Little Tree Education, LLC & a. v. City of Dover

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2019-0665, Little Tree Education, LLC & a. v.
City of Dover, the court on September 18, 2020, 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 petitioners, Little Tree Education, LLC and Coldstream Properties,
LLC, appeal an order of the Superior Court (Howard, J.) upholding a decision of
the zoning board of adjustment (ZBA) for the respondent, the City of Dover
(city), to grant a variance allowing a presently-existing elderly assisted care
home to increase its capacity from twelve beds to twenty-four beds. See RSA
674:33, I (Supp. 2019). By so increasing the capacity of the facility, the
property’s use will be reclassified from an elderly assisted care home to an
assisted living facility. Under the terms of the city’s zoning ordinance, neither
use is permitted within the Hotel/Retail zoning district, where the facility is
located. However, the facility is permitted to operate as an elderly assisted care
home with twelve beds by virtue of two prior variances granted by the ZBA.

To obtain a variance, an applicant is required to prove that literal
enforcement of the zoning ordinance will result in an unnecessary hardship,
and that granting the variance (1) is not contrary to the public interest, (2) is
consistent with the spirit of the zoning ordinance, (3) will accomplish
substantial justice, and (4) will not diminish surrounding property values. RSA
674:33, I(a)(2); see Nine A, LLC v. Town of Chesterfield, 157 N.H. 361, 365
(2008) (observing that applicant bears burden of proving each of the five
conditions required to obtain a variance). In reviewing a decision to grant a
variance, the trial court is required to treat the ZBA’s findings as prima facie
lawful and reasonable, and may not set aside or vacate the decision, except for
errors of law, unless the court is persuaded, by the balance of probabilities on
the evidence before it, that the decision is unreasonable. RSA 677:6 (2016);
see Perreault v. Town of New Hampton, 171 N.H. 183, 186 (2018). The trial
court’s role is not to determine whether it agrees with the ZBA’s findings, but
rather to determine whether there is evidence upon which they reasonably
could have been based. Id. We, in turn, will uphold the trial court’s decision
unless the evidence does not support it or it is legally erroneous. Id.
 The petitioners own and operate a preschool in the Town of Madbury
serviced by a public water supply well that is down-gradient from where the
applicants propose to locate a secondary leach field. In arguing that the ZBA
acted unreasonably, the petitioners emphasize “two key points”: (1) they
presented uncontested evidence from a hydrogeologist that, due to concerns
about water quality, it “may be more appropriate[ to] route” sewerage from the
facility to a city sewer line located a half-mile from the facility; and (2) the
applicants represented that connecting to a private main servicing a property
located across the highway from the facility would cost approximately the same
as installing the leach field. The petitioners further stress that, in all zoning
districts where assisted living facilities are permitted, the city’s zoning
ordinance expressly requires that they be connected to municipal sewer.

The city counters that: (1) the hydrogeologist’s opinion lacked sufficient
certainty; (2) there is no requirement in the Hotel/Retail district to connect to
municipal sewer unless, under a separate sewer ordinance, the property is
within 100 feet of a municipal sewer line; and (3) the applicants discussed only
the possibility of connecting to their neighboring property owner’s private main,
not the cost of directly connecting to the municipal main a half-mile away. The
city further emphasizes that, to address the petitioners’ concerns, the ZBA
conditioned the variance upon approval by the New Hampshire Subsurface
Systems Bureau and the Town of Madbury of the septic system and approval
by the New Hampshire Drinking Water Bureau of the well, and that the city’s
planning board separately required approval of a drug use and disposal plan as
recommended by the hydrogeologist. On appeal, the petitioners challenge the
trial court’s determination that the ZBA’s findings as to each of the five
elements required for the variance were reasonably based on the evidence.

As the appealing parties, the petitioners 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 petitioners’
challenges to it, the relevant law, and the record submitted on appeal, we
conclude that the petitioners have not demonstrated reversible error. See id.

Affirmed.

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

Timothy A. Gudas,
Clerk

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