Garry R. Lane & a. v. City of Dover & a.

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0629, Garry R. Lane & a. v. City of Dover
& a., the court on April 4, 2025, issued the following order:

The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(3). The plaintiffs, Garry R. Lane and Marcia Lane, appeal an
order of the Superior Court (Howard, J.) upholding a decision of the zoning
board of adjustment (ZBA) for the City of Dover to grant an equitable waiver of
zoning dimension requirements to the plaintiffs’ abutters, Dana Brown and
Sherri Brown (applicants). See RSA 674:33-a (2016). The plaintiffs argue that
the trial court erred by upholding the ZBA’s finding that the applicants
“substantially completed” the structure at issue for purposes of RSA 674:33-a,
I(a), one of the statutory elements the ZBA must find to grant an equitable
waiver. We affirm.

The following facts are drawn from the trial court order. The plaintiffs
and the applicants own abutting properties. In 2022, the applicants obtained a
building permit to construct a garage 12 feet from the property lines. Although
the applicable setback for accessory buildings within the city’s residential
districts is generally 10 feet, the applicable setback for the applicants’ property
— located in an open space subdivision — is 20 feet.

The applicants completed the site work, poured a foundation, and
constructed frost walls, which were later inspected and approved by the city’s
building inspector. Following the inspector’s approval, the applicants
constructed and sheathed the walls of the garage and began installation of roof
trusses. Thereafter, on February 4, 2022, the plaintiffs complained to the city
about a suspected violation. The city met with the applicants on February 7
and issued a stop-work order the following week. The applicants ceased all
construction on February 7. As of the stop-work order, the applicants had
spent approximately $46,000 to construct the garage and they represented to
the ZBA that it was approximately 75% complete.

The applicants subsequently applied for an equitable waiver pursuant to
RSA 674:33-a to allow the garage to remain in its approved location. The ZBA
unanimously granted the equitable waiver, finding that all four of the required
criteria were met. The ZBA denied the plaintiffs’ request for rehearing. The
plaintiffs then appealed to the superior court, the central issue being whether
there was “substantial completion” under RSA 674:33-a. The trial court found
that the relevant date to “assess the completion of the structure is February 7,
2022” and that the ZBA had ample evidence to find that the garage was
substantially complete as of that date. The trial court thus affirmed the
decision of the ZBA. This appeal followed.

Judicial review in zoning cases is limited. Dietz v. Town of Tuftonboro,
171 N.H. 614, 618 (2019). The ZBA’s findings of fact are deemed prima facie
lawful and reasonable, and its decision will not be set aside by the trial court
absent errors of law, unless the court is persuaded, by the balance of
probabilities on the evidence before it, that the decision is unreasonable. See
id.; RSA 677:6 (2016). The trial court’s task is not to determine whether it
agrees with the ZBA’s findings, but whether there is evidence upon which the
findings reasonably could have been based. Dietz, 171 N.H. at 618. We, in
turn, will uphold the trial court’s decision unless it is unsupported by the
evidence or legally erroneous. Id. We review statutory interpretation questions
de novo. Id.

In matters of statutory interpretation, we look first to the language of the
statute itself, and whenever possible, construe statutory language according to
its plain and ordinary meaning. Id. at 619. We construe all parts of a statute
together to effectuate its overall purpose and avoid an absurd or unjust result,
and do not consider individual statutory words or phrases in isolation, but
within the context of the statute as a whole. Id. This construction enables us
to interpret statutory language in light of the policy or purpose sought to be
advanced by the statutory scheme. Id.

RSA 674:33-a, I, lists the required findings that the ZBA must make in
order to grant an equitable waiver. The parties do not dispute that only the
first prong of the statute is at issue in this appeal. The relevant provision of
RSA 674:33-a, I, provides:

When a lot or other division of land, or structure thereupon,
is discovered to be in violation of a physical layout or dimensional
requirement imposed by a zoning ordinance enacted pursuant to
RSA 674:16, the [ZBA] shall, upon application by and with the
burden of proof on the property owner, grant an equitable waiver
from the requirement, if and only if the [ZBA] makes all of the
following findings:

(a) That the violation was not noticed or discovered by any
owner, former owner, owner’s agent or representative, or municipal
official, until after a structure in violation had been substantially
completed, or until after a lot or other division of land in violation
had been subdivided by conveyance to a bona fide purchaser for
value;

RSA 674:33-a, I (emphasis added).

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 In upholding the ZBA’s decision to grant an equitable waiver, the trial
court relied upon common dictionary definitions of “substantially” and
“completed,” and in part upon our analysis in AWL Power v. City of Rochester,
148 N.H. 603 (2002), to conclude that the phrase “substantially completed” in
RSA 674:33-a, I(a) “means having largely, but not all, necessary components.”
The plaintiffs argue that the trial court should have instead relied upon the
definition of “substantial completion” in the statute of repose for construction
defect claims, see RSA 508:4-b, II (2010), and upon other authorities
discussing the doctrine of “substantial completion” within the context of
construction contracts, to rule that a structure is not “substantially completed”
under RSA 674:33-a, I(a) unless it is “ready to be used for its intended
purpose.” Because the applicants’ garage was not sufficiently completed to be
used for its intended purpose, the plaintiffs argue that it was not “substantially
completed” for purposes of RSA 674:33-a, I(a). We disagree.

By its express language, the evident purpose of RSA 674:33-a, I, is to
empower a ZBA to grant an equitable remedy to a landowner who has
detrimentally relied, in good faith, upon certain mistakes, including a mistake
by a municipal official regarding the applicability of a zoning dimensional
requirement in granting a permit. See RSA 674:33-a, I(b). That is precisely
what occurred in this case.

In AWL Power, we reversed a superior court decision that a developer
had not engaged in “substantial construction” of a previously approved project
so as to acquire a vested right in the project’s completion because the developer
had expended only a fraction of the total projected costs for the overall project.
See AWL Power, 148 N.H. at 604-08. We observed that the trial court’s focus
upon the percentage of the project completed “resemble[d] the ‘substantial
completion’ test used to determine whether a contract is performed.” Id. at
606. This analysis was improper, we reasoned, because “vested rights are not
based upon a contract theory,” but rather “stem from the developer’s good faith
reliance upon the absence of applicable zoning regulations.” Id. at 606-07. We
concluded that “[t]he correct standard for ‘substantial construction’ vesting
considers not only construction measured against the entire plan, but also
whether the amount of completed construction is per se substantial in amount,
value or worth. Whether or not construction is substantial thus depends upon
the facts and circumstances of each case.” Id. at 608.

The rationale underlying the “substantial construction” standard in
vested rights cases is protecting a property owner’s good faith detrimental
reliance upon the absence of a zoning regulation that would prohibit a project.
Id. at 606. We agree with the city and the applicants that this rationale is
analogous to the purpose of the equitable waiver statute — protecting a
property owner’s good faith detrimental reliance upon a municipal official’s
error in granting a permit. Just as borrowing the “substantial completion” test
from contract law would have undermined the rationale for vested rights in

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AWL Power, importing the same contract law doctrine to interpret the words
“substantially completed” in RSA 674:33-a, I(a) would likewise contravene the
overall equitable purpose of the statute.

Accordingly, when the words “substantially completed” are considered
within their overall statutory context, see Dietz, 171 N.H. at 619, we conclude
that the trial court did not err by interpreting them, in accordance with
common dictionary definitions, to mean, “having largely, but not all, necessary
components.” Nor did the trial court err by determining that there was
evidence before the ZBA upon which its determination that the applicants had
substantially completed the garage could reasonably have been based. See
Dietz, 171 N.H. at 618. Because the trial court’s decision was neither
unsupported by the evidence nor legally erroneous, we uphold it. See id. We
have considered the plaintiffs’ remaining arguments, and have concluded that
they do not warrant further discussion. See Vogel v. Vogel, 137 N.H. 321, 322
(1993).

Affirmed.

MACDONALD, C.J., and BASSETT, DONOVAN, and COUNTWAY, JJ.,
concurred.

Timothy A. Gudas,
Clerk

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