Nadeau v. Town of Durham

531 A.2d 335, 129 N.H. 663, 1987 N.H. LEXIS 230
CourtSupreme Court of New Hampshire
DecidedAugust 17, 1987
DocketNo. 86-310
StatusPublished
Cited by15 cases

This text of 531 A.2d 335 (Nadeau v. Town of Durham) 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
Nadeau v. Town of Durham, 531 A.2d 335, 129 N.H. 663, 1987 N.H. LEXIS 230 (N.H. 1987).

Opinion

Johnson, J.

The defendant’s appeal is from a decree of the Superior Court (Contas, J., approving a report of the Master, R. Peter Shapiro, Esq.), which set aside decisions of the Durham Planning Board (the board) and the Durham Zoning Board of Adjustment (ZBA) approving the defendant’s proposed development of housing for older citizens and which ruled that the [664]*664defendant’s proposed use of a right-of-way was unreasonable. We affirm.

The defendant Real Estate Advisors, Inc. (Real Estate Advisors) owns property on the southerly side of Route 108, Dover Road, in Durham abutting property of the plaintiff, Catherine Nadeau. Access to the plaintiff’s house is via a fifty-foot-wide strip of land owned by the plaintiff, approximately 330 feet in length, stretching from the southerly side of Route 108 to the entrance of the' plaintiff’s home. According to the deed from the plaintiff’s predecessor in title, the fifty-foot strip of land is subject to the following restrictions:

“Also reserving to Albert D. Van Allen and Marion N. Van Allen, their heirs, executors, administrators, and assigns from the above-described premises, a right of way Fifty (50) Feet in width to be used in common with the grantee and others running ... a distance of approximately Three Hundred Thirty (330) Feet along the Westerly boundary of the above-described premises.”

Real Estate Advisors has a twenty-foot-wide right-of-way extending for more than 300 feet over a portion of that fifty-foot strip of land, which lies along the easterly side of its boundary. The deed to the plaintiff stated that Real Estate Advisors’ interest in that right-of-way is as follows:

“Reserving . . . from the above-described premises a right-of-way Twenty (20) Feet in width ... a distance of Three Hundred One and 5/10 (301.5) Feet, more or less. Also reserving a Twenty (20) Foot wide sewer right-of-way as it presently exists across the Northwesterly corner of said premises.”

Real Estate Advisors’ lot contains a single-family dwelling and is located in a Residence A zoning district, which by special exception permits “Housing for Older Citizens” as defined in the Durham Zoning Ordinance, Article 1.40, Section n:

“Housing for Older Citizens means a group of small dwelling units situated and arranged so as to provide comfort, security, social contact, convenience and congenial surroundings for permanent residents at least 55 years of age. Authority for any such developments shall be restricted to occupancy by persons of at least 55 years of age, and the selectmen may revoke the certificate of [665]*665occupancy of any owner or developer allowing occupancy by persons below such age.”

On July 14, 1983, Real Estate Advisors filed an application with the planning board for site review concerning its “Housing for Older Citizens” project. The board accepted the application on August 3, 1983, and selected a site review team. Several public meetings were held concerning the defendant’s proposed project. On October 5, the board unanimously approved the application for site review subject to fourteen conditions to be met by Real Estate Advisors, including the condition that a special exception be obtained from the ZBA. The plaintiff appealed the board’s decision to the superior court, pursuant to RSA 36:34 (now RSA 677:15).

On October 19, 1983, Real Estate Advisors filed an application for a special exception with the ZBA. It sought to build fourteen units of “Housing for Older Citizens,” utilizing the existing dwelling on its property and constructing additional units adjacent to that dwelling. There would be twenty-seven parking spaces, two within the existing garage, and the remaining twenty-five outdoors. Access to Route 108 would be through an entrance located on the defendant’s parcel, and the twenty-foot easement would be utilized as part of the parking and turn-around area for the project. The ZBA granted the special exception on November 21, provided that restrictive covenants be recorded giving Durham the right to enforce the age restriction.

The plaintiff filed a motion for rehearing with the ZBA, which was denied, and then appealed to the superior court. On April 10, 1985, while both appeals were pending before the superior court, the plaintiff filed a motion to remand. An order granting the remand was recommended by the master and approved by the court. The board and the ZBA were directed to consider the issues of access to the housing project and traffic safety, and the court retained jurisdiction in order to expedite any further appeals.

The board held two hearings on remand, on July 10, and July 24, 1985, and voted again to approve the application for site review. At the two hearings, the board heard testimony and received information regarding traffic safety, including a controversial traffic report.

The ZBA held a public hearing on September 3, 1985, to review the special exception application in light of the traffic safety issue. The ZBA met again on September 10, when one of its members stated that he had taken an independent view of the site and was concerned about traffic and pedestrian safety in the area. At that September 10 meeting, the ZBA voted to reaffirm its grant of a [666]*666special exception to Real Estate Advisors, with conditions additional to those it had imposed previously.

The plaintiff filed a motion for rehearing, which was denied on October 15. The plaintiff filed a formal affirmation of appeal with the superior court concerning both the planning board and the ZBA decisions.

The plaintiff also filed a declaratory judgment action in the superior court seeking to have the proposed use of .the twenty-foot right-of-way deemed unreasonable.- The three cases were consolidated, and a trial was held before the master in December, 1985. On recommendation of the master dated May 9, 1986, the court on May 13 set aside both the board and the ZBA decisions and barred the proposed use of the right-of-way. The defendant appealed.

Real Estate Advisors presents the following issues for our review: (1) whether the master erred in finding that. Real. Estate. Advisor s’ planned use of the right-of-way was unreasonable and, therefore, impermissible; (2) whether the master erred in setting aside the board and ZBA decisions based on a finding that both unreasonably relied on the traffic report; and (3) whether the master erred in setting aside the decisions based on procedural irregularities; i.e., that the ZBA failed to consider diminution in value to surrounding property, that there were different memberships of the 1983 ZBA and the 1985 ZBA, that the independent site visit by one member of the ZBA resulted in a denial of constitutional due process, and that the ZBA purportedly refused to answer the plaintiff’s thirty requests for findings of fact and rulings of law. Our decision on the first issue is dispositive of this appeal .and, thus, we need not address the others.

On appeal, we will uphold the trial court unless its decision is not supported by the evidence or is legally erroneous. See Durant, supra at 357, 430 A.2d at 144. We look to whether a reasonable person “could have reached the same decision as the trial court based on the evidence before it.” Zimmerman v. Suissevale, Inc., 121 N.H. 1051, 1054, 438 A.2d 290, 292 (1981).

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Cite This Page — Counsel Stack

Bluebook (online)
531 A.2d 335, 129 N.H. 663, 1987 N.H. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nadeau-v-town-of-durham-nh-1987.