The RDM Trust & a. v. Town of Milford & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2015-0495, The RDM Trust & a. v. Town of
Milford & a., the court on March 31, 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 reverse.

The plaintiff, Aaron Kaplan, Trustee of the RDM Trust, appeals the
decision of the Superior Court (Ignatius, J.) affirming a decision of the Town of
Milford Zoning Board of Adjustment (ZBA) granting, with conditions, the
application of Nathan Langlais (owner) for an equitable waiver of dimensional
requirements for a deck. See RSA 674:33-a, I (2008). The plaintiff argues that
the court erred in affirming the ZBA’s decision because the owner failed to meet
the statutory requirements for an equitable waiver.

The owner and the plaintiff own abutting residential lots in the Town of
Milford (town). In 2013, the owner built a deck on his house without obtaining
the required permit from the town. After construction was completed, the
town’s building official issued a notice of violation. In response, the owner
submitted a permit application, in which he estimated the distance from the
deck to the boundary line of plaintiff’s property to be approximately ten to
twelve feet. Because the town’s zoning ordinance includes a side setback
requirement of fifteen feet, the building official required the owner to submit a
survey. The owner’s survey showed that both his house, which was built
before the ordinance became effective, and the newly-constructed deck were
approximately four feet from the side boundary line. The building department
informed the owner that he would need to either remove the deck or obtain a
special exception from the ZBA. The owner instead applied for an equitable
waiver to allow for a reduced side setback for a deck on an existing non-
conforming structure. In his application, the owner stated that he, “in good
faith, reasonably calculated that the existing house met any required side
setbacks, and the new deck was well within the rear setback.”

At public hearings, the owner stated that he estimated that the distance
from the deck to the side boundary line was ten to twelve feet, and that after
the survey was completed, he realized his mistake. The ZBA found that the
violation was the result of a “good faith error” in calculation and granted the
owner an equitable waiver of the fifteen-foot side setback requirement. The
plaintiff appealed, and the superior court affirmed.
 Our review in zoning cases is limited. Taylor v. Town of Wakefield, 158
N.H. 35, 38 (2008). 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’s decision is unreasonable. Id.; see RSA 677:6 (2008).
The party seeking to set aside the ZBA decision in the superior court bears the
burden of proof. Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102,
105 (2007). We, in turn, will uphold the superior court’s decision unless it is
not supported by the evidence or is legally erroneous. Id.

To obtain an equitable waiver under RSA 674:33-a, an applicant must
meet four criteria. See Taylor, 158 N.H. at 40; RSA 674:33-a, I(a)-(d). Because
an applicant must meet all four requirements, for purposes of this appeal, we
need address only RSA 674:33-a, I(b). That subsection states that absent
certain conditions, the violation for which the applicant seeks an equitable
waiver must have been caused by one of two conditions: (1) an error in
measurement or calculation by the owner or owner’s agent; or (2) an error by a
municipal permitting official in interpreting or applying the ordinance. See
Taylor, 158 N.H. 40-41; RSA 647:33-a, I(b). In this case, the owner does not
assert that the violation was the result of a municipal permitting official’s error.
Thus, the issue here is whether the violation was caused by an error in
measurement or calculation by the owner or his agent.

In affirming the ZBA’s decision, the superior court noted that “[t]here is
no question it would have been better if the owner[ ] had sought a permit as
required,” and that the permitting process “would likely have revealed the
actual lot line.” The court found, however, that the owner’s estimate of ten to
twelve feet between his deck and the plaintiff’s property line was “a good faith
error in calculation,” and on that basis, it affirmed the ZBA’s finding that the
applicant met the criteria set forth in RSA 674:33-a, I(b).

In Taylor, we rejected the argument that RSA 674:33-a, I(b) should be
construed to allow an equitable waiver for an “honest mistake” or a “legitimate
mistake,” when the record did not support a finding that the violation was
caused by an owner’s error in measurement or calculation. See Taylor, 158
N.H. at 42. In this case, nothing in the record supports a finding that the
owner’s mistaken estimate caused the setback violation. Even if there were ten
to twelve feet separating the deck from the boundary line, the property owner
still would have been in violation of the setback requirement. Accordingly, we
conclude that the court erred in finding that the record supported the ZBA’s
finding that the requirements of RSA 674:33-a, I(b) were met.

We note that the building official advised the owner that he would need
to apply for a special exception, and in its brief the town states that its
ordinance contains a provision that allows for a limited expansion of non-

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conforming uses by special exception. Our decision is without prejudice to the
owner’s right to pursue such other remedies.

In light of our decision, we need not address the plaintiff’s remaining
arguments.

Reversed.

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

Eileen Fox,
Clerk

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