Appeal of Town of East Kingston

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2022-0219, Appeal of Town of East Kingston,
the court on May 22, 2024, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, has considered the oral arguments of the parties, and has
determined to resolve the case by way of this order. See Sup. Ct. R. 20(2). The
petitioner, the Town of East Kingston (Town), appeals an order of the Housing
Appeals Board (HAB) reversing a decision of the Town’s Zoning Board of
Adjustment (ZBA) that denied the application of the respondents, Brian
Graham and Jades Trust, LLC, for several variances. We affirm.

I

The record supports the following facts. The respondents own two
adjacent lots in East Kingston. Graham owns one, and Jades Trust, a limited
liability company managed by Graham, owns the other. The respondents seek
to merge the two lots and construct a home. Neither lot currently contains a
residence, but one lot contains a garage. The lots were created prior to current
size requirements and are located in a neighborhood of small grandfathered
lots. Nearly all of the nearby lots contain homes.

The respondents’ proposal to construct a residence on the merged lot
conflicts with several provisions of the Town’s zoning ordinance. First, the
ordinance requires a minimum lot size of 87,120 square feet, while the merged
lot will total 21,580 square feet. East Kingston, N.H., Zoning Ordinance, art.
IX(A)(2). Second, the ordinance requires 200 feet of frontage, while the merged
lot will have 152.13 feet. Id. art. IX(A)(1). Third, the ordinance requires at least
32,670 square feet of upland soils, while the merged lot will have 11,599
square feet with the remaining area containing wetlands. Id. art. VI(D)(1). And
fourth, the ordinance requires a 50-foot septic setback away from poorly
drained soils, while the project’s proposed septic system will have a setback of
46 feet. Id. art. VI(E)(3).

The respondents applied for variances from these four requirements,
which the ZBA denied over the course of two hearings in June and July 2021.
They also applied for a fifth variance to construct a septic system near their
property boundary, which the ZBA granted. They requested a rehearing, which
the ZBA denied. The respondents then appealed to the HAB.
 The HAB first considered the septic setback variance and held that
request “in abeyance” because the respondents conceded that a septic system
could be constructed to conform with the ordinance. The HAB then reviewed
the other three variance requests, determined that the respondents had
satisfied the criteria in RSA 674:33, and reversed the ZBA’s decision to deny
these variances. The Town filed a motion for rehearing, which the HAB denied.
The Town then brought this appeal.

II

When reviewing a zoning board’s decision, the HAB must uphold the
decision unless there is an error of law or the HAB is persuaded by the balance
of probabilities, on the evidence before it, that the decision was unreasonable.
RSA 679:9, II (Supp. 2023); see RSA 677:6 (2016); see also RSA 679:9, I (Supp.
2023) (appeals shall be consistent with those to the superior court pursuant to
RSA 677:4 (2016) through RSA 677:16 (2016)). The appealing party bears the
burden of proving that the ZBA’s decision was unlawful or unreasonable. RSA
677:6; see also RSA 679:9, I. The HAB must treat the ZBA’s factual findings as
prima facie lawful and reasonable. RSA 677:6; see also RSA 679:9, I. The
HAB’s review is not to determine whether it agrees with the ZBA’s findings, but,
rather, whether there is evidence in the record upon which the ZBA could have
reasonably based its findings. See Appeal of Chichester Commons, 175 N.H.
412, 415-16 (2022).

Our review of the HAB’s decision is governed by RSA chapter 541 (2021).
See RSA 679:15 (Supp. 2023). Accordingly, the HAB’s order will not be set
aside unless we are satisfied, by a clear preponderance of the evidence, that
such order is unjust or unreasonable. See RSA 541:13. The HAB’s factual
findings are “deemed to be prima facie lawful and reasonable.” Id. When
reviewing the HAB’s findings, our task is not to determine whether we would
have found differently or to reweigh the evidence, but, rather, to determine
whether the HAB’s findings are supported by competent evidence in the record.
Appeal of Chichester Commons, 175 N.H. at 416.

To receive a variance under RSA 674:33 (Supp. 2023), an applicant must
meet five criteria: (A) “[t]he variance will not be contrary to the public interest”;
(B) “[t]he spirit of the ordinance is observed”; (C) “[s]ubstantial justice is done”;
(D) “[t]he values of surrounding properties are not diminished”; and (E) “[l]iteral
enforcement of the provisions of the ordinance would result in an unnecessary
hardship.” RSA 674:33, I(a)(2); Vigeant v. Town of Hudson, 151 N.H. 747, 751
(2005). The statute contains two definitions of unnecessary hardship. RSA
674:33, I(b)(1)-(2); Bartlett v. City of Manchester, 164 N.H. 634, 638 (2013).
Under the first definition:

“[U]nnecessary hardship” means that, owing to special conditions
of the property that distinguish it from other properties in the area:
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 (A) No fair and substantial relationship exists between the
general public purposes of the ordinance provision and the
specific application of that provision to the property; and

(B) The proposed use is a reasonable one.

RSA 674:33, I(b)(1). The first definition is similar, but not identical, to the test
that we adopted in Simplex Technologies v. Town of Newington, 145 N.H. 727,
731-32 (2001). Harborside Assocs. v. Parade Residence Hotel, 162 N.H. 508,
513 (2011).

If the variance applicant fails to satisfy this first definition, the second
definition may apply. Under the second definition:

[A]n unnecessary hardship will be deemed to exist if, and only if,
owing to special conditions of the property that distinguish it from
other properties in the area, the property cannot be reasonably
used in strict conformance with the ordinance, and a variance is
therefore necessary to enable a reasonable use of it.

RSA 674:33, I(b)(2). Here, the HAB concluded that the variances
satisfied the first definition of unnecessary hardship and did not consider
the second definition.

The Town makes four arguments on appeal. It asserts that the HAB
erred when it: (1) applied the variance criteria in RSA 674:33; (2) interpreted
RSA 674:39-a, III (Supp. 2023) as permitting the proposed merger; (3) held the
request for a septic setback variance in abeyance; and (4) ordered that the
variances be granted rather than remand to the ZBA for further factual
findings. We address each argument in turn.

A. Variance Criteria

The Town challenges the HAB’s application of the variance criteria in
RSA 674:33. It contends that the HAB erred when it determined that the
requested variances satisfied the unnecessary hardship, spirit of the ordinance,
public interest, and substantial justice factors. We consider the factors
individually and their application to the relevant variances.

1. Unnecessary Hardship

The Town first argues that the HAB erred by finding that the existing
garage is a “special condition[] of the property that distinguish[es] it from other
properties in the area.” RSA 674:33, I(b)(1). The Town asserts that the garage
was the “sole basis” for the HAB’s special condition finding. We, however, do
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not read the HAB’s order to mean that the garage, alone, is a special condition.
Rather, the HAB determined that because there is only a garage without a
residence, the parcel is relatively undeveloped compared to the surrounding
area. The HAB clarified that the merged lot is unique because “it has a non-
conforming use located on it and is the only lot without a residential dwelling.”
(Emphasis added.) The HAB also noted that the merged lot will “be the only lot
of such size in this area without a residential dwelling.” And in their
arguments before the HAB, the respondents focused on the vacant status of
the merged lot.1 Thus, the HAB did not rely on the garage as the sole basis for
its special condition finding.

The Town next contends that the HAB ignored evidence before the ZBA
that the proposed lot is not unique. The Town cites statements from ZBA
members in which they opined that the proposed lot is similar to those nearby.
The record shows, however, that 27 of the 30 lots in this area are developed
with residential structures. Given this evidence, the HAB correctly found that
the vacant lot and the under-developed garage lot, together, are unique when
compared to the surrounding neighborhood.

Next, the Town argues that special conditions under RSA 674:33 must
relate to the specific variances requested, and that the garage is not a special
condition because it “has not caused the need for these variances.” Again, the
garage was not the sole basis for the HAB’s special condition finding.
Regardless, the Town misconstrues the unnecessary hardship test. The test is
not whether the special conditions have caused the need for the variances, as
the Town asserts. Rather, the test is whether, given the special conditions of
the property, (1) the application of the ordinance provision to the property is
necessary to achieve its purpose, and (2) the proposal is a reasonable use of
the property. See RSA 674:33, I(b)(1)(A)-(B). The first part of the test asks
whether the application of the ordinance to the property bears a sufficient
relationship to the ordinance’s purpose. See RSA 674:33, I(b)(1)(A); see also 15
Peter Loughlin, New Hampshire Practice: Land Use Planning and Zoning §
24.16[b], at 413 (2010) (“[I]t needs to be determined whether the general
purpose is fairly and substantially advanced when the restriction is considered
as applied to the specific property considering that property’s unique setting
and environment.”). The second part of the test asks whether the property has
unique characteristics that make the proposal a reasonable use of the
property. RSA 674:33, I(b)(1)(B); see also Harborside Assocs., 162 N.H. at 518.

1 The Town argues that the respondents failed to preserve their special condition argument before

the HAB because they did not assert that the garage is a special condition in their rehearing
request before the ZBA. However, in their request for rehearing, the respondents argued that the
undeveloped nature of the property relative to the surrounding lots is the special condition, not
that the garage itself is unique. The respondents’ special condition argument was therefore
preserved.

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 We conclude that the HAB correctly applied the unnecessary hardship
test for each variance it considered. We begin with the frontage variance,
which the ZBA determined satisfied all variance criteria except for unnecessary
hardship. Minimum frontage requirements generally “are a method of
determining lot size to prevent overcrowding” and “may also reflect a need for
safe access” for emergency vehicles. Hannigan v. City of Concord, 144 N.H. 68,
76 (1999) (quotations omitted). The HAB acknowledged these purposes. Here,
the merged lot would have 152.13 feet of frontage while the ordinance requires
200 feet. East Kingston, N.H., Zoning Ordinance, art. IX(A)(1). The HAB
concluded that applying the frontage requirement to this lot would not advance
the purpose of the ordinance because “[t]here is already a structure on the
merged parcel and a single-family residence will not add to ‘congestion’ in any
meaningful way when viewing the current make-up of this area.” The HAB
noted that “there is no evidence that the lack of frontage creates a safety issue,
nor does it alter the character of the area.” It further reasoned that merger
would actually reduce overcrowding because it would eliminate an existing lot
and increase overall frontage. As acknowledged by members of the ZBA, this
area is “crowded” and “tightly packed.” Preventing the respondents from
building a house by merging two lots does not reduce already “crowded” and
“tightly packed” lots. We agree with the HAB that a strict application of the
frontage requirement here does not further the purposes of the ordinance.
Therefore, this variance request satisfies the first part of the unnecessary
hardship test.

The frontage variance also satisfies the second part of this test, which
ensures that “[t]he proposed use is a reasonable one.” RSA 674:33, I(b)(1)(B).
A “proposed project is presumed to be reasonable if it is a permitted use under
the Town’s applicable zoning ordinance.” Malachy Glen Assocs. v. Town of
Chichester, 155 N.H. 102, 107 (2007) (quotation omitted). Here, residential
use is permitted, and the lots currently do not contain a residence. Moreover,
as the HAB noted, the merger will reduce the existing nonconformities by
increasing total frontage. The proposal will also eliminate a nonconformity by
making the existing garage a legal accessory use. In light of this, the HAB
properly concluded that building a residence on the merged lot is reasonable
and that both parts of the unnecessary hardship test were satisfied.

Turning to the lot size variance, the HAB correctly concluded that this
variance also satisfied the unnecessary hardship test. The HAB explained that
the purpose of the lot size requirement is “to prevent unreasonable congestion
and to safely allow septic systems and water wells.” It then reasoned that the
merger will create a larger lot in an area of small lots and advance the goal of
reducing congestion. We agree with this reasoning. And considering that
neither lot has a house, adding one house to the merged lot would not
unreasonably burden this residential area. The HAB also found that the
purpose of “providing necessary utilities [is] met.” Aside from unsubstantiated
comments made by ZBA members, nothing in the record contradicts this
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finding. We thus agree with the HAB’s determination that the purpose of the
ordinance would not be advanced in this instance. And for the same reasons
that the proposed use is reasonable with regard to the frontage variance, the
HAB correctly determined that the proposed use is reasonable regarding the lot
size variance.2

We next address the upland soils variance. The Town’s ordinance
requires 32,670 square feet of upland soils, whereas the merged lot will contain
11,599 square feet. East Kingston, N.H., Zoning Ordinance, art. VI(D)(1). The
HAB explained that the purpose of the upland soils requirement is to “ensure
sufficient upland area exists on a lot for an approved septic system and water
well if no municipal water or sewer is available.” It noted that despite the lot’s
small size and less than required amount of upland soils, the lot configuration
was “sufficient for a State and Town approved septic system and water well.”
Accordingly, we agree with the HAB that no substantial relationship exists
between the general purpose of the restriction and its application to the
property. And, like the frontage and lot size variances, the HAB correctly ruled
that the proposed use is reasonable.

2. Spirit of the Ordinance and Public Interest

The Town next argues that the lot size and uplands soils variances did
not satisfy the “spirit of the ordinance” and “not contrary to the public interest”
factors. See RSA 674:33, I(a)(2)(A), (B). The requirement that the variance not
be contrary to the public interest is related to the requirement that the
variance be consistent with the spirit of the ordinance. Perreault v. Town of
New Hampton, 171 N.H. 183, 186 (2018). To be contrary to the public interest
and inconsistent with the spirit of the ordinance, the variance must unduly
and in a marked degree conflict with the ordinance such that it violates the
ordinance’s basic zoning objectives. Id. In determining whether granting a
variance violates an ordinance’s basic zoning objectives, we look to, among
other things, whether it would alter the essential character of the locality or
threaten public health, safety, or welfare. Id.

The HAB concluded that granting the lot size and upland soils variances
would neither alter the essential character of the locality nor threaten public
health, safety, or welfare. The Town contends that in doing so, the HAB
improperly weighed and ignored evidence that supports the ZBA’s
determination. The Town cites comments from ZBA members explaining that

2 The dissent asserts that building a residence on the merged lot will worsen crowding and

congestion, and therefore, there is a fair and substantial relationship between the purposes of the
lot size and frontage requirements and the application of those requirements here. We disagree.
In this situation, where nearly all the surrounding lots fail to meet the minimum lot size and
frontage requirements, strict adherence to these requirements does not have any practical effect
on overcrowding or congestion.

6
they believed that the additional residence would overcrowd the neighborhood
and cause public health and safety issues. We agree with the HAB that
granting these variances will not alter the essential character of the locality. As
explained above, this area is already densely developed with small residential
lots such that an additional residence will not alter the essential character of
the area. See Harborside Assocs., 162 N.H. at 515 (evidence that proposed
signs were “in keeping with others” in the area supported finding that they
would not change essential character of the neighborhood).

The Town argues that the ZBA had sufficient evidence to conclude the
proposal would create a threat to the public health, safety, or welfare. The
Town asserts that ZBA members and nearby landowners expressed concerns
over adding an additional septic system in this area, and that the HAB
improperly “determined the concerns were not credible.” The Town emphasizes
that one ZBA member is a septic designer who opined that “add[ing] more
septage to an area that is already going to have a hard time absorbing it all is
in my opinion a health and safety concern.” We disagree that the HAB ignored
this evidence or improperly engaged in a credibility determination. That ZBA
member did not explain what evidence in the record supported this conclusion.
A municipal board is entitled to rely upon its own judgment and experience,
but it may not deny a variance on an ad hoc basis because of vague concerns,
and its decision must be based upon more than the unsubstantiated personal
opinion of its members. See Derry Senior Dev. v. Town of Derry, 157 N.H. 441,
451 (2008). In contrast, the respondents’ septic designer described the system
and explained that it was approved by the Department of Environmental
Services. The ZBA received no other evidence regarding potential health and
safety issues. Here, the proposal meets the Town’s and State’s septic
requirements, which are designed to protect public health, safety, and welfare.
Thus, we agree with the HAB that “unsupported” concerns from ZBA members
are insufficient to establish that granting the lot size and upland soils
variances would cause a threat to the public health or safety.

3. Substantial Justice

We next address the substantial justice factor. The ZBA concluded that
the upland soils variance did not satisfy this factor. “Perhaps the only guiding
rule on this factor is that any loss to the individual that is not outweighed by a
gain to the general public is an injustice.” Harborside Assocs., 162 N.H. at 515
(quotation omitted). We also look at whether the proposed development is
consistent with the area’s present use. Id.

The Town contends that “the wetland variances raise significant health,
welfare, and safety concerns,” and the public benefit of preventing these issues
outweighs any loss to the respondents. As explained above, however, there is
no evidence of threats to public health, safety, or welfare apart from
unsupported comments from ZBA members and neighbors about existing
7
conditions in the area. In contrast, the respondents will suffer a significant
loss if they cannot develop these properties. Moreover, the proposed
development is consistent with the residential character of the area. Thus, the
upland soils variance satisfies the substantial justice factor.

B. RSA 674:39-a, III

The Town next argues that the HAB incorrectly interpreted the lot merger
statute, RSA 674:39-a (Supp. 2023). The Town contends that the proposed
merger violates RSA 674:39-a, III, and that the ZBA properly considered the
impact of the statute on the respondents’ variance requests. RSA 674:39-a, III
provides that “[n]o merger shall be approved that would create a violation of
then-current ordinances or regulations.” RSA 674:39-a, III. Here, the ZBA
questioned whether the lots could be merged given that the merged lot would
violate the Town’s zoning ordinance. The HAB rejected this as a basis for
denying the variances, reasoning that the statute was not intended to prevent
merger here because the proposal “reduces zoning non-conformity and creates
no additional non-conformities.”

We agree with the HAB’s interpretation of RSA 674:39-a, III. As the
respondents correctly assert, the merger here does not “create” any violations
of the Town’s zoning ordinance. RSA 674:39-a, III; see Oxford English
Dictionary,
https://www.oed.com/dictionary/create_v?tab=meaning_and_use#8012857
(last visited Mar. 18, 2024) (defining “create” as “[t]o bring into being, cause to
exist . . . to produce where nothing was before” (emphasis added)). The
violations at issue already exist in the two lots that the respondents seek to
merge. By merging these smaller nonconforming lots, the proposal actually
lessens the scope of the current violations. Because the proposal here would
not create a new violation of the Town’s zoning ordinance, RSA 674:39-a, III
does not preclude merger or the requested variances.

C. Abeyance of the Wetlands Setback Variance

The Town argues that the HAB erred when it held the respondents’
wetlands septic setback variance application in abeyance. The Town contends
that because RSA 679:5 grants the HAB only the authority “to hear and affirm,
reverse, or modify, in whole or in part, appeals from final decisions of
municipal boards,” the HAB exceeded its statutory authority. RSA 679:5, I
(Supp. 2023). However, in their brief, the respondents advise that they
withdrew this variance request before the HAB when they conceded that their
septic system could be constructed in a conforming location and that they
therefore do not need a setback variance. As the setback variance is no longer
in controversy, this issue is moot. In the Matter of Routhier & Routhier, 175
N.H. 6, 19 (2022) (“In general, a matter is moot when it no longer presents a

8
justiciable controversy because the issues involved have become academic or
dead.”).

D. Remand to the ZBA

Lastly, the Town contends that to the extent that the ZBA erred, the
correct remedy was remand for further factual findings rather than reversal by
the HAB. The Town relies on Bartlett v. City of Manchester, 164 N.H. 634
(2013). In Bartlett, the trial court vacated a ZBA decision granting a variance
because the variance did not satisfy the criteria in RSA 674:33. Bartlett, 164
N.H. at 638-39. But then, relying on an accessory use theory that was not
presented to the ZBA, the court concluded that the project did not need a
variance. Id. at 639, 642-43. On appeal, we determined that because the ZBA
did not receive evidence or hear arguments regarding accessory use, the trial
court lacked a sufficient factual record to decide the issue. Id. at 642-43. We
concluded that the accessory use issue should have been remanded so the ZBA
could consider it in the first instance. Id. at 642.

This case differs from Bartlett. The ZBA here considered the variance
criteria in the first instance, whereas the ZBA in Bartlett did not have an
opportunity to consider the accessory use issue. Id. at 642-43. Here, the ZBA
received evidence regarding the variance criteria, while the ZBA in Bartlett did
not receive evidence regarding the accessory use issue. Id. Thus, there was a
sufficient factual record here for the HAB to determine that the variance
criteria were satisfied and that the ZBA’s contrary decision was unreasonable.
Therefore, remand is not necessary.

III

We affirm the HAB’s order reversing the ZBA’s denial of the application.

Affirmed.

MACDONALD, C.J., and HANTZ MARCONI, and DONOVAN, JJ.,
concurred; BASSETT, J., concurred in part and dissented in part; HICKS, J.,
sat for oral argument but did not participate in the final vote, see N.H. CONST.
pt. II, art. 78.

Timothy A. Gudas,
Clerk

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 BASSETT, J., concurring in part and dissenting in part. Although I join
much of the majority’s decision, I write separately because I disagree that the
respondents satisfied the unnecessary hardship test for the frontage and lot
size variances. I respectfully dissent from that portion of the majority’s order.

To satisfy the unnecessary hardship factor, an applicant must establish
that “[n]o fair and substantial relationship exists between the general public
purposes of the ordinance provision and the specific application of that
provision to the property.” RSA 674:33, I(b)(1)(A) (Supp. 2023). Here, as the
HAB and the majority correctly recognize, minimum frontage and lot size
requirements are long-established methods for preventing or reducing
overcrowding and congestion. However, the HAB missed the mark when it
reasoned that the merger would actually reduce overcrowding.

Construction of a new residence on a lot with less than 25 percent of the
minimum square footage will only worsen these problems. Combining these
nonconforming lots will undeniably reduce the number of lots — but that does
not mean that building a new residence on the merged lot will in any way
prevent or reduce overcrowding or congestion. In fact, it will do precisely the
opposite. Congestion and crowding will increase. Because a direct and
substantial relationship exists between the purpose of the frontage and lot size
requirements and the specific application of those provisions to the property,
the ZBA reasonably determined that the applicant did not satisfy the first
element of the unnecessary hardship test. Accordingly, I respectfully dissent
from the majority’s conclusion upholding the HAB’s determination that the
applicant satisfied the unnecessary hardship test for the frontage and lot size
variances.

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