Appeal of Murray

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Housing Appeals Board
Case No. 2025-0019
Citation: Appeal of Murray, 2026 N.H. 26

APPEAL OF CHRISTINE MURRAY
(New Hampshire Housing Appeals Board)

Argued: January 8, 2026
Opinion Issued: July 15, 2026

Yasenka Law PLLC, of Portsmouth (Kristin M. Yasenka, on the brief and
orally), and MacMillan Law Offices, of Bradford, Massachusetts (Thomas K.
MacMillan on the brief), for the petitioner.

Beaumont & Campbell Prof. Ass’n., of Salem (Bernard H. Campbell on
the brief and orally), for the respondents.

Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Salem (Diane M.
Gorrow), for the Town of Hampstead Zoning Board of Adjustment, filed no brief.

GOULD, J.

¶1 The petitioner, Christine Murray (the abutter), appeals an order of
the Housing Appeals Board (HAB) affirming a decision of the Town of
Hampstead Zoning Board of Adjustment (ZBA) granting a special exception to

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the respondents, Beth and Scott Spicer (the applicants), permitting them to
build a second-floor addition to their lakefront cottage across the road from the
abutter’s home. We reverse and remand.

¶2 The HAB found, or the record supports, the following facts. The
applicants own a lakefront seasonal residential cottage in Hampstead. The
applicants’ lot is non-conforming because of its small size and lack of sufficient
frontage. Consequently, the Hampstead Zoning Ordinance (HZO) requires a
special exception to alter or enlarge the cottage. Hampstead, N.H. Zoning
Ordinance, § 1.2:1(B)(2) (1968) (amended 1998); § III-3:4 (1968) (amended
1989). The applicants applied to the ZBA for a special exception to remodel
and add a second story to the cottage. After a hearing, the ZBA granted the
special exception. The ZBA’s decision did not “include specific written findings
of fact that support the decision” as required by RSA 676:3, I (Supp. 2025).
Instead, it recited only that the ZBA “determined the request met the
requirements” of the ordinance. The abutter moved for rehearing of the ZBA’s
decision. During the pendency of the rehearing request, the applicants
partially completed the planned renovations. The ZBA denied rehearing. The
abutter appealed the ZBA decision to the HAB. After a merits hearing, the HAB
dismissed the appeal, finding that the ZBA’s decision was not unreasonable or
unlawful. This appeal followed.

¶3 On appeal, the abutter argues that the ZBA erred in granting the
applicants a special exception because they did not meet their burden to prove
that the special exception criteria were satisfied. As a result, the abutter
argues, the HAB erred in affirming the ZBA’s decision. The applicants argue
that photographs of the abutter’s lake view provided by the abutter to the ZBA
support the ZBA’s “(implicit) finding that no diminution of the value of the
[abutter’s] real estate would occur” and, therefore, “there is no basis to override
the HAB.” We agree with the abutter.

¶4 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. 2025); see RSA 677:6 (2016); see also RSA 679:9, I (Supp.
2025) (appeals to the HAB shall be consistent with those to the superior court
pursuant to RSA 677:4 through RSA 677:16). The appealing party bears the
burden of proving 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
determines not 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); Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497, 504
(2018).

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[¶5] Our review of the HAB’s decision is governed by RSA chapter 541.
See RSA 679:15 (Supp. 2025). Accordingly, we will not set aside the HAB’s
order unless we are satisfied, by a clear preponderance of the evidence, that
the order is unjust or unreasonable. See RSA 541:13 (2021). We treat the
HAB’s factual findings as “prima facie lawful and reasonable.” See 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.

¶6 In an application to obtain a special exception from a zoning board,
the burden of proof is on the applicant to present sufficient evidence to support
a favorable finding on each of the ordinance’s requirements for a special
exception. See McKibbin v. City of Lebanon, 149 N.H. 59, 61 (2003); Tidd v.
Town of Alton, 148 N.H. 424, 427 (2002); Jensen’s, Inc. v. City of Dover, 130
N.H. 761, 765 (1988). When considering whether to grant a special exception,
zoning boards may not vary or waive any of the requirements set forth within
the ordinance. See McKibbin, 149 N.H. at 61.

¶7 The HZO states that “[p]rovided that said changes are within the
spirit and intent of the Ordinance, the Board of Adjustment may grant as a
Special Exception the following changes: . . . The alteration or enlargement of a
structure on a non-conforming lot, as long as there is no diminution of
surrounding property values in the view of the Board.” Hampstead, N.H.
Zoning Ordinance § 1.2:1, B (1968) (amended 1998). Accordingly, the
applicants were required to prove that: (1) the addition to their cottage would
be within the spirit and intent of the ordinance and (2) the addition would not
result in a diminution of surrounding property values. See Jensen’s, Inc., 130
N.H. at 765. The applicants did not meet this burden.

¶8 At the ZBA hearing on the application, Mr. Spicer testified about the
applicants’ reasons for seeking the special exception and the content of the
proposed construction plans. Mr. Spicer further testified that the addition
would increase the height of the structure by ten feet. The applicants
presented no evidence regarding whether the addition would affect the value of
surrounding properties or whether the project was consistent with the spirit
and intent of the ordinance. Indeed, the applicants did not even mention the
ordinance’s special exception criteria at the hearing.

¶9 The abutter testified at the hearing that the addition would obstruct
her view of the lake and introduced pictures of her lake view. In contrast to the
applicants’ presentation, the abutter quoted the special exception criteria and
stated that the project “is contrary to the spirit and intent of the ordinance,
and it will diminish my property value.” The applicants offered nothing in
rebuttal to the abutter’s testimony.

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[¶10] In Barrington East Owners’ Assoc. v. Town of Barrington, 121 N.H.
627 (1981), a landowner applied for a special exception to build a shopping
mall. Barrington East Owners’ Assoc., 121 N.H. at 629. The ZBA approved the
application, and the superior court affirmed. Id. We reversed. Id. at 632. We
observed that the zoning ordinance required that the project “would not cause
a substantial diminution of area property values,” among other requirements,
and that the landowner presented no evidence that the proposed mall would
not cause such a diminution. Id. at 630 (brackets omitted). At the hearing,
other property owners “testified that the proposed mall would adversely affect
the value of their condominiums.” Id. On this record, we concluded that the
ZBA “did not have sufficient information before it to make the required
findings” regarding diminution of area property values, among other criteria.
Id. at 631.

¶11 Here, the applicants likewise presented no evidence that the
proposed addition would not diminish surrounding property values and the
abutter testified that it would reduce the value of her property. The applicants
suggest that the pictures submitted by the abutter provided sufficient evidence
for the ZBA to find that there would be no diminution of property values
resulting from the addition. We disagree that this evidence was sufficient to
demonstrate that the surrounding property values would not be diminished.
Cf. Hussey v. Town of Barrington, 135 N.H. 227, 234 (1992) (affirming denial of
variance request where “the ZBA heard detailed appraisal data indicating the
negative effect [the operation] would have on adjoining property values”). The
applicants therefore failed to meet their burden to establish a right to a special
exception, and the ZBA had no record basis for its implicit conclusion that the
addition would not adversely affect surrounding property values. Cf. Jensen’s,
Inc., 130 N.H. at 765-66 (affirming denial of special exception request where
applicant “failed to meet its burden of proof” on a special exception criterion).

¶12 The applicants also argue that the language “in the view of the
Board” found in the ordinance’s special exception criteria “was intended to vest
the [ZBA] with broad discretion and limit the ability to challenge the [ZBA]
finding on this point.” More specifically, the applicants assert that the
language changes the standard of review on appeal to “whether an agency (in
this case the ZBA) acted illegally with respect to jurisdiction, authority or
observance of law, or unsustainably exercised its discretion or acted arbitrarily,
unreasonably or capriciously.” The applicants contend that under this
standard of review, the ZBA’s decision should be affirmed.

¶13 We disagree that the language “in the view of the Board” alters the
standard of review in this case. We hold that this language requires that to
grant a special exception the ZBA must make the specific finding that
surrounding property values would not be diminished. As explained above, the
applicants failed to meet their burden to demonstrate that surrounding

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property values would not be diminished and, upon this record, the ZBA’s
decision granting the special exception is unreasonable and cannot stand.

¶14 Accordingly, we conclude that the ZBA’s decision granting the
special exception and the HAB’s decision affirming the ZBA are unreasonable.
See RSA 541:13. Consequently, we reverse the HAB’s decision and remand to
the HAB with the instruction that it reverse the ZBA’s decision. See Gail C.
Nadeau 1994 Trust v. City of Portsmouth, 155 N.H. 810, 813 (2007) (reversing
trial court order where the petitioners failed to meet their burden of proof).

Reversed and remanded.

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