of Windham Road and for a special exception to permit a temporary encroachment of ten feet into the wetlands buffer zone during construction. On February 13, 2003, a public hearing was held on the plaintiff's application. The ZBA voted unanimously to deny the request for a variance on grounds that the application was not consistent with the spirit of the ordinance, that there was no evidence of hardship, that there would be a diminution of surrounding property values and that it would be contrary to the public interest. The ZBA also voted unanimously to deny the request for a wetlands special exception.
The plaintiff filed a motion for rehearing, attaching a letter from a real estate appraiser expressing the opinion that the development would have no impact on the value of surrounding properties. The ZBA denied a rehearing and the plaintiff appealed to the superior court.
Following a hearing and a view, the trial court found that the ZBA's denial of the plaintiff's request for a variance from the setback requirement "is unlawful and unreasonable and must be set aside." The court applied the test of unnecessary hardship adopted in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001), recognizing that applicants (Citation omitted.)
The trial court noted that the proposed multifamily development is a permitted use for the property under existing zoning and that "[d]espite its impact on the residential neighborhood, the nature of its permitted use cannot provide any basis to deny the variance request." In addition, the court found that the lot is unique, not just in its setting, but in its very character and description. The court stated: The court also found that there was no evidence that the surrounding property values would be adversely affected by the variance.
The court concluded:
[T]he street setback requirements and the buffer zone setback requirements interfere with the reasonable use of the petitioner's property considering the unique setting of the property in its environment. No fair and substantial relationship exists between the general purposes of the zoning ordinance and these setback restrictions on this property. There is no evidence that either the variance or the special exception would injure the public rights of others.
The Court finds that the Board's findings that the application is not consistent with the spirit of the Ordinance, that there is no evidence of hardship, that the values of the surrounding properties have been diminished, and that the granting of this variance is contrary to the public interest are not supported by any evidence.
The trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA 677:6 (1996). The party seeking to set aside the ZBA's decision bears the burden of proof on appeal to the trial court. Id. "However, the trial court may set aside a ZBA decision if it finds by the balance of probabilities, based on the evidence before the court, that the ZBA's decision was unreasonable." Simplex Technologies, 145 N.H. at 729. We will uphold the trial court's decision on appeal unless it is not supported by the evidence or is legally erroneous. Bacon v. Town of Enfield, 150 N.H. 468, 471 (2004). Our inquiry is not whether we would find as the trial court found, but rather whether the evidence before the court reasonably supports its findings. Id. "[T]he findings of the trial court are within its sound discretion, particularly when a view has been taken." Husnander v. Town of Barnstead, 139 N.H. 476, 479 (1995).
In order to receive a variance, an applicant must meet five criteria: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that a literal enforcement of the provisions of the ordinance will result in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; (4) substantial justice is done; and (5) the variance will not diminish the value of surrounding properties. RSA 674:33, I(b) (Supp. 2004); Ryan v. City of Manchester Zoning Board, 123 N.H. 170, 173 (1983). In decisions over the past several years, we have attempted to clarify the unnecessary hardship standard.
In Simplex, we recognized that in seeking a variance, the hardship requirement had been the most difficult to meet. Accordingly, we adopted a less restrictive test of unnecessary hardship to better safeguard the constitutional rights of all landowners and to more properly balance those rights against the necessity of zoning ordinances. See Simplex, 145 N.H. at 731-32. Rather than require a showing that an ordinance unduly restricts the use of their land, applicants for a variance could establish...
To continue reading
Request your trial