Walter Donovan v. Town of Piermont

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0360, Walter Donovan v. Town of
Piermont, the court on February 18, 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 plaintiff, Walter Donovan, appeals the order of the Superior Court
(MacLeod, J.) affirming a decision of the Zoning Board of Adjustment (ZBA) of
the defendant, the Town of Piermont, granting an application for a special
exception to the intervenor, Whitman Real Estate Holding Company, LLC
(Whitman). The plaintiff argues that the superior court erred in: (1) ruling that
Whitman’s application was not barred by res judicata; (2) affirming the ZBA’s
erroneous application of the governing legal standard; (3) concluding that there
was evidence to support the application; and (4) affirming an unlawful
expansion of a pre-existing nonconforming use.

The plaintiff first argues that the superior court erred in ruling that
Whitman’s application for a special exception was not barred by res judicata.
Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City of
Somersworth, 162 N.H. 553, 555 (2011). Factual findings by 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). We will uphold the superior
court’s decision unless the evidence does not support it or it is legally
erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555. 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. Id.

Whitman operates a summer camp for children on Lake Armington. The
camp was established in 1948, before the town adopted its zoning ordinance.
In November 2001, the town zoning administrator notified Whitman that it was
violating the ordinance by exceeding the scope of its nonconforming use. After
years of litigation that followed, including appeals to this court, the ZBA found,
in a decision dated October 16, 2008, that Whitman’s continuing use of its
property as a summer camp for children “reflect[ed] the nature and purpose of
the prevailing nonconforming use,” and allowed the use provided that the
camp’s population not exceed 425 campers and counselors-in-training and 213
staff members, for a total population of 638 persons. However, the board
specifically noted that “nothing in this decision is intended to prejudge any
future special exception or other application the Camp may make to this
Board.” We affirmed the ZBA’s decision in its entirety. See Wendy Cahill & a.
v. Town of Piermont, No. 2009-0754 (N.H. April 22, 2011).

On February 1, 2012, Whitman applied to the ZBA for permission to add
twenty-two members to the camp staff, for a total of 235 staff members.
According to the application, there would be no change in the camp’s daily
operating schedule, and no expansion of its facilities. Whitman stated that it
would be “keeping the Camp within its historical purpose,” and that the
additional staff would serve to improve supervision and safety. On June 25,
2012, the ZBA denied the request on the basis that Whitman had failed to
demonstrate a material change in circumstances since the ZBA’s October 16,
2008 decision, citing Fisher v. Dover, 120 N.H. 187 (1980). Approximately one
year later, Whitman applied for a special exception seeking the same relief. On
November 25, 2013, after two public hearings, the ZBA granted the application,
and on May 12, 2015, the superior court affirmed. The plaintiff argues that the
superior court erred in ruling that Whitman’s application for a special
exception was not barred by res judicata, after the ZBA denied its previous
request for the same relief.

We recently held that res judicata does not bar a variance application
after the denial of a building permit application. See Merriam Farm, Inc. v.
Town of Surry, 168 N.H. 197, 201 (2015). We reasoned that if we were to hold
otherwise, we would “effectively require landowners to simultaneously apply for
all potentially necessary land use permits, variances, and exceptions.” See id.
We noted, moreover, that “such a decision would contravene the statutory
scheme, which explicitly establishes separate procedures for seeking
exceptions to building permit requirements and seeking variances.” Id.
Similarly, in this case, Whitman first sought permission to add twenty-two staff
members as a lawful expansion of its pre-existing, nonconforming use. See
Town of Hampton v. Brust, 122 N.H. 463, 469 (1982) (“[W]here there is no
substantial change in the use’s effect on the neighborhood, the landowner will
be allowed to increase the volume, intensity or frequency of the non-conforming
use.”); see also RSA 674:19 (2008). When the ZBA denied that application,
Whitman sought a special exception. See New London Land Use Assoc. v. New
London Zoning Board, 130 N.H. 510, 517 (1988) (“A special exception is a use
permitted upon certain conditions as set forth in a town’s zoning ordinance.”);
see also RSA 674:33, IV (Supp. 2015). Based upon our holding in Merriam
Farm, we conclude that the superior court correctly ruled that res judicata did
not bar Whitman’s application for a special exception.

The plaintiff next argues that the superior court erred in affirming the
ZBA’s decision because the ZBA, in ruling on Whitman’s special exception
application, should have considered whether its “entire operation” met the

2
special exception requirement. “This means,” the plaintiff argues, that in
applying for a special exception, Whitman “takes the risk that the size of its
operation, if . . . approved . . . , may be smaller in size than what is allowed as
a nonconforming use.” We disagree. The parameters of Whitman’s pre-
existing, nonconforming use were set forth in the ZBA’s 2008 decision, which
set limits of 425 campers and counselors-in-training and 213 staff members.
“The right to continue a nonconforming use is a vested right, secured not only
by statute, see RSA 674:19 (2008), but also by Part I, Articles 2 and 12 of the
New Hampshire Constitution.” Dovaro 12 Atlantic, LLC v. Town of Hampton,
158 N.H. 222, 227 (2009). Accordingly, we conclude that the ZBA correctly
applied the special exception criteria to Whitman’s request for an additional
twenty-two staff members. See Brandt Dev. Co. of N.H., 162 N.H. at 555. The
plaintiff’s reliance upon New London Land Use Assoc. is misplaced because the
applicant in that case sought to convert its motel into a condominium
development, “a new use which was not in existence at the time the zoning
ordinance was passed and the nonconformity established.” See New London
Land Use Assoc., 130 N.H. at 517. In this case, the special exception involves
no new construction and no change in Whitman’s use of the property as a
children’s camp.

The plaintiff next argues that the superior court erred in affirming the
ZBA’s decision because Whitman did not meet the requirements for a special
exception. When reviewing a decision of a zoning board of adjustment, the
superior court acts as an appellate body, not as a fact finder. Chester Rod &
Gun Club v. Town of Chester, 152 N.H. 577, 583 (2005). Resolution of
conflicts in the evidence and the determination of issues of fact are the proper
function of a zoning board of adjustment, not the superior court. Lone Pine
Hunters’ Club v. Town of Hollis, 149 N.H. 668, 671 (2003).

Under Article V, Section 4 of the town’s zoning ordinance, the ZBA may
grant a special exception if it determines that: (a) the proposed site is an
appropriate location for such use; (b) the use will not adversely affect the
neighborhood; (c) the proposed architecture and landscaping will not be
detrimental to the general character of the neighborhood; and (d) the use
complies with all regulations established by the ordinance. See Piermont, N.H.,
Zoning Ordinance, Article V, § 4 (2011). The plaintiff challenges only the
evidence supporting the criteria in subsections (a) and (b) of Section 4. The
plaintiff argues that the site is not an appropriate location for the requested
use because the camp already is one of the largest summer camps in the state,
and Lake Armington is relatively small. In addition, the camp population
already increases the town’s total population by approximately 75 percent. The
plaintiff also argues that the proposed use of the site will adversely affect the
neighborhood. Neighbors have complained about noise from the camp, and the
plaintiff asserts that the increase in staff will result in an increase in the noise
level.

3
 The ZBA found that the site has been used as a children’s camp since at
least 1948, and that its natural features, along with its lawful development,
make it appropriate for the proposed use. In addition, the ZBA found that the
addition of twenty-two staff members would not result in a significant increase
in noise emanating from the camp; on the contrary, the ZBA found, “the added
staff should contribute in a positive manner to off-site noise, in that the
additional staff should enable the Camp to better manage the campers and
their generation of noise.” We find evidence in the record to support the ZBA’s
findings. See Brandt Dev. Co. of N.H., 162 N.H. at 555.

Finally, the plaintiff argues that the increased staff constitutes an
unlawful expansion of Whitman’s nonconforming use. The superior court
affirmed the ZBA’s decision to approve the additional staff as a special
exception under the town’s ordinance, not as a lawful expansion of Whitman’s
nonconforming use. See 1808 Corp. v. Town of New Ipswich, 161 N.H. 772,
777 (2011) (distinguishing between nonconforming uses and special
exceptions). Therefore, we conclude that the plaintiff’s assertion provides no
ground for error.

We have considered the plaintiff’s remaining arguments, and have
concluded that they do not warrant further discussion. See Vogel v. Vogel, 137
N.H. 321, 322 (1993).

Affirmed.

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

Eileen Fox,
Clerk

4