Preview:

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 ___________________________

Strafford No. 2010-641

BRANDT DEVELOPMENT COMPANY OF NEW HAMPSHIRE, LLC v. CITY OF SOMERSWORTH Argued: June 9, 2011 Opinion Issued: October 12, 2011 Donahue Tucker & Ciandella, PLLC, of Portsmouth (Christopher L. Boldt and Keriann Roman on the brief, and Mr. Boldt orally), for the petitioner.

Mitchell Municipal Group, P.A., of Laconia (Walter L. Mitchell and Leigh S. Willey on the brief, and Mr. Mitchell orally), for the respondent.

LYNN, J. The petitioner, Brandt Development Company of New Hampshire, LLC (Brandt), appeals an order of the Superior Court (O'Neill, J.) upholding the decision of respondent City of Somersworth's (City) zoning board of adjustment (ZBA) to deny its application for a variance. We reverse and remand. The following facts are drawn from the record. Brandt owns a house and attached barn on Myrtle Street in the residential multi-family district of the

City. In November 1994, Brandt applied for a variance from size and frontage requirements to convert the property, then being used as a duplex, into four dwelling units. The ZBA denied the application after finding that the property failed to satisfy the five criteria for a variance set out in RSA 674:33, I(b) (1986). See Labrecque v. Town of Salem, 128 N.H. 455, 457-58 (1986). Brandt did not appeal the 1994 decision. From 1995 to 1997, Brandt added four bedrooms to the upstairs unit after receiving permits to do so. As a result, today the property contains one seven-bedroom unit upstairs and one three-bedroom unit downstairs. In December 2009, Brandt again sought to convert the Myrtle Street property into a four-unit dwelling, and again applied to the ZBA for a variance from the City's area, frontage, and setback requirements. Brandt proposed to renovate and reconfigure both the existing dwelling units and the attached barn, so that the property would contain four units: one with four bedrooms, one with two bedrooms, and two with three bedrooms. The ZBA declined to consider the merits of the variance application on the basis that "circumstances [had] not changed sufficiently to warrant acceptance of the application." Brandt unsuccessfully moved for rehearing and appealed the ZBA's decision to the superior court pursuant to RSA 677:4 (2008). The superior court affirmed the ZBA's decision in August 2010. This appeal followed. Judicial review in zoning cases is limited. Harrington v. Town of Warner, 152 N.H. 74, 77 (2005). Factual findings of the ZBA are deemed prima facie lawful and reasonable, and the ZBA's decision will not be set aside by the superior court absent errors of law unless it is persuaded by the balance of probabilities, on the evidence before it, that the ZBA decision is unlawful or unreasonable. RSA 677:6 (2008); Harrington, 152 N.H. at 77. We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Harrington, 152 N.H. at 77. The interpretation and application of a statute or ordinance is a question of law, and we review the superior court's ruling on such issues de novo. Atwater v. Town of Plainfield, 160 N.H. 503, 507 (2010). Brandt argues that the ZBA was required to review its 2009 variance application on the merits even though it asked for essentially the same relief as the 1994 application. Brandt contends that, under the standard set out in Fisher v. City of Dover, 120 N.H. 187, 191 (1980), material changes in circumstances occurred during the fifteen years between the 1994 ruling and the 2009 application, including changes in the case law interpreting the criteria for granting a variance, the City's zoning ordinance and policy documents, and the physical layout of the property. The City counters that the ZBA acted reasonably in denying the application because these intervening developments

2

do not constitute material changes. The City argues that even a material change in circumstances under the unnecessary hardship prong of the fivepart test for a variance does not require the ZBA to hear Brandt's application anew because the ZBA denied the 1994 application on four other statutory grounds, none of which have changed in the meantime. Thus, the issue on appeal is whether the facts and circumstances surrounding the 2009 application constitute material changes in circumstances, see Fisher, 120 N.H. at 191, requiring the ZBA to conduct a full review of Brandt's variance request. It is well settled that a zoning board, having rejected one variance application, may not review subsequent applications absent a "material change of circumstances affecting the merits of the application." Id. The rule in Fisher is consistent with the majority rule that "a new application for administrative relief or development permission may be considered by a board if there is a substantial change in . . . the circumstances or the conditions relevant to the application." 4 E. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning

Download 2010-641 Brandt Development Company of New Hampshire, LLC v. City of Somersworth

New Hampshire Law