Patrick Walsh & a. v. Village District of Little Boar's Head

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0383, Patrick Walsh & a. v. Village
District of Little Boar's Head, the court on March 10, 2017,
issued the following order:

Having considered the briefs, memorandum of law, 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, Patrick Walsh and Karen Walsh, appeal the decision of the
Superior Court (Wageling, J.) affirming the decision of the Village of Little
Boar’s Head Zoning Board of Adjustment (board) upholding the issuance of a
building permit to the intervenor, Joan Granlund, to remove and replace a
tennis court on her residential property. The plaintiffs argue that the court
erred in concluding that the replacement of the existing asphalt tennis court
with a new, rubber turf tennis court in the same location, having the same
dimensions, constitutes a continuation of a pre-existing, non-conforming use.

The parties do not dispute that the tennis court, having been constructed
on the property prior to the adoption of the relevant wetlands buffer and
property line setback requirements in the zoning ordinance for the Village of
Little Boar’s Head District (village), constituted a pre-existing, non-conforming
use. The acting zoning inspector for the village issued a permit to the
intervenor pursuant to Section VIII(A) of the ordinance, which provides, in
relevant part, that a lawful, pre-existing, non-conforming use “may be
continued” despite such non-conformity. See Little Boar’s Head District Zoning
Ordinance Section VIII(A) (2015) (prior version). The permit specified that the
tennis court “can be replaced, but not increased in size in any direction.” The
plaintiffs appealed the permit to the board. After a hearing, the board voted
unanimously to uphold the permit. Following the board’s denial of their
motion for rehearing, the plaintiffs appealed to the superior court, which
affirmed the board’s decision.

Our review in zoning cases is limited. Merriam Farm, Inc. v. Town of
Surry, 168 N.H. 197, 199 (2015). The zoning 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 (2016). 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 argue that the superior court erred in affirming the board’s
decision because the ordinance only allows for a pre-existing, non-conforming
use to be “continued,” and the intervenor’s plan to “remove and replace” the
existing tennis court necessarily involved a period of discontinuity, thereby
eliminating its “grandfathered” status. The superior court concluded that the
board implicitly found, as a factual matter, that the tennis court continued to
exist as a non-conforming structure within the meaning of Section VIII of the
ordinance, see Pappas v. City of Manchester Zoning Bd., 117 N.H. 622, 625
(1977) (affirming zoning board’s implicit findings), and that the board’s implicit
finding was not unreasonable, see Merriam Farm, 168 N.H. at 199 (court will
not set aside board’s findings unless erroneous or unreasonable).

The plaintiffs also argue that to interpret the ordinance to allow for the
voluntary removal and replacement of a pre-existing, non-conforming structure
would be inconsistent with the zoning objective to reduce or eliminate non-
conformity “as completely and rapidly as possible.” New London Land Use
Assoc. v. New London Zoning Board, 130 N.H. 510, 518 (1988) (quotation
omitted). The court noted, however, that some municipalities have adopted
ordinances expressly allowing non-conforming uses to continue indefinitely,
see, e.g., Guy v. Town of Temple, 157 N.H. 642, 644 (2008) (noting that pre-
existing, non-conforming uses “may be continued indefinitely” under
ordinance), and ruled that if the objective of the ordinance was to eliminate
non-conformity as soon as possible, then the village could have drafted the
ordinance differently, see Anderson v. Motorsports Holdings, 155 N.H. 491, 495
(2007) (noting that “we will not guess what the drafters of the ordinance might
have intended, or add words that they did not see fit to include”).

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 superior 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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