Scott Foley & a. v. Town of Atkinson

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2024-0151, Scott Foley & a. v. Town of
Atkinson, the court on May 15, 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, Scott Foley and Megan Duffy, appeal an order
of the Superior Court (Schulman, J.) affirming a decision of the zoning board of
adjustment (ZBA) for the defendant, the Town of Atkinson, granting an
applicant’s request to modify a variance condition relating to the construction
of a driveway on the applicant’s property. We affirm.

The plaintiffs argue that the trial court erred because: (1) RSA 674:33
(Supp. 2024) requires the ZBA to consider the RSA 674:33, I(a)(2) variance
factors when deciding whether to modify a variance condition; (2) the court
concluded that the requirement for modification or elimination of a variance
condition is either that the condition is no longer necessary to observe the
spirit of the ordinance or that the modified condition also observes the spirit of
the ordinance; and (3) it concluded that a substantial change in circumstances
did not require the ZBA to analyze the statutory variance factors.

As the appealing parties, the plaintiffs have the burden of demonstrating
reversible error. Gallo v. Traina, 166 N.H. 737, 740 (2014). 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 reversible error. See id.; Sup. Ct. R. 25(8).

Affirmed.

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

Timothy A. Gudas,
Clerk