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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 Nos. 2004-886 2006-111 MALACHY GLEN ASSOCIATES, INC. v. TOWN OF CHICHESTER Argued: January 5, 2007 Opinion Issued: March 20, 2007 Tarbell Professional Association, of Concord (Friedrich K. Moeckel on the brief and orally), for the plaintiff. Upton & Hatfield, LLP, of Concord (Matthew R. Serge on the brief and orally), for the defendant. HICKS, J. In these consolidated land use appeals, the defendant, Town of Chichester (town), appeals a ruling of the Superior Court (McGuire, J.) reversing a decision by the Chichester Zoning Board of Adjustment (ZBA) to deny a variance to the plaintiff, Malachy Glen Associates, Inc. Because we affirm this ruling, we need not address the other issues raised on appeal. The record reflects the following facts. In March 2000, the Chichester Planning Board approved a site plan submitted by the plaintiff to construct a self-storage facility on property located on Dover Road in Chichester. The site plan depicted structures and paved surfaces within one hundred feet of a

wetland located on the property. The plaintiff recorded the site plan at the Merrimack County Registry of Deeds on September 20, 2000, when the town did not have a wetlands ordinance. On March 15, 2003, the town enacted a wetlands ordinance requiring a one-hundred-foot buffer around all wetlands. The plaintiff had not yet begun development of the site. On September 9, 2003, the plaintiff applied for a variance from the wetlands ordinance. The ZBA denied the variance. After its motion for rehearing was denied, the plaintiff appealed the denial to the trial court, alleging, among other things, that "[t]he ZBA failed to consider [the] variance request under the standard articulated by the New Hampshire Supreme Court." The trial court agreed, and remanded the matter to the ZBA. Upon remand, the plaintiff filed a new variance application which the ZBA bifurcated, sua sponte, into two separate requests. In May 2005, the ZBA granted a variance to "provide access only" to the property but denied the area variance request to build the storage unit structures within the one-hundredfoot buffer zone. The plaintiff filed a motion for rehearing, which was denied by the ZBA. The plaintiff again appealed to the trial court arguing, among other things, that "the ZBA's decision is unlawful and unreasonable." The court again agreed, and ordered the ZBA to grant the variance, holding that although "the ZBA applied the correct legal standard in making it[s] determination," it "failed to consider evidence placed before it." The town appealed this ruling. The superior court's review in zoning cases is limited. 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. The party seeking to set aside the ZBA decision bears the burden of proof in the superior court. Garrison v. Town of Henniker, 154 N.H. ___, ___, 907 A.2d 948, 950 (2006) (citations omitted). Where the ZBA has not addressed a factual issue, the trial court ordinarily must remand the issue to the ZBA. Chester Rod & Gun Club v. Town of Chester, 152 N.H. 577, 583 (2005). However, remand is unnecessary when the record reveals that a reasonable fact finder necessarily would have reached a certain conclusion. Simpson v. Young, 153 N.H. 471, 474 (2006).

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We will uphold the trial court's decision unless the evidence does not support it or it is legally erroneous. Chester, 152 N.H. at 580. The town argues that the trial court erred when it reversed the ZBA's denial of the variance application because the plaintiff failed to establish four of the criteria required for the variance. 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. Garrison, 154 N.H. at ___, 907 A.2d at 950. Because the ZBA found that granting the variance would not result in a diminution of surrounding property values, this factor is not raised on appeal. I. Public Interest & Spirit of the Ordinance

The requirement that the variance not be contrary to the public interest is "related to the requirement that the variance be consistent with the spirit of the ordinance." Chester, 152 N.H. at 580. [T]o be contrary to the public interest . . . the variance must unduly, and in a marked degree conflict with the ordinance such that it violates the ordinance's basic zoning objectives. One way to ascertain whether granting the variance would violate basic zoning objectives is to examine whether it would alter the essential character of the locality. . . . Another approach to [determine] whether granting the variance would violate basic zoning objectives is to examine whether granting the variance would threaten the public health, safety or welfare. Id. at 581 (quotations and citation omitted). The ZBA found that the variance would be contrary to the public interest and to the spirit of the ordinance because the project would "encroach on the wetland buffer" that was "put in place three years ago and reaffirmed in March 2005." The trial court found the ZBA's conclusion to be unreasonable. Noting

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that the ZBA found the project to be a "conforming commercial project in a commercial area," the trial court found that the project did not violate the "ordinance's basic objectives by altering the essential character of the locality." The court further found that the project will not injure the health, safety or welfare of the public because: (1) the ZBA granted a variance for access to the property, which encroaches closer to the wetlands; and (2) the ZBA had before it "credible and uncontroverted evidence" from the plaintiff's consultant "that this project will not injure the wetlands." We agree with the trial court that a reasonable fact finder could not have found otherwise. The record shows that the properties in the area consist of a fire station, a gas station, and a telephone company. The project would consist of eight storage unit buildings of various sizes, with access to the property from Main Street. Therefore, the evidence was sufficient for the trial court to have found, as a matter of law, that granting the variance would not alter the essential character of the neighborhood. Moreover, the proposed project includes a closed drainage system, a detention pond, and an open drainage system

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