Dean E. Wilber v. City of Concord

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0194, Dean E. Wilber v. City of Concord,
the court on January 31, 2020, issued the following order:

Having considered the plaintiff’s brief, the defendant’s memorandum of
law, and the record submitted on appeal, we conclude that oral argument is
unnecessary in this case. See Sup. Ct. R. 18(1). We affirm.

The plaintiff, Dean E. Wilber, appeals an order of the Superior Court
(Kissinger, J.) upholding a decision of the City of Concord Zoning Board of
Adjustment (ZBA) to grant an application for a variance. See RSA 674:33,
I(a)(2) (Supp. 2019). As a result of the variance, the applicant, Nancy Gualtieri,
will be allowed to build an addition onto her residence, one corner of which will
create a triangular-shaped encroachment on a forty-foot setback that will, at
its maximum point, extend eleven feet into the setback. On appeal, the
plaintiff argues that, as a matter of law, the applicant failed to establish any of
the five elements she was required to prove in order to obtain the variance. See
id. He further argues that, in granting the application, the ZBA improperly
considered the fact that the applicant had already poured a foundation for the
project.

We will uphold the trial court’s decision unless it is unsupported by the
evidence or legally erroneous. Rochester City Council v. Rochester Zoning Bd.
of Adjustment, 171 N.H. 271, 275 (2018). 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.

As the appealing party, the plaintiff has 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 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.

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

Timothy A. Gudas,
Clerk

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