Grey Rocks Land Trust v. Town of Hebron

614 A.2d 1048, 136 N.H. 239, 1992 N.H. LEXIS 162
CourtSupreme Court of New Hampshire
DecidedOctober 14, 1992
DocketNo. 91-398
StatusPublished
Cited by16 cases

This text of 614 A.2d 1048 (Grey Rocks Land Trust v. Town of Hebron) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grey Rocks Land Trust v. Town of Hebron, 614 A.2d 1048, 136 N.H. 239, 1992 N.H. LEXIS 162 (N.H. 1992).

Opinions

Johnson J.

The plaintiffs, Grey Rocks Land Trust (Grey Rocks), and its trustees, P. Andrews McLane and Douglas McLane, appeal the Superior Court’s (Smith, J.) order upholding the decision of the defendant, Town of Hebron Zoning Board of Adjustment (ZBA), to grant a variance to co-defendant, William Robertie, doing business as the Newfound Lake Marina, Inc. (Marina). Because Robertie failed to sustain his burden of proving that he would suffer a hardship if the variance were denied, we reverse.

The Marina is a pre-existing, nonconforming use located in the Lake District established by the Hebron Zoning Ordinance, near the mouth of the Cockermouth River, which flows into Newfound Lake. The purposes of the Lake District are “to limit the uses of this district so as to protect [scenic, recreational and environmental] values and encourage only such further developments as will not harm the environment or destroy this district or any part thereof as a natural and scenic resource of the Town.” HEBRON ZONING ORDINANCE, Art. VI, A. Permitted uses in the Lake District include small hotels and motels, restaurants, small office buildings and up to four-unit multiple-family dwellings. Id. Art. VI, B. The Marina pre-existed the enactment of the ordinance and is, therefore, permitted as a nonconforming use.

Grey Rocks is a land trust that owns property abutting the Marina. The trustees and beneficiaries use the trust property for recreational and residential purposes.

The Marina’s facilities are located on a tract of roughly 35 acres on both sides of a channel, most of which is wetlands and/or flood plain. At the time of Robertie’s application for a variance, the Marina’s facilities consisted of five buildings: three buildings used for boat storage, one building used as a boat repair shop, and one building used for retail sales and rentals. These buildings are clustered close to the town road that services the Marina, away from the channel, and buffered from Grey Rocks’ property. The Marina also includes docks and “bank slips” in the channel near the mouth of the river sufficient to accommodate at least 111 boats.

In October 1987, Robertie applied to the Hebron Board of Selectmen for a permit to build an additional boat storage building. The selectmen denied the application because it was an expansion of a nonconforming commercial use under the zoning ordinance.

In August 1988, Robertie applied to the ZBA for a variance to build the boat storage building. On September 14, 1988, the ZBA held a hearing to consider the application, which trustee Douglas McLane attended on behalf of Grey Rocks. The minutes from that [242]*242meeting reflect that trustee McLane “thinks this doesn’t meet the requirements of Zoning[,]” but that “[h]e realizes it takes many boats for a business.” At the conclusion of the hearing, the ZBA voted unanimously to grant the variance, and on October 5,1988, the ZBA voted to deny Grey Rocks’ appeal for a rehearing.

Grey Rocks appealed to the superior court pursuant to RSA 677:4. The Court (Smith, J.) remanded to the ZBA “for further hearing, if necessary, to make specific factual findings on the required grounds for a variance.”

The ZBA held a public meeting on December 27, 1990, but voted against holding further hearings. The ZBA remitted a set of factual findings to the court, in which it essentially reaffirmed its previous findings. The court then dismissed the plaintiffs’ appeal, ruling that “[t]he Board’s decision amounted to an implicit finding that the several requisites for a variance had been met.”

On appeal, the plaintiffs argue that the trial court erred in ruling that the ZBA’s decision was reasonable and legally correct, because the ZBA made no factual findings relating to hardship, and no supporting facts appear in the record. We agree.

The superior court correctly set out the requirements for a variance:

“To obtain a variance under RSA 674:33[,] 1(b), an applicant must satisfy each of five requirements: (1) that a denial of the variance would result in unnecessary hardship to the applicant; (2) that no diminution in value of surrounding properties would occur; (3) that the proposed use would not be contrary to the spirit of the ordinance; (4) that granting the variance would benefit the public interest; and (5) that granting the variance would do substantial justice.”

Rowe v. Town of North Hampton, 131 N.H. 424, 427, 553 A.2d 1331, 1333 (1989); Gelinas v. Portsmouth, 97 N.H. 248, 250, 85 A.2d 896, 898 (1952).

This court has further defined the requirement that a denial of a variance result in unnecessary hardship. The standard for establishing hardship is narrow. Governor’s Island Club v. Town of Gilford, 124 N.H. 126, 130, 467 A.2d 246, 248 (1983). “For hardship to exist under our test, the deprivation resulting from application of the ordinance must be so great as to effectively prevent the owner from making any reasonable use of the land.” Id. (emphasis added). Furthermore, the hardship must arise from “some unique condition of [243]*243the parcel of land distinguishing it from others in the area . . . Crossley v. Town of Pelham, 133 N.H. 215, 216, 578 A.2d 319, 320 (1990) (emphasis added). “The uniqueness of the land, not the plight of the owner, determines whether a hardship exists.” Rowe, supra at 428, 553 A.2d at 1334.

In this case, the plaintiffs have met their burden of proving that the ZBA’s decision was “erroneous as a matter of law or unreasonable on a ‘balance of probabilities.’” Crossley, supra at 216, 578 A.2d at 320 (quoting RSA 677:6). Defendant Robertie demonstrates a misunderstanding of the relevant law when he states jn his brief that “[Grey Rocks] is substantially to blame for the inadequacy of the local record, because their representative failed to introduce sufficient evidence to indicate the lack of the elements for a variance . . . .” This is directly contrary to the law. The„party seeking a variance, in this case Robertie, bears the burden of establishing each of the requirements for a variance. Rowe, supra at 427, 553 A.2d at 1333.

Although “the failure to disclose specific findings is not error where ... no request for such findings is made,” Barrington East Owners’ Assoc. v. Town of Barrington, 121 N.H. 627, 630, 433 A.2d 1266, 1268 (1981), “[t]here must, however, be sufficient evidence before the board to support a favorable finding on each of the statutory requirements for a special exception,” id. We have examined the minutes of the four ZBA meetings at which the Marina variance was discussed, including the December 27, 1990, meeting at which the ZBA responded to the superior court’s request for specific factual findings. The only reference to a unique hardship is the conclusory statement in the minutes of the October 5, 1988 meeting that “[t]he Bd. feels a hardship does exist unique to this property which distinguishes it from all others similarly situated.” The minutes fail to reveal the facts upon which this legal conclusion is based.

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Bluebook (online)
614 A.2d 1048, 136 N.H. 239, 1992 N.H. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grey-rocks-land-trust-v-town-of-hebron-nh-1992.