Clayton Alexander & a. v. City of Nashua

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2021-0232, Clayton Alexander & a. v. City of
Nashua, the court on February 18, 2022, issued the following
order:

Having considered the brief, memorandum of law, and record submitted on
appeal, we conclude that oral argument is unnecessary in this case. See Sup. Ct.
R. 18(1). The plaintiffs, Clayton and Georgette Alexander, appeal an order of the
Superior Court (Temple, J.) upholding decisions of the City of Nashua Zoning
Board of Adjustment (ZBA) and Planning Board in connection with a proposed
dog daycare business. We affirm.

A brief summary of the case follows. The applicant proposed to open a dog
daycare business called “Zoomies” at 1 Hardy Street in Nashua. The property is
located in the “Local Business” zoning district, and, although “animal pet
services” are permitted as a matter of right within that zone, city planning staff
directed the applicant to apply for a variance in order to have an outdoor area for
the dogs. The city planning staff reached this determination based on the fact
that the zoning ordinance identifies an “[o]utdoor display of retail goods, wares
and merchandise” as a “permitted accessory use” within certain zoning districts,
but not within the local business district. Subsequently, the ZBA approved the
variance. However, after the plaintiffs and other abutters who opposed the
application moved for rehearing, the ZBA effectively reconsidered its decision and
determined that it had erred. The ZBA concluded, as the applicant, the plaintiffs,
and other abutters had urged, that the “outdoor display” provision did not apply
to an outdoor area for dogs that is part of a dog daycare business. The ZBA also
determined that it should not have heard the case in the first instance because
the proposed use was permitted as a matter of right, and, therefore, it denied the
plaintiffs’ and abutters’ motions for rehearing.

After the ZBA’s decision that the proposed use was permitted, the planning
board granted conditional site plan approval. The plaintiffs sought review of that
decision by the ZBA, which denied the request. Thereafter, on appeal to the
superior court, the court upheld the ZBA and planning board decisions. This
appeal followed.

On appeal, the plaintiffs advance numerous challenges to the trial court’s
order. However, as the appealing party, the plaintiffs have the burden of
demonstrating that the trial court committed reversible error. 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 that the trial court committed reversible error.

Affirmed.

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

Timothy A. Gudas,
Clerk

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