Quarry at Milford, A Condominium Unit Owners' Association v. Eber L. Currier & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0687, Quarry at Milford, A Condominium
Unit Owners’ Association v. Eber L. Currier & a., the court on
December 20, 2017, issued the following order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
plaintiff, Quarry at Milford, A Condominium Unit Owners’ Association, appeals
the order of the Superior Court (Temple, J.) upholding the decision of the Town
of Milford Zoning Board of Adjustment (the board) to conditionally approve the
variance application of the defendants, Eber L. Currier and Gertrude A.
Currier, Trustees of the Eber and Trudy Currier Family Trust (the trust), in
which the trust proposed operating an indoor and outdoor self-storage
business and commercial automotive garage. We affirm.

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 the balance of probabilities, on
the evidence before it, that the decision is unlawful or 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 will uphold the trial court’s order
unless it is not supported by the evidence or is legally erroneous. Id.

On appeal, the plaintiff argues that the trial court erred by finding that
the board’s approach of considering each of the trust’s proposed uses
separately prior to granting the variance was lawful and reasonable. The
plaintiff asserts that the board decided “to effectively treat a single variance
request as three variance requests” because “the [board’s] actual substantive
deliberations demonstrated that it considered each proposed use separately
and did not consider the proposed development as a whole.”

According to the plaintiff, the board “lacked jurisdiction to treat the
application as three separate applications” because the board’s notice of
hearing, “even as revised, did not apprise that the [board] was going to treat the
single variance request as three separate requests for the three uses sought by
the [trust].” Additionally, the plaintiff contends that, “[b]y focusing upon the
individual uses separately . . . the [board] simply did not really address the
actual proposal before it” and, in failing to do so, “made what should have been
a more difficult case that much simpler for the [trust] to the detriment of the
abutters.”

The trial court ruled that the board had jurisdiction to rule upon the
trust’s variance application because the amended notice of hearing “indicated
that the [b]oard would be considering a single variance application for several
non-conforming uses” and “the [b]oard ultimately decided to treat the
application in this very manner — as one variance requesting multiple non-
conforming uses.” Moreover, the court rejected the plaintiff’s argument that
the board failed to consider the proposed development as a whole, finding that
the board “could have reasonably concluded that the cumulative effect [of the
uses] was inconsequential” and that the board had, in fact, “implicitly
considered the cumulative impact of the project when it decided to vote on the
variance as a single application.”

The plaintiff further argues that the record does not support the trial
court’s finding that the board implicitly considered the cumulative impact of
the proposed uses. In so finding, the court relied upon the board’s decision to
vote on the variance as a single application and on the fact that “much of the
[trust’s] evidence . . . focused on the effect of more than one use.” See Thomas
v. Town of Hooksett, 153 N.H. 717, 724 (2006) (zoning board’s decision to grant
variance “amounted to an implicit finding by the board” that applicable factors
were met).

Next, the plaintiff maintains that the court erred by upholding the
board’s finding that the variance was neither contrary to the public interest nor
inconsistent with the spirit of the zoning ordinance. See RSA 674:33, I(b)(1),
(2) (2016). Specifically, the plaintiff contends that the court erred because: (1)
neither the board nor the court “focused upon the relevant intent” of the
applicable zoning ordinance; (2) the board and the court relied upon the
existence of a nearby self-storage facility in a different zoning district as a
relevant factor in their analyses; and (3) the record does not otherwise support
the board’s finding.

As a general matter, a variance is not contrary to the public interest or
inconsistent with the spirit of the ordinance merely because it conflicts with
the terms of the ordinance; instead, the variance must “violate the ordinance’s
basic zoning objectives.” Harborside Assocs. v. Parade Residence Hotel, 162
N.H. 508, 514 (2011) (quotation omitted). We have recognized that granting a
variance would violate an ordinance’s basic zoning objectives when it would
either alter the essential character of the neighborhood or threaten the public
health, safety or welfare. See id. Here, the court found that the record
supports the board’s conclusion that the variance will not alter the essential
character of the neighborhood based upon evidence that the property’s pre-
existing use and the trust’s proposed uses are similar in nature and evidence
that there are similar commercial properties nearby. Additionally, the court

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determined that the record supports the board’s finding that the variance will
not threaten the public health, safety or welfare based upon a report provided
by the Milford Police Department, a traffic study, and the board’s
determination that the Town of Milford Planning Board has the requisite
expertise to address certain environmental concerns that the board identified
with the trust’s proposal.

The plaintiff also asserts that the court erred by affirming the board’s
finding that the variance will not cause surrounding property values to
diminish. See RSA 674:33, I(b)(4) (2016). The court found that the board’s
decision was supported by an expert appraiser’s report, the aforementioned
traffic study, and the board members’ own familiarity with the area. See
Vannah v. Bedford, 111 N.H. 105, 108 (1971) (“In arriving at a decision, the
members of the board can consider their own knowledge concerning such
factors as traffic conditions, surrounding uses, etc., resulting from their
familiarity with the area involved.”), overruled on other grounds by Cook v.
Town of Sanborton, 118 N.H. 668, 671 (1978).

The plaintiff further claims that the court erred by upholding the board’s
finding that denying the variance would result in an unnecessary hardship.
See RSA 674:33, I(b)(5) (2016). To establish unnecessary hardship, a variance
applicant generally must show that “owing to special conditions of the property
that distinguish it from other properties in the area . . . the proposed use is a
reasonable one.” RSA 674:33, I(b)(5)(A). Here, the plaintiff maintains that the
court erred because the record does not support the finding that a link exists
between any special conditions of the property and the reasonableness of the
trust’s proposed uses. The plaintiff also suggests that the court erred by
relying upon the historical non-conforming use of the commercial garage on the
property as a special condition of the property. The court found that the record
supports the board’s finding that the trust’s proposal is reasonable in light of
special conditions of the property, pointing to the commercial garage that
already exists on the property and its “history of use” and to evidence that a
wetland and an easement on the property restrict the trust’s ability to use and
develop the land in a manner that complies with the zoning ordinance.

Finally, the plaintiff argues that the court erred by upholding the board’s
finding that the variance will work substantial justice. See RSA 674:33, I(b)(3)
(2016). “Perhaps the only guiding rule [as to this factor] is that any loss to the
individual that is not outweighed by a gain to the general public is an
injustice.” Farrar v. City of Keene, 158 N.H. 684, 692 (2009) (quotation
omitted). “[W]hether the proposed use is consistent with the area’s present
use” is also a factor. Id. The plaintiff asserts that the court erred because: (1)
the record is incomplete with respect to the proposal’s impact upon the health,
safety and welfare of the public and upon the environment; (2) the board and
the court failed to consider that the trust could use the existing garage as an
office building pursuant to a special exception; and (3) the board and the court

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failed to consider that the trust “presumably knew” that it had purchased a
property with a non-conforming use. The court determined that the record
supports the board’s substantial justice finding based upon evidence that
denying the variance would prohibit the trust from using the property’s existing
garage for its intended purpose and evidence that the trust’s proposal will have
less of an impact on the public than the pre-existing use.

As the appealing party, the plaintiff has the burden of demonstrating
reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014). Based upon
our review of the superior court’s well-reasoned order, the plaintiff’s challenges
to it, the relevant law, and the record submitted on appeal, we conclude that
the plaintiff has not demonstrated reversible error. See id.

Affirmed.

DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.

Eileen Fox,
Clerk

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