Exeter Farms Homeowners Association & a. v. Town of Exeter

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0036, Exeter Farms Homeowners
Association & a. v. Town of Exeter, the court on September 30,
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, Exeter Farms Homeowners Association, Mirror Image
Condominium Association, and several residents of the Town of Exeter, appeal
the order of the Superior Court (Schulman, J.) upholding the decision of the
town’s Zoning Board of Adjustment (board) to grant the intervenor, Seacoast
Family Promise, a special exception to operate a daytime social services facility.

Our review in zoning cases is limited. Merriam Farm, Inc. v. Town of
Surry, 168 N.H. 197, 199 (2015). The board’s factual findings 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 board’s decision is
unreasonable. Id.; see RSA 677:6 (2008). The party seeking to set aside the
board’s 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.

The plaintiffs first argue that the superior court erred in affirming the
board’s determination that the subject building is a “community building” as
defined by the town’s zoning ordinance. The interpretation and application of
an ordinance is a question of law, which we review de novo. Merriam Farm,
168 N.H. at 199. The intervenor’s proposed facility is located in the R-2
district, which is primarily a single-family, residential district. See Exeter,
N.H., Ordinances art. 4, § 4.2 (amended March 2014) (Ordinance). Community
buildings are allowed in the R-2 district by special exception. See id.
“Community buildings” include any “building . . . the primary purpose of which
is to provide social and recreational services to the citizens of the community,
focused on promoting their health and general welfare.” Id. at art. 2.2.20.

The record shows that the intervenor provides daytime services to
homeless families with children under the age of eighteen. These services
include assistance with employment searches, money management, and
nutritional counseling. It also provides other services, which may be
considered recreational, including gardening, yoga, and areas for listening to
music and playing games. The record shows that the intervenor also “has
brought in musicians, puppeteers, art teachers and gardening experts to
support, educate and entertain the children.”

The plaintiffs argue that the proposed facility is not a “community
building” because the intervenor’s recreational services are not “central” to its
mission. The plaintiffs also argue that the facility must provide recreational
services, not simply recreational opportunities. We conclude, however, that the
evidence in the record supports the board’s determination that the proposed
facility meets the definition of a community building because it will provide
“social and recreational services,” and that these services, in combination, are
“primary” to any other purpose to which the building may be used.

The plaintiffs also argue that the proposed facility is not a “community
building” because the intervenor’s services are not directed to “citizens of the
community.” They argue that its services are “focused on a few select families”
rather than “a wide spectrum of individuals.” Nothing in the term “citizens of
the community,” however, requires that the social and recreational services
must be provided to “a wide spectrum of individuals,” rather than “a few select
families.” See Merriam Farm, 168 N.H. at 199 (interpretation of zoning
ordinance is a question of law, which we review de novo).

The plaintiffs next argue that the superior court erred in affirming the
board’s decision to grant the special exception because the conditions it
imposed do not relate to basic zoning objectives. The record shows that the
board granted the special exception with the following conditions:

 There shall be no overnight stays permitted on the property;
 An adequately trained staff member will be on site whenever
guests are present;
 No alcohol or non-prescribed drugs shall be permitted on the
site;
 No one who has been arrested for, or convicted of, a violent or
drug-related crime shall be allowed into the program or allowed
to stay in the program; and
 Alcohol and drug screenings shall be conducted prior to
allowing guests into the program; and a criminal records check
with the Verity Background Check (or similar program) shall be
conducted to ascertain the criminal history of all potential
guests.

“[W]e have previously held that a board’s extensive powers include the
authority to attach reasonable conditions where they are necessary to preserve

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the spirit of the ordinance.” Robinson v. Town of Hudson, 154 N.H. 563, 568
(2006). “Conditions are reasonable when they relate to the use of the land and
not to the person by whom such use is to be exercised.” Id. at 569.

One of the criteria for a special exception is “[t]hat the use is so . . .
operated that the public health, safety, welfare and convenience will be
protected.” Ordinance, art. 5.2(B). We conclude that the conditions are
reasonable and necessary to preserve the spirit of the ordinance as expressed
in the special exception criteria. We also conclude that the conditions relate to
the use of the land, rather than to the intervenor’s particular operation. See
Robinson, 154 N.H. at 569. One other condition of approval, to which neither
party objects, expressly states that “[t]he conditions of this approval shall run
with the property.” Thus, the conditions will apply to any provider of daytime
social and recreational services offered to homeless families at this location.

We are not persuaded by the plaintiffs’ argument that the conditions are
unreasonable because they are “unenforceable from an administrative
perspective.” The land use statutes contain various enforcement procedures,
see, e.g., RSA 675:15 (2008) (injunctive relief); RSA 676:17-a (2008) (cease and
desist orders); RSA 676:17-b (Supp. 2015) (local land use citations), and the
plaintiffs have failed to show that such procedures would be ineffective to
enforce the conditions of approval in this case. See Malachy Glen Assocs., 155
N.H. at 105.

The plaintiffs next argue that the superior court erred in finding that the
board acted reasonably and lawfully because, they contend, it failed to consider
an appraisal report submitted, for the first time, with its motion for rehearing.
The board may grant a rehearing “if in its opinion good reason therefor is
stated in the motion.” See RSA 677:2 (2008). The plaintiffs argue that the
board erred in failing to consider their appraiser’s report because, after
receiving the intervenor’s March 2, 2015 expert report, they attempted to retain
an appraiser to provide a report prior to the March 17, 2015 hearing, but were
“unable to find anyone that could commit to producing any materials in such a
short span of time.” However, the record does not show that the plaintiffs
sought to continue the hearing on this basis. Nor did they argue in the
memorandum submitted to the board prior to the hearing that they lacked a
sufficient opportunity to provide an expert report.

Moreover, although the plaintiffs assert that “[t]he need for an expert
opinion only became apparent when [the intervenor’s appraiser] submitted his
opinion on behalf of the Intervenor with [its] March 2, 2015 submission,” the
record supports the superior court’s finding that the plaintiffs had earlier
opportunities to submit an expert report. One of the requirements for
obtaining a special exception is that the use “shall not adversely affect abutting
or nearby property values.” See Ordinance, art. 5.2(H). Thus, the plaintiffs
were on notice prior to the March 17, 2015 hearing that impact on abutting

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property values was a factor the board was required to consider. Indeed, a
number of plaintiffs testified at the September 16, 2014 and November 18,
2014 hearings that the intervenor’s proposal would adversely affect property
values, but none of the plaintiffs provided an expert report prior to submitting
their April 30, 2015 rehearing request. One board member commented that he
did “not think it is fair to come in with this evidence when [the plaintiffs] had
ample time to submit it before.” Accordingly, we find no error in the superior
court’s order affirming the board’s decision to reject the plaintiffs’ newly-
proffered appraisal as sufficient grounds for rehearing.

The plaintiffs assert that the board should have considered whether the
report from their expert would have changed the result. However, the record
shows that the board considered this issue. One board member stated that
she did not find the evidence “particularly persuasive.” Another member stated
that “even if the Board had had this appraisal before,” he “[did] not think it
would [have] change[d] the outcome.” The board chairman noted that although
he had voted to deny the request for a special exception, he did not believe that
it would be “productive” to have a rehearing and “concurred [that] they should
deny the request.”

The plaintiffs also argue that the board erred in relying upon the
opinions of the intervenor’s expert because, they assert, he led the board to
believe that he was acting as an objective appraiser, rather than as a
consultant advocating for the intervenor’s position. The plaintiffs assert that
this “raised a significant ethical issue” that the board erred in failing to
consider. We conclude that it was within the board’s discretion to assess the
credibility of the intervenor’s expert and determine the weight that should be
given to his report. See Harborside Assocs. v. Parade Residence Hotel, 162
N.H. 508, 519-20 (2011). The intervenor’s appraisal supports the board’s
determination that the use will not adversely affect nearby property values.
Accordingly, we find no error.

The plaintiffs next argue that the superior court erred in finding that that
the board reasonably determined that the proposed use is compatible with the
district. One criterion for a special exception is “[t]hat the proposed use will be
compatible with the zone district and adjoining post 1972 development where it
is to be located.” Ordinance, art. 5.2(C). The intervenor’s expert described the
subject property as a “cape style house” and noted that the area is “home to a
number of office parks, larger office buildings, and small free standing office
buildings many of which are former houses.” According to the expert, the
subject property was used as a doctor’s office for over thirty years starting in
the 1980s and, more recently, as a day care center. The plaintiffs argue,
among other things, that the proposed use is more intense than the prior uses,
and that it will result in more traffic. The town counters that the proposed use
would not result in any additional traffic. We conclude that the record
supports the superior court’s decision to affirm the board’s finding that the

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proposed use is compatible with the district. We further conclude that the
record does not support the plaintiffs’ assertion that any non-residential use in
the district must support the residential uses in the district to be compatible
with the district. See Malachy Glen Assocs., 155 N.H. at 105.

Finally, the plaintiffs argue that the superior court erred in affirming the
board’s finding that the proposed use meets the special exception requirement
that it protect “the public health, safety and welfare.” See Ordinance, art.
5.2(B). The plaintiffs argue that the board’s findings in this regard rest entirely
upon the intervenor’s compliance with conditions that are administratively
unenforceable and that the intervenor “has not represented that it will provide
ongoing criminal background [checks] and drug/alcohol monitoring to ensure
compliance with its protocols.” The superior court found, however, that the
intervenor had submitted “abundant evidence that [it] will be vigilant in
ensuring compliance with its safety measures and screening procedures.” We
conclude that the record supports the superior court’s decision to affirm the
board’s finding that the proposed use will protect the public health, safety and
welfare. See Malachy Glen Assocs., 155 N.H. at 105.

In light of this order, the intervenor’s motion to schedule argument
before a 3JX panel is moot.

Affirmed.

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

Eileen Fox,
Clerk

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