Joseph Yarborough & a. v. City of Portsmouth

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0323, Joseph Yarborough & a. v. City of
Portsmouth, the court on January 25, 2016, issued the following
order:

Having considered the briefs and record submitted on appeal, we conclude
that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The plaintiffs, Joseph Yarborough and Ellen Yarborough, appeal an order
of the Superior Court (Schulman, J.) upholding a decision of the zoning board of
adjustment (ZBA) for the defendant, the City of Portsmouth, denying them a
variance from the frontage requirement to enable them to subdivide their lot.
They contend that the frontage requirement does not “reflect” their neighborhood.
They further argue that the trial court erred by: (1) upholding the ZBA’s findings
that enforcement of the ordinance does not create an unnecessary hardship and
that a variance is not consistent with the spirit of the ordinance; and (2) not
addressing whether the variance would diminish surrounding property values.

Judicial review in zoning cases is limited. Town of Bartlett Bd. of
Selectmen v. Town of Bartlett Zoning Bd. of Adjustment, 164 N.H. 757, 760
(2013). Factual findings by the ZBA are deemed prima facie lawful and
reasonable, and the superior court will not set aside the ZBA’s decision 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. Id.; RSA
677:6 (2008). The burden is on the party contesting the ZBA’s decision. RSA
677:6. We will uphold the superior court’s decision unless the evidence does not
support it or it is legally erroneous. Town of Bartlett, 164 N.H. at 760.

We first address the plaintiffs’ arguments that the ordinance was not
“drafted taking into consideration the already-built environment,” see RSA
674:17, II (2008), and that “it does not ‘reflect the current character’” of the
neighborhood, see Belanger v. City of Nashua, 121 N.H. 389, 393 (1981)
(upholding trial court’s finding that ZBA unreasonably denied variance when
record was “replete with evidence that the area . . . [had] gone through
substantial changes from the time it was originally zoned for single family
residential use”). Our review of the record shows that it is doubtful whether
these arguments were raised before the ZBA. See RSA 677:3, I (2008); Robinson
v. Town of Hudson, 154 N.H. 563, 568 (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.”). Even assuming that these arguments
were raised before the ZBA, the record before us does not establish that the
plaintiffs presented any evidence to the ZBA to support them, such as evidence
establishing when the non-conforming lots were created or recent changes in the
character of the neighborhood.

Nor did the plaintiffs offer evidence on these issues to the trial court. See
RSA 677:10, :13 (2008). To the extent that the trial court might have
misunderstood the plaintiffs’ arguments, the plaintiffs failed to clarify their
arguments when they moved for reconsideration of the trial court’s order. See
Super. Ct. Civ. R. 12(e). Upon this record, we cannot say that the trial court’s
order was unsupported by the evidence or legally erroneous. See Town of
Bartlett, 164 N.H. at 760.

Finally, we address whether the trial court erred by upholding the ZBA’s
decision that the applicant failed to meet the unnecessary hardship and spirit of
the ordinance criteria for a variance and by not addressing whether a variance
would diminish surrounding property values. See RSA 674:33, I(b) (Supp. 2015).
As the appealing parties, the plaintiffs have the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon our
review of the trial court’s well-reasoned order, the plaintiffs’ challenges to it, the
relevant law, and the record submitted on appeal, we conclude that the plaintiffs
have not demonstrated reversible error. See id.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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