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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 ___________________________ Hillsborough-southern judicial district No. 2005-687 MICHELLE J. ROBINSON v. TOWN OF HUDSON Argued: September 13, 2006 Opinion Issued: December 20, 2006 Denis O. Robinson, of Bedford, on the brief and orally, for the petitioner. Hodes, Buckley, McGrath & LeFevre, P.A., of Manchester (David E. LeFevre on the brief and orally), for the respondent. DUGGAN, J. The petitioner, Michelle J. Robinson, appeals the order of the Superior Court (Hampsey, J.) affirming the decision of the Town of Hudson Zoning Board of Adjustment (ZBA) granting with conditions her request for a variance from the 150-foot frontage requirement applicable to her property. We affirm. This is the second time this case has reached us on appeal, see Robinson v. Town of Hudson, 149 N.H. 255 (2003), and we summarize the facts detailed in our previous opinion. The petitioner and her brother are owners of an undeveloped lot (the property) located on Mark Street in Hudson. Id. at 256. The property is part of a six-lot subdivision that was approved by the respondent, the Town of Hudson (Town), in 1970. Id. at 256. The subdivision plan provided that Mark Street would be extended from its existing cul-de-sac

via the Mark Street Extension to Wason Road. Id. The Mark Street Extension was roughed out and graded but never paved. Id. Consequently, the parties often refer to Mark Street Extension as a "paper street." Only two of the six lots have frontage on actual, paved streets. Id. The petitioner's lot has approximately fifty feet of frontage on Wason Road. Id. In July 2000, the petitioner submitted a request for "zoning determinations" to the Town's building inspector. Id. Her plan was to construct a single-family residence on the property, with a driveway that would partially utilize the Mark Street Extension to gain access to Wason Road. She was told that a variance would be necessary because the lot lacked the required 150 feet of frontage on Wason Road, the only existing road abutting the property. Id. The petitioner thereafter submitted an application for a variance from the frontage requirement. Id. The ZBA denied the application. Id. The petitioner appealed to the superior court, which dismissed the appeal. Id. We reversed the superior court's dismissal and remanded for further proceedings. Id. at 259. On remand, the superior court vacated the ZBA's decision and remanded the case to the ZBA for a de novo hearing. The ZBA held a public hearing on December 9, 2004, to consider the petitioner's variance application. After much discussion, the ZBA voted to grant the petitioner's variance with the following conditions: 1. If and when Mark Street [Extension] is built, the property owner of record shall pay a pro rata share of the cost of constructing Mark Street [Extension]. 2. Prior to the issuance of a building permit, the property owner of record shall furnish a septic approval permit or similar permit or approval from [the New Hampshire Department of Environmental Services]. 3. The house shall be set back 30 feet from Mark Street, as shown on the plan of land . . . . 4. The Town of Hudson neither assumes responsibility for maintenance of Mark Street, nor liability for any damages resulting from the use of Mark Street. Prior to the issuance of a building permit, the property owner of record shall produce evidence that notice of the limits of municipal responsibility and liability has been recorded in the Hillsborough County Registry of Deeds. The petitioner filed a motion for rehearing in which she challenged the lawfulness of the first and the fourth conditions. The ZBA denied the motion for rehearing.

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The petitioner appealed to the superior court, arguing that: (1) the first condition, referred to as the "cost condition," is arbitrary and unreasonable because the terms "pro rata share," "cost" and "built" are all undefined terms that make it impossible to ascertain the future liability of the owner of the property; (2) the cost condition is unreasonable because the petitioner is the only lot owner required to contribute to the cost of developing Mark Street Extension; (3) the ZBA exceeded its authority in imposing the cost condition because it applies to the owner of the land and does not relate to the use of the land; and (4) the fourth condition, referred to as the "liability condition," is unreasonable. The superior court affirmed the ZBA's decision. The court found that the petitioner's first argument was not preserved for appeal because she did not address it in her motion for rehearing before the ZBA. With respect to the petitioner's other arguments pertaining to the cost condition, the court concluded that the condition was "neither unreasonable nor arbitrary." The court stated: A review of the ZBA minutes makes it clear that the ZBA was concerned about potential safety issues should Mark Street Extension never be constructed. Instead of accessing their lots by way of a completed Mark Street Extension, the other lot owners would be able to use the petitioner's driveway to access the unfinished "paper street" that leads to their lots. The ZBA had safety concerns about the use of the driveway and the "paper street" by all of the lot owners. The ZBA resolved the safety issue by requiring the owner of the [s]ubject [p]roperty to pay a pro rata share for construction of the road. The imposition of this condition was intended to encourage the lot owners to build Mark Street Extension. The court found that "the requirement that the lot owner pay its pro rata share of construction of the road relates to the land and not to the person who receives the variance." Further, the superior court concluded that the liability condition was lawful, and pointed out that the fourth condition is "remarkably similar" to one of the conditions upheld in Wentworth Hotel, Inc. v. New Castle, 112 N.H. 21, 28 (1972). The petitioner appealed. Our review of zoning board decisions is limited. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005). We will uphold the trial court's decision unless the evidence does not support it or it is legally erroneous. Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 580 (2005). For its part, the trial court must treat all factual findings of the ZBA as prima facie lawful and reasonable. RSA 677:6 (1996). It may set aside a ZBA decision if it finds by

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the balance of probabilities, based upon the evidence before it, that the ZBA's decision was unreasonable. Chester Rod & Gun Club, 152 N.H. at 580. I. Cost Condition

The petitioner's arguments on appeal are virtually identical to the arguments she raised in the superior court. First we address whether the superior court erred by refusing to consider her vagueness argument concerning the cost condition because she did not raise it in her motion for rehearing before the ZBA. In her motion for rehearing, the petitioner alleged the following with respect to the cost condition: Condition 1 imposes a substantial but unspecified contingent penalty against the Lot owner, where Mark Street Extension is approximately nine hundred feet long. As such, the Lot will be burdened by this contingent penalty, and no reasonable person would purchase or finance the Lot for residential construction. The petitioner focuses on the word "unspecified," and argues that although her motion for rehearing does not state each and every way the cost condition is imprecise or lacking in detail, her motion does indicate that the cost condition lacks specificity, and thus is sufficient to preserve the issue for superior court review. The Town argues that in her motion for rehearing, the petitioner was alleging that the cost condition was a "penalty," and that "no reasonable person would purchase or finance the Lot for residential construction." The Town asserts that the petitioner never claimed in her motion for rehearing that she did not understand the cost condition or that she believed it was vague. The Town contends that since she did not include this argument in her motion for rehearing, it was proper for the superior court to refuse to consider it. RSA 677:3, I (1996) requires that a motion for rehearing to a zoning board "shall set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable." It further provides that a party may not appeal a zoning board decision: unless the appellant shall have made application for rehearing . . . 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 court unless the court for good cause shown shall allow the appellant to specify additional grounds. Id.

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"The statutory scheme is based upon the principle that the local board should have the first opportunity to pass upon any alleged errors in its decisions so that the court may have the benefit of the board's judgment in hearing the appeal." Blagbrough Family Realty Trust v. Town of Wilton, 153 N.H. 234, 238-39 (2006) (quotation omitted). Thus, a motion for rehearing must put the zoning board on notice of an alleged error in order to satisfy the requirements of RSA 677:3. See Colla v. Town of Hanover, 153 N.H. 206, 20809 (2006). If a timely motion for rehearing fails to set forth all alleged errors with respect to the ZBA's decision on the merits, the party may not raise those grounds in a later appeal unless the court for good cause shown orders otherwise. Blagbrough, 153 N.H. at 239. We conclude that the petitioner's motion for rehearing does not set forth her claim that the terms of the cost condition were vague. Contrary to the petitioner's position, arguing that the condition imposes a "substantial but unspecified contingent penalty against the lot owner" is not the same as arguing that the specific terms used in the condition are vague. The thrust of the petitioner's argument in her motion for rehearing was that because the cost of constructing Mark Street Extension is presently unknown, no reasonable person would purchase or finance the property for residential construction, and thus the condition functions as a penalty against the lot owner. It would have been simple for the petitioner to clearly articulate her position that the specific terms "pro rata," "built" and "cost" are vague and undefined, yet she did not do so. Instead, she impermissibly raised this argument for the first time on appeal to the superior court. This case is distinguishable from Colla v. Town of Hanover, where on appeal the plaintiffs submitted to the superior court the identical questions that were raised in their motion for reconsideration of the ZBA's denial of their permit. See Colla, 153 N.H. at 207. Here, because the plaintiff did not raise her vagueness argument in her motion for rehearing, the argument was not preserved for appeal. It was proper for the superior court to decline to consider it, and, likewise, we refuse to address it here. We now turn to the petitioner's remaining arguments pertaining to the cost condition. While there is no express statutory provision permitting a zoning board to place conditions on the granting of a variance, we have previously held that a board's extensive powers include the authority to attach reasonable conditions where they are necessary to preserve the spirit of the ordinance. See Vlahos Realty Co. v. Little Boar's Head District, 101 N.H. 460, 463 (1958); Wentworth Hotel, Inc., 112 N.H. at 27; see also 3 K. Young, Anderson's American Law of Zoning

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