Laurent Boisvert, II & a. v. Town of Lyndeborough

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0117, Laurent Boisvert, II & a. v. Town of
Lyndeborough, the court on October 25, 2021, 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).
The plaintiffs, Laurent Boisvert, II, and Portable Privies, Inc., appeal the order
of the Superior Court (Messer, J.), affirming the decision of the Zoning Board of
Adjustment (ZBA) for the Town of Lyndeborough (town) upholding the decision
of the town’s code enforcement officer (CEO) to deny their application to
operate a portable toilet business as a home business. They argue that the
court erred in: (1) upholding the ZBA’s decision to apply the 2018 ordinance;
(2) finding that permissible home business activities do not include outdoor
cleaning and repair of portable toilets; and (3) concluding that the business is
not “incidental and secondary” to the property’s residential use. We affirm.

Judicial review in zoning cases is limited. Bartlett v. City of Manchester,
164 N.H. 634, 639 (2013). The superior court must treat all factual findings of
the ZBA as prima facie lawful and reasonable, and may not set aside or vacate
the ZBA’s 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. Id.; see RSA 677:6 (2016). The superior court does not
determine whether it agrees with the ZBA’s findings, but whether there is
evidence upon which they could have been reasonably based. Dartmouth
Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743, 750 (2017). In turn,
we will uphold the superior court’s decision unless the evidence does not
support it or it is legally erroneous. Harborside Assocs. v. Parade Residence
Hotel, 162 N.H. 508, 512 (2011).

Boisvert operates Portable Privies, Inc., a portable toilet business, from
an office in his home. The business owns approximately eighty portable toilets,
and at any given time, up to fifty or more toilets are located at customer sites.
The remainder are stored on the property approximately 300 feet from the
road, behind a farmhouse and beyond public view. Some of the toilets are
stored in trailers in the same area of the property. A commercial tank truck
transports toilets to and from customer sites and waste to a treatment plant.

The tank truck holds up to four toilets. Occasionally, the business uses
a utility trailer to transport additional toilets. The truck, and occasionally the
trailer, is parked in the driveway when not in use. The removal of waste and
the disinfecting of the toilets takes place at customer sites. Additional activity
on Boisvert’s property includes pressure washing toilets and performing minor
repairs. On March 22, 2018, the CEO denied the plaintiffs’ home business
application, and on September 13, 2018, the ZBA upheld the CEO’s decision.

The plaintiffs first argue that the superior court erred in upholding the
ZBA’s decision to apply the 2018 ordinance, given that the CEO’s decision was
based upon the 2017 ordinance. “If a zoning ordinance is amended during the
period of time that an appeal is pending from the original or earlier ordinance,
and assuming no bad faith or intent to delay on the part of the rezoning
authority, the time of decision rule, which is followed in a majority of
jurisdictions, provides that a reviewing court should analyze an appeal based
on the zoning amendment then currently in effect.” McGovern v. City of
Manchester, 130 N.H. 628, 631 (1988), disapproved of on other grounds by
Blue Jay Realty Trust v. City of Franklin, 132 N.H. 502, 513 (1989). “[W]here,
prior to a final adjudication in an action challenging a zoning classification, a
zoning authority properly, and not in bad faith or with an intent to delay,
amends the zoning ordinance in effect over the particular parcel of land that is
the subject of the challenge, the time of decision rule is to be applied and the
case decided on the basis of the ordinance currently in effect.” Id.

The superior court ruled that the ZBA correctly applied the “time of
decision” rule, finding that the town did not act in bad faith. The record
supports this finding. Although the town misplaced the plaintiffs’ application,
which delayed the CEO’s decision, nothing in the record suggests that the
delay was intentional, or that the ordinance changes were in response to the
application. Moreover, we agree with the court that “the relevant
language . . . in the 2017 and 2018 ordinances does not constitute such a
difference as would lead to a different result.” Accordingly, the court did not
err in affirming the decision to apply the 2018 ordinance. See McGovern, 130
N.H. at 631.

The plaintiffs next argue that the superior court erred in affirming the
ZBA’s decision that the home business provisions in the ordinance do not allow
for outdoor cleaning and repair of portable toilets on the property. The
ordinance requires that the home business activity take place “within a
residence or an accessory building,” Lyndeborough, N.H., Zoning Ordinance
§ 1200(A)(2) (2018), and that “[e]xterior storage of materials and equipment
must be screened from view from any public road or abutting property,” id. at
§ 1200(C)(5). The superior court concluded that the plaintiff’s business, which
involves the outdoor cleaning and repair of portable toilets, is not allowed
under these provisions. The plaintiff argues that not all business activity must
take place within a residence or accessory building, and that the outdoor
cleaning and repair of portable toilets is merely incidental to the “[e]xterior
storage of materials and equipment.” We conclude that the evidence supports
the superior court’s decision. See Harborside Assocs., 162 N.H. at 512.

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 The plaintiffs next argue that the superior court erred in affirming the
decision that the portable toilet business is not “incidental and secondary to
the residential use of the dwelling unit.” See Ordinance § 1200(A)(2). The
plaintiffs argue that the business is incidental and secondary to the residential
use of the dwelling unit because “[o]nly a fraction of an acre is dedicated to the
storage of portable toilets at the [p]roperty, and except for the truck and trailer
with their occasional cargo parked in the driveway, the business is completely
out of sight, has little if any environmental impact . . . and generates no noise
or odor or other annoyances for its neighbors and abutters.” We conclude that
the record supports the superior court’s conclusion that, with the storage of up
to thirty or more portable toilets on the property, “[t]he size of the business
operation alone tips in favor of finding [the business use] equal to or even
greater than the residential use of [the plaintiffs’] property.” See Harborside
Assocs., 162 N.H. at 512.

Affirmed.

MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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