Avanru Development Group, Ltd. v. Town of Swanzey

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0015, Avanru Development Group, Ltd.
v. Town of Swanzey, the court on August 16, 2022, issued the
following order:

The plaintiff, Avanru Development Group, Ltd. (Avanru), seeks to build a
76-unit multi-family dwelling on a parcel within the Town of Swanzey’s
Business District. To do so, it needs to obtain a special exception under the
Town’s zoning ordinance. The Zoning Board of Adjustment (ZBA) denied
Avanru’s request. The Superior Court (Ruoff, J.) vacated the ZBA’s denial and
remanded for further proceedings. The Town now appeals. Avanru cross-
appeals the trial court’s denial of its request for a builder’s remedy.

This case presents three issues—whether the trial court erred: (1) in its
construction of Swanzey, N.H., Zoning Ordinance (hereinafter, Ordinance)
§ XII(C)(2)(a); (2) in its construction of Ordinance § XII(C)(2)(b); and (3) in failing
to grant Avanru a builder’s remedy. The court is unanimous that the trial
court did not err with respect to the denial of the builder’s remedy and its
interpretation of Ordinance § XII(C)(2)(b). The court, however, is equally
divided as to whether the trial court erred in its interpretation of Ordinance
§ XII(C)(2)(a). Accordingly, the trial court’s order is affirmed. See PK’s
Landscaping, Inc. v. N.E. Telephone Co., 128 N.H. 753, 758 (1986) (affirming
order granting summary judgment by an equally divided court); Katherine
Frederick v. New Hampshire Department of Health and Human Services, No.
2019-0156 (N.H. March 12, 2021) (non-precedential order) (affirming the trial
court’s dismissal of a case as barred by the statute of limitations by an equally
divided court).

As an initial matter, we address Avanru’s cross-appeal. In an effort to
avoid further proceedings before the ZBA, Avanru asks us to reverse the trial
court’s denial of its request for a builder’s remedy. A builder’s remedy is the
granting of a right to complete a proposed project. Cmty. Res. for Justice v.
City of Manchester, 157 N.H. 152, 155 (2008). This is an extraordinary
remedy, the denial of which we review for an unsustainable exercise of
discretion. Id.

As we will subsequently discuss, in considering Avanru’s special
exception application, the ZBA conducted an improper analysis. In remanding
to the ZBA, the trial court determined that the proper remedy was for the ZBA
to reconsider the application in a manner consistent with its order. As the
granting of a builder’s remedy is within the discretion of the trial court, and
Avanru has not demonstrated that the trial court’s order constitutes an
unsustainable exercise of discretion, we deny the relief requested in Avanru’s
cross-appeal. See id.; Soares v. Town of Atkinson, 129 N.H. 313, 316 (1987).

We now turn to the issues that involve the interpretation of the Swanzey
Zoning Ordinance. The interpretation of a zoning ordinance is a question of
law, which we review de novo. Batchelder v. Town of Plymouth Zoning Bd. of
Adjustment, 160 N.H. 253, 256 (2010). The traditional rules of statutory
construction govern our review. Id. Therefore, we construe the words and
phrases of an ordinance according to their common and ordinary usage. Id.
We determine the meaning of a zoning ordinance from its construction as a
whole, not by construing isolated words and phrases. Id. at 257. We will not
guess what the drafters of the ordinance might have intended, or add words
that they did not see fit to include. Id. at 256-57.

The Ordinance divides the Town into districts and defines permitted uses
within each district. The Business District “is intended to provide for the
development of commercial uses that are oriented to the traveling public or are
traffic generators of such size as to be more properly located on a highly
accessible highway network.” Ordinance § II(A)(4). Section V of the Ordinance
provides that, in the Business District, “no buildings or premises shall be
erected, altered or used and no land shall be used for any purpose except” for
fourteen specific “uses permitted.” Ordinance § V(B)(1). Among the permitted
uses are the following: a hotel, motel, inn or bed and breakfast facility, a
nursing home, a restaurant, a warehouse, and a function hall. Id. In addition,
six uses are permitted only if the ZBA grants a special exception. One of these
uses is the multi-family dwelling use. Ordinance § V(B)(2). Thus, the
Ordinance creates two tiers of uses that are permitted in the Business District:
the fourteen uses permitted as of right and the six uses conditioned on the
grant of a special exception. Ordinance § V(B).

Section XII of the Ordinance provides that the “[ZBA] shall have the
power to hear and decide Special Exceptions to the terms of this Ordinance,
and in doing so, may grant approval in appropriate cases and subject to
appropriate conditions and safeguards for the protection of the public health,
safety, and welfare.” Ordinance § XII(C)(2). In order to receive a special
exception, the applicant has the burden of presenting sufficient evidence to
support a favorable finding on each of the specified requirements. McKibbin v.
City of Lebanon, 149 N.H. 59, 61 (2003). The Ordinance establishes the
following requirements for approval of a special exception:

a. The proposed use is similar to one or more of the uses already
authorized in that district and is in an appropriate location for such a
use; b. Such approval would not reduce the value of any property within
the district, nor otherwise be injurious, obnoxious, or offensive to the

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 neighborhood; c. There will be no nuisance or serious hazard to vehicles
or pedestrians; d. Adequate and appropriate facilities will be provided for
the proper operation of the proposed use.
Ordinance § XII(C)(2).

The ZBA found that the application did not satisfy the requirements of
subsection (a) or (b). We will address subsection (b) first because the court is
unanimous on this issue. We will then address subsection (a), on which the
court is equally divided.

Subsection (b) requires that Avanru’s proposed project “would not reduce
the value of any property within the district, nor otherwise be injurious,
obnoxious, or offensive to the neighborhood.” With respect to this requirement,
a majority of the ZBA determined that the project was “offensive to the
neighborhood,” and, therefore, that Avanru failed to satisfy the requirement.

The superior court concluded that, as used in the Ordinance, “offensive”
refers to the proposed use of the property, not the physical structure of the
proposed project, and that the ZBA, by relying on public comments, improperly
based its conclusions on the project’s aesthetics. Additionally, the trial court
found that, although the ZBA must give public comments some weight, here
the ZBA “erred in judging the application solely on its popularity.”

On appeal, the Town argues that the trial court erred when it ruled that
the ZBA should not take into account the physical characteristics and
aesthetics of the project. Avanru counters that “offensive” cannot mean that
the project is generally unpopular. We agree that equating “offensive” with
“unpopular” is not consonant with the overall design and purpose of the
Ordinance. See Batchelder, 160 N.H. at 256; Bethlehem v. Robie, 111 N.H.
186, 188 (1971) (“[T]he zoning ordinance was designed to protect
neighborhoods and land values, and the granting or denial of a permit is not
dependent upon the consent or objection of present owners of adjoining
property.”). By its terms, the Ordinance deems a multi-family dwelling use in
the Business District to be “essentially desirable,” yet it also requires the
proposed “location must be considered in light of special restrictions or
conditions tailored to fit the unique problems which the use may present.”
Ordinance §§ XII, V(B)(2)(b); see also 3 Sara C. Bronin & Dwight H. Merriam,
Rathkopf’s The Law of Zoning and Planning § 61:6, at 61-17 to 61-18 (4th ed.
2017) (describing the use of special exceptions and noting “because the use in
some places or in some respects might be incompatible with the uses permitted
as of right in the particular district, a special permit with discretionary review
and the ability to condition the approval, is warranted”).

Thus, the Ordinance requires the ZBA to identify the “unique problems”
a multi-family dwelling use may present if constructed in its proposed location

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within the Business District and, whether in light of those “unique problems,”
the second requirement is met. Ordinance § XIII; see also Bronin & Merriam,
supra § 61:6, at 61-17 (“special exception permits are designed to meet
problems that arise where certain uses or activities, although potentially
appropriate for the district, should not be permitted . . . as a matter of right,
because of hazards inherent in the use, incompatibility with surrounding uses,
or limitations of the proposed location”).

The ZBA did not identify or address any unique problems that may be
inherent in, or associated with, the multi-family dwelling use. Absent
consideration of issues associated with this proposed use in the Business
District, the ZBA could not properly determine whether Avanru had established
that the proposed project would “not reduce the value of any property within
the district, nor otherwise be injurious, obnoxious, or offensive to the
neighborhood.” Ordinance § XII(C)(2)(b).

Rather, the ZBA focused its analysis exclusively on the aesthetic issues
that were particular to this specific project. It is, however, undisputed by the
parties that this exact structure could be built as a matter of right if it were a
hotel or nursing home, and that the project complies with all of the design
requirements of the Ordinance, including setback and height. We, therefore,
hold that the superior court correctly concluded that the ZBA erred when it
failed to analyze the implications of the use on the Business District and
instead focused on aesthetic issues, such as landscaping, which are more
properly addressed during the site plan review process before the planning
board. See RSA 674:44 (2016).

Finally, we address the requirements of subsection (a). Subsection (a)
contains two requirements: First, that “[t]he proposed use is similar to one or
more of the uses already authorized in that district . . . .” Ordinance §
XII(C)(2)(a). And second, that the use “is in an appropriate location for such a
use.” Id. As neither the trial court nor the ZBA explicitly addressed whether
the proposed project “is in an appropriate location for such a use,” but rather
addressed only whether the proposed use was “similar to one or more of the
uses already authorized” in the Business District, we will limit our analysis to
the first requirement.

With respect to the first requirement of subsection (a), Avanru argued to
the ZBA that the project was similar to a nursing home or a hotel, which are
permitted uses. However, in reaching its decision, the ZBA compared Avanru’s
proposed project only to multi-family dwelling projects previously granted a
special exception in the Business District, concluding, based on “density and
setbacks and utilization of the land,” that the proposed project was not similar
to the previously approved multi-family dwelling projects in the district. The
superior court concluded that the ZBA erred in considering previously

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approved special exception projects, and that it should have compared
Avanru’s project only to those uses permitted as of right in the Business
District.

On appeal, the Town argues that it was the trial court, rather than the
ZBA, that erred in its interpretation of subsection (a) when it ruled that “uses
already authorized” did not include those uses previously authorized by special
exception. Avanru counters that the trial court’s interpretation was correct;
specifically, that “uses already authorized” means only those uses permitted as
of right in the district.

Justices Hicks and Bassett would reverse the trial court and conclude
that the plain language of the requirement contemplates that the ZBA will
compare the proposed project to uses authorized as of right in the Business
District as well as those uses previously authorized by special exception in the
district. In their view, the phrase “uses already authorized” cannot mean the
same thing as “uses permitted” because had the Town wished to limit the
comparison to only those fourteen uses listed in the Ordinance, it would have
said as much by requiring comparison only to uses “permitted” in the
Ordinance. See City of Concord v. State of N.H., 164 N.H. 130, 141 (2012)
(employing the “well-recognized principle of [statutory] construction that where
the enacting body uses two different words, it generally means two different
things” (quotation omitted)); compare Ordinance § XII(C)(2)(a), with Ordinance §
V(B)(1).

In addition, these justices emphasize that the town chose to use the word
“already” to temporally modify the phrase “uses authorized.” See Oxford
English Dictionary (online ed. last updated June 2022),
https://www.oed.com/view/Entry/5730?redirectedFrom=already#eid).
(defining “already” as “[b]efore the time in question . . .”). The addition of such
a modifier supports construing “uses already authorized” to mean something
different than “permitted uses” because adding the word “already” to modify
only those uses permitted as of right would, in fact, add no meaning at all. By
contrast, the use of the word “already” does add meaning when used to modify
the more encompassing phrase “uses authorized.” Thus, they conclude that
the phrase “uses already authorized” refers to both those uses permitted as of
right in the district, as well as those uses previously authorized in the district
by special exception.

Chief Justice MacDonald and Justice Donovan would affirm the trial
court. These two justices conclude that a construction of subsection (a) that
permits consideration of projects authorized by special exception runs counter
to the purpose of a special exception. A special exception “permits the
inclusion into the zoning pattern of uses considered to be essentially desirable,
but where the nature of the use is such that its location must be considered in
light of special restrictions or conditions tailored to fit the unique problems

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which the use may present.” Ordinance § XIII. A special exception “relates to a
specific use in a specific location.” Id.; see also Peter J. Loughlin, New
Hampshire Practice: Land Use Planning and Zoning § 23.01 (4th ed. 2010)
(noting the term special exception is “actually a bit of a misnomer since the use
is specifically provided for in the ordinance as one to be permitted where the
conditions legislatively prescribed are found and is not an exception to the
ordinance”).

Therefore, in their view, a use authorized by special exception does not
become generally authorized once the ZBA grants a special exception for the
use. Rather, only the “specific use in a specific location” is authorized and the
ZBA must begin its analysis anew for every special exception application. See
Ordinance §§ XII(C)(2), XIII. These justices believe such a location-specific
examination necessarily renders comparisons between special exception
projects immaterial. They are concerned that such comparisons would get ever
more attenuated and meaningless over time. Finally, these justices note that
neither the Town nor Avanru advocated for or offered briefing on the outcome
advocated by the two other justices.

The court, having affirmed the trial court on the first two issues, and
being equally divided regarding the third issue, affirms the order of the trial
court.
Affirmed.

MACDONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,
participated.

Timothy A. Gudas,
Clerk

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