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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Merrimack No. 2005-471 ROBERT L. GARRISON & a. v. TOWN OF HENNIKER Argued: March 9, 2006 Opinion Issued: August 2, 2006 Fernald, Taft, Falby & Little, P.A., of Peterborough (Silas Little on the brief and orally), for the plaintiffs. Soule, Leslie, Kidder, Sayward, of Salem (Diane M. Gorrow on the joint brief), for the defendant. Shaheen & Gordon, P.A., of Concord (Arpiar G. Saunders, Jr. and Karyn P. Forbes on the joint brief, and Mr. Saunders orally), for the intervenor, Green Mountain Explosives, Inc. DUGGAN, J. The intervenor, Green Mountain Explosives, Inc. (GME), appeals an order of the Superior Court (McGuire, J.) reversing the decision of the Henniker Zoning Board of Adjustment (ZBA) granting GME two conditional variances. We affirm.

The following facts were found by the superior court or are evident from the record. GME manufactures explosives for use in mining, quarrying and construction. GME proposed to lease a 1,617-acre parcel owned by the Vincent Barletta Trust for purposes of storing and blending explosives. The parcel was comprised of eighteen separate lots. According to GME's proposal, an explosives storage and blending facility would be centrally located on twenty acres. The remaining 1,597 acres would surround the facility, acting as a buffer zone, as required by Bureau of Alcohol, Tobacco and Firearms (ATF) regulations. The parcel is located in a district zoned rural residential. On October 7, 2004, GME, acting on behalf of the Vincent Barletta Trust, filed an application with the ZBA for two variances. First, it sought a variance to allow the proposed commercial use where only a residential use is permitted. Second, it sought a variance to allow the storage and blending of explosive material where injurious or obnoxious uses are prohibited. The ZBA conducted a hearing at which GME made a video presentation describing the nature of its business and providing information on safety issues related to its operations. Several employees, GME's attorney, and Steven Keach, a professional engineer retained by GME, spoke in favor of granting the variances. Following GME's presentation, members of the public who attended the hearing questioned GME's representatives as to the proposed use of the property. Board deliberations followed the public question period, during which board members and Laura Scott, a town-planning expert retained by the ZBA, discussed GME's application. At the close of the hearing, the ZBA voted three to two to grant the variances subject to two conditions. First, GME had to merge the eighteen lots into a single 1,617-acre parcel, subject to approval by the ZBA. Second, the variances would terminate if GME discontinued the proposed use. Plaintiffs Robert L. Garrison and Cheryl Morse, landowners whose properties abut the proposed site, requested a rehearing before the ZBA. The ZBA denied the requests and the plaintiffs appealed to the superior court pursuant to RSA 677:4 (Supp. 2005). The superior court reversed the ZBA decision, ruling that it was unreasonable because the evidence before the ZBA failed to demonstrate unnecessary hardship. Specifically, the superior court found that: The problem with GME's application and the record in this case is that, while they support a conclusion that the zoning restrictions interfere with GME's proposed use of the property, they do not

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support a finding that the restrictions interfere with the reasonable use of the property. That is, there is no evidence in the record that the property at issue is different from other property zoned rural residential. While its size may make it uniquely appropriate for GME's business, that does not make it unique for zoning purposes. The superior court also noted that "[a]lthough the evidence in the certified record and GME's application show that the property is ideal for GME's facility, `the burden must arise from the property and not from the individual plight of the landowner,'" quoting Harrington v. Town of Warner, 152 N.H. 74, 81 (2005). On appeal, GME raises six issues. It argues that: (1) the superior court erroneously applied the reasonable use requirement for unnecessary hardship that we abrogated in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001); (2) the superior court erroneously required expert testimony to establish unnecessary hardship; (3) there was sufficient evidence to support the ZBA's decision; (4) the superior court erred by not accepting the ZBA's findings as prima facie lawful and reasonable, and instead acted as a super zoning board by substituting its own judgment for that of the ZBA; (5) the superior court erred by failing to distinguish between evidence submitted by the applicant to prove uniqueness and evidence submitted to prove that federal and State safety regulations insured that granting the variance would not be contrary to the public interest; and (6) the superior court erred by finding that GME's proposed use was "strikingly inconsistent" with the present zoning. We address each argument in turn. The superior court's review in zoning cases is limited. See Fox v. Town of Greenland, 151 N.H. 600, 603 (2004). Factual findings of the ZBA are deemed prima facie lawful and reasonable and will not be set aside by the superior court absent errors of law, unless the court is persuaded by a balance of probabilities on the evidence before it that the ZBA decision is unreasonable. Harrington, 152 N.H. at 77; RSA 677:6 (1996). The party seeking to set aside the ZBA decision bears the burden of proof in the superior court. Harrington, 152 N.H. at 77. In determining whether the superior court erred by vacating the ZBA's decision, we note that we do not act as a super zoning board. See id. at 82. Our inquiry is not whether we would find as the superior court found, but whether the evidence before the superior court reasonably supports its findings. Id.

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I.

"Unnecessary hardship" standard

GME first argues that the superior court erroneously applied the preSimplex standard for unnecessary hardship by requiring that GME demonstrate that the ordinance prevented it from making any reasonable use of the land. We disagree. An applicant seeking a variance must demonstrate that: (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) granting the variance will not diminish the value of surrounding properties. Harrington, 152 N.H. at 77; see RSA 674:33, I(b) (Supp. 2005). Prior to our decision in Simplex, an applicant seeking to establish the second prong of the variance test, "unnecessary hardship," had to show that the zoning ordinance unduly restricted his use of the land. See Governor's Island Club v. Town of Gilford, 124 N.H. 126, 130 (1983), abrogated by Simplex, 145 N.H. at 731. For unnecessary hardship to exist under the preSimplex standard for reasonable use, "the deprivation resulting from application of the ordinance must [have been] so great as to effectively prevent the owner from making reasonable use of the land." Rancourt v. City of Manchester, 149 N.H. 51, 53 (2003). In Simplex, we held that "our definition of unnecessary hardship ha[d] become too restrictive in light of the constitutional protections by which it must be tempered" and adopted an approach "more considerate of the constitutional right to enjoy property." Simplex, 145 N.H. at 731. We stated that "applicants for a variance may establish unnecessary hardship by proof that: (1) a zoning restriction as applied to their property interferes with their reasonable use of the property, considering the unique setting of the property in its environment; (2) no fair and substantial relationship exists between the general purposes of the zoning ordinance and the specific restriction on the property; and (3) the variance would not injure the public or private rights of others." Id. at 731-32 (emphasis added). In satisfying the first prong of the Simplex test, "applicants no longer must show that the zoning ordinance deprives them of any reasonable use of the land. Rather, they must show that the use for which they seek a variance is `reasonable,' considering the property's unique setting in its environment." Rancourt, 149 N.H. at 53-54 (citation omitted). GME argues that "[t]he Superior Court, during most of the oral arguments applied the pre-Simplex standard by repeatedly asking whether GME currently had reasonable use of the property." However, the clear language of the superior court's order acknowledges the Simplex standard by

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stating that "[a]pplicants do not have to show that `the zoning ordinance deprives them of any reasonable use of the land. . . . Rather, they must show that the use for which they seek a variance is reasonable considering the property's unique setting in its environment.'" (Quoting Rancourt, 149 N.H. at 53.) GME also argues that the superior court's order "failed to appreciate and correctly apply the Simplex hardship criteria to the facts of record." "Simplex requires a determination of whether the [unnecessary] hardship is a result of the unique setting of the property." Harrington, 152 N.H. at 81. Here, the superior court, after reviewing the record before the ZBA, concluded that GME had failed to prove that the property was "unique for zoning purposes." Specifically, it stated that "there is no evidence in the record that the property at issue is different from other property zoned rural residential." Based upon the language of the order, we are simply not persuaded that the superior court failed to apply the correct standard for unnecessary hardship. II. Expert testimony

GME next argues the superior court erroneously required that it present expert testimony to prove that enforcement of the ordinance in this case would result in unnecessary hardship. We disagree with GME's reading of the superior court order. In its order the superior court stated: Comments [that the development of the parcel is difficult or unlikely] are not enough to demonstrate that a special condition exists on this land so as to warrant the issuance of the variances given. [Harrington, 152 N.H. at 81.] ("[M]ere conclusory and lay opinion concerning the lack of . . . reasonable return is not sufficient [to establish unnecessary hardship]; there must be actual proof . . . .") (quoting Matthew v. Smith, 707 S.W.2d 411, [417] (Mo. 1986)[(en banc)]). In Harrington, we discussed what evidence is required to prove unnecessary hardship and cited Matthew for the proposition that an applicant seeking to demonstrate lack of reasonable return must provide "actual proof." Id. We stated: [Unnecessary hardship] requires a determination of whether the zoning restriction as applied interferes with a landowner's reasonable use of the property. This factor includes consideration of the landowner's ability to receive a reasonable return on his or her investment. [Matthew, 707 S.W.2d at 416] . . . . "[M]ere conclusory and lay opinion concerning the lack of reasonable return is not sufficient; there must be actual proof, often in the 5

form of dollars and cents evidence." Matthew, 707 S.W.2d at 417. Id. at 80-81 (citation and ellipses omitted). Harrington does not require expert testimony concerning either lack of reasonable return on the applicant's investment or interference with reasonable use. Applicants may show both through lay or expert testimony. See id. Indeed, in Harrington we upheld the superior court's ruling that the evidence before the zoning board

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