Sally Hirsh-Dickinson & a. v. City of Concord

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0069, Sally Hirsh-Dickinson & a. v. City of
Concord, the court on September 16, 2019, 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, Sally Hirsh-Dickinson, Spencer Dickinson, and Donna
Crisp Duclos, appeal an order of the Superior Court (McNamara, J.) upholding
a decision of the City of Concord Zoning Board of Adjustment (ZBA) to grant
variances from applicable side-setback and maximum lot-coverage
requirements, as well as from other dimensional requirements that apply to the
raising of livestock within the relevant zoning district. As a result of the
variances, the applicants, Robert Morrill and Sherri Morrill, trustees of the
Robert D. Morrill and Sherri A. Morrill Revocable Trust, and Morrill Farm
Dairy, LLC, will be allowed to expand a nonconforming dairy barn that has
been in existence since 1969 upon a farm that has been in operation since
1925. On appeal, the plaintiffs argue that the trial court erred by upholding
the following procedures employed by the ZBA at its hearing: (1) the ZBA’s
failure to grant the plaintiffs an opportunity for surrebuttal after allowing the
applicants to respond to concerns raised by the plaintiffs at the hearing; (2) the
ZBA’s decision to deliberate, and to vote upon, all four variance requests
through a single motion, rather than individually; and (3) the ZBA’s failure to
render specific findings of fact as to each of the five statutory criteria for a
variance. The plaintiffs further challenge the trial court’s determination that
the ZBA reasonably found that the applicants had met their burden to prove
each of the five statutory criteria for granting the variances.

A ZBA, like any administrative board, has broad discretion to determine
how to conduct the proceedings before it. See Appeal of Morin, 140 N.H. 515,
517 (1995). A ZBA decision to grant a variance request carries with it implied
findings that each statutory requirement for granting the variance exists. See
Rochester City Council v. Rochester Zoning Bd. of Adjustment, 171 N.H. 271,
276 (2018). “Although disclosure of specific findings of fact by a board of
adjustment may often facilitate judicial review, the absence of findings, at least
where there is no request therefor, is not in and of itself error.” Id. (quotation
omitted). To grant the variance requests in this case, the ZBA was required to
find, as to each variance request, that: (1) the variance is not contrary to the
public interest; (2) the variance is consistent with the spirit of the zoning
ordinance; (3) substantial justice is done; (4) surrounding property values are
not diminished; and (5) literal enforcement of the zoning ordinance will result
in unnecessary hardship. RSA 674:33, I(b) (2016) (amended 2018).

We will uphold the trial court’s decision unless it is unsupported by the
evidence or legally erroneous. Rochester City Council, 171 N.H. at 275. For its
part, the trial court’s review of the ZBA’s decision is limited to determining
whether, on the balance of the probabilities, the decision was unlawful or
unreasonable. Id. To the extent the ZBA made findings of fact on questions
properly before the trial court, the findings are prima facie lawful and
reasonable. Id.; see RSA 677:6 (2016). The trial court’s task is not to
determine whether it agrees with the ZBA’s findings, but to determine whether
there is evidence on which the ZBA’s findings reasonably could have been
based. Rochester City Council, 171 N.H. at 275. In reviewing a ZBA’s decision,
the trial court does not act as a “super zoning board.” Id.

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 trial 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.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Eileen Fox,
Clerk

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