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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 ___________________________ Rockingham No. 2008-147 WILLIAM SCHROEDER & a. v. TOWN OF WINDHAM & a. Argued: November 19, 2008 Opinion Issued: December 18, 2008 Michael L. Donovan, of Concord, by brief and orally, for the plaintiffs. Wiggin & Nourie, P.A., of Manchester (Gregory E. Michael and Nicole M. Barsamian on the brief, and Mr. Michael orally), for the intervenors, Andrew P. and Christine J. Lane, trustees of the A&C Revocable Trust. Beaumont & Campbell, P.A., of Salem, for the Town of Windham, filed no brief. GALWAY, J. The intervenors, Andrew P. and Christine J. Lane, trustees of the A&C Revocable Trust, appeal the ruling of the Superior Court (Nadeau, J.) reversing the Town of Windham Zoning Board of Adjustment's (ZBA) decision to grant them an equitable waiver. See RSA 674:33-a (2008). We affirm.

The following facts are supported by the record. The intervenors reside on property located adjacent to Canobie Lake in Windham. In 2003, they sought to construct a detached garage on a portion of the property and obtained a building permit. After construction began, concerns arose regarding the potential impact on the surrounding wetlands. Alfred Turner, Director of Planning and Development for the Town of Windham, issued a stop work order. Turner eventually allowed construction to continue after the intervenors rotated the garage to increase the distance between excavation and wetlands and repaired the silt fencing. Subsequently, abutters to the property filed an administrative appeal with the ZBA challenging Turner's decision to allow construction of the garage. They argued that the garage fell within the Wetlands and Watershed Protection overlay district (WWPD), which prohibits its construction. The ZBA agreed, determining that a portion of the intervenors' property falls within the WWPD, and that the garage impinges upon the WWPD in violation of the town ordinance. The superior court affirmed the ZBA's decision. As a result, Turner withdrew the intervenors' building permit. Thereafter, the intervenors obtained from the ZBA the equitable waiver at issue here. The waiver permitted the garage to remain in its current location, despite its infringement into the WWPD. The plaintiffs, William Schroeder and Al Letizio, Jr., appealed to the superior court, arguing that the relief granted by the ZBA constitutes waiver of a use restriction, which cannot be waived under RSA 674:33-a. The court agreed and reversed the ZBA's decision to grant the equitable waiver. This appeal followed. Our review of zoning cases is limited. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005). "The factual findings of the ZBA are deemed prima facie lawful and reasonable, and will not be set aside by the trial court absent errors of law, unless the court is persuaded, based upon a balance of probabilities, on the evidence before it, that the ZBA's decision is unreasonable." Id. The party seeking to set aside the ZBA's decision bears the burden of proof on appeal to the superior court. Boccia v. City of Portsmouth, 151 N.H. 85, 89 (2004). We will uphold the superior court's decision on appeal unless it is not supported by the evidence or is legally erroneous. Id. RSA 674:33-a allows a landowner to obtain an equitable waiver when "a lot or other division of land, or structure thereupon, is discovered to be in violation of a physical layout or dimensional requirement imposed by a zoning ordinance" if certain criteria are met. RSA 674:33-a, I. The statute further provides that equitable waivers shall only be granted "from physical layout, mathematical or dimensional requirements, and not from use restrictions." RSA 674:33-a, IV. On appeal, the intervenors argue that the superior court erred in finding that their request was for relief from a use restriction.

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Specifically, they argue that the zoning provision at issue is a setback provision, which constitutes a dimensional requirement. We have on several occasions recognized a distinction between area and use restrictions for purposes of zoning. See Harrington, 152 N.H. at 78; Boccia, 151 N.H. at 90. With respect to variances, a use variance allows the landowner to engage in a use of the land that the zoning ordinance prohibits. Harrington, 152 N.H. at 78. An area variance is generally made necessary by the physical characteristics of the lot. Id. In contrast to a use variance, an area variance involves a use permitted by the zoning ordinance but grants the landowner an exception from strict compliance with physical standards, such as setbacks, frontage requirements, height limitations and lot size restrictions. As such, an area variance does not alter the character of the surrounding area as much as a use not permitted by the ordinance. Id. (citation omitted). The critical distinction between area and use variances is whether the purpose of the particular zoning restriction is to preserve the character of the surrounding area and is thus a use restriction. Id. at 78-79. "Whether the variance sought is an area or use variance requires a caseby-case determination based upon the language and purpose of the particular zoning restriction at issue." Id. Therefore, we must interpret the zoning ordinance in order to determine the purpose of the restriction. Id. Because the traditional rules of statutory construction generally govern our review, the words and phrases of an ordinance should be construed according to the common and approved usage of the language. Anderson v. Motorsports Holdings, 155 N.H. 491, 494-95 (2007). When the language of an ordinance is plain and unambiguous, we need not look beyond the ordinance itself for further indications of legislative intent. Id. at 495. In Harrington, we examined whether a particular provision relating to the placement of manufactured housing parks created a use or area restriction for purposes of obtaining a variance. Harrington, 152 N.H. at 76. The zoning provision at issue provided that the proposed park must consist of at least ten acres, and the number of housing lots within the park was not to exceed twenty-five. Id. at 79. We concluded that this zoning provision created a use restriction because the limitation on the number of housing sites "applies regardless of the number of acres within the park." Id. at 79-80. "Thus, unlike an area restriction, the limitation on the number of manufactured housing sites is not related to the acreage or other physical attributes of the property.

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Rather, the restriction limits the intensity of the use in order to preserve the character of the area." Id. at 80. Here, section 601 of the Town of Windham Zoning Ordinance establishes the WWPD. See Town of Windham, Zoning Ordinance and Land Use Regulations

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