Peabody v. Town of Windham

703 A.2d 886, 142 N.H. 488, 1997 N.H. LEXIS 121
CourtSupreme Court of New Hampshire
DecidedDecember 29, 1997
DocketNo. 96-258
StatusPublished
Cited by14 cases

This text of 703 A.2d 886 (Peabody v. Town of Windham) 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
Peabody v. Town of Windham, 703 A.2d 886, 142 N.H. 488, 1997 N.H. LEXIS 121 (N.H. 1997).

Opinion

BRODERICK, j.

The plaintiffs, John and Dianna Peabody, appeal a ruling of the Superior Court (Murphy, J.) denying their request for attorney’s fees despite a finding that the Town of Windham Zoning Board of Adjustment (board) acted in bad faith by imposing restrictions on the use of their property. The Town of Windham (town) cross-appeals, arguing that the Superior Court (Goode, J.) erred in vacating the board’s decision. Because we reverse the trial court’s order vacating the board’s decision, the plaintiffs’ appeal is moot.

In February 1993, the plaintiffs purchased property in Windham that the prior owner had used for many years to operate a well drilling business. The property was located in a rural district that allowed for rural, residential, and noncommercial uses. The well drilling business predated zoning restrictions prohibiting its existence, and therefore, it operated as a lawful, nonconforming use. See [491]*491New London v. Leskiewicz, 110 N.H. 462, 465, 272 A.2d 856, 859 (1970). The plaintiffs acquired the rights to the nonconforming use when they purchased the property. See New London Land Use Assoc. v. New London Zoning Board, 130 N.H. 510, 516, 543 A.2d 1385, 1388 (1988).

In April 1993, the plaintiffs began moving paving equipment onto their property. This activity came to the attention of the town’s building inspector, who wrote to the plaintiffs on April 27, 1993, advising that “[t]he paving company is not an allowed use in the Rural District.” He ordered the removal of all paving equipment and required that “the property be returned to those uses permitted by zoning ordinance or the non-conforming use of a company that drills wells.” The plaintiffs appealed to the board, arguing that they used the paving equipment in their construction business and that the scope of the nonconforming use had not been expanded. After a hearing, the board ruled that the plaintiffs did have a right to operate a construction business under the nonconforming use, but not a paving business. It ordered that no paving equipment or vehicles with residual paving materials be parked or repaired on the property.

Following a lengthy rehearing, at which more than a dozen witnesses expressed concern about an increase in traffic, the smell of diesel fuel, groundwater contamination, and related issues, the board reaffirmed its earlier ruling that the plaintiffs’ construction business fell within the parameters of the nonconforming use. The board, however, imposed three conditions: (1) no paving materials or vehicles with residual paving materials were to be parked or repaired on the site; (2) equipment on site was limited to ten pieces; and (3) none of the plaintiffs’ vehicles larger than cars or pickup trucks could use the access road to the property.

The plaintiffs appealed to the superior court. See RSA 677:4 (Supp. 1996). After an evidentiary hearing and a review of the certified record of the board, the trial court ruled that the board’s decision was “unlawful and/or unreasonable” on its face, and that the conditions imposed by the board were unreasonable and beyond its authority. The trial court reasoned that the plaintiffs’ appeal to the board merely sought a reversal of the building inspector’s decision. Therefore, it was improper for the board to consider evidence “on disparate topics such as the environment, crime, and traffic safety — none of which has any relevance to a determination of whether the [plaintiffs] are entitled to a permitted nonconforming use.” In vacating the board’s decision, the trial court concluded that [492]*492the board acted in bad faith. The plaintiffs’ subsequent request for attorney’s fees was denied. This appeal and cross-appeal followed.

In reviewing the trial court’s order, we “uphold the decision of the superior court unless [it] is not supported by the evidence or is legally erroneous.” Conforti v. City of Manchester, 141 N.H. 78, 80, 677 A.2d 147, 149 (1996) (quotation omitted). For its part, the trial court, in reviewing the decision of a zoning board of adjustment, is limited to “a determination of whether, on the balance of the probabilities, the decision was unlawful or unreasonable.” RSA 677:6 (1996); see Peter Christian’s v. Town of Hanover, 132 N.H. 677, 683, 569 A.2d 758, 763 (1990). Findings of a zoning board of adjustment, upon all questions of fact properly before it, are deemed prima facie lawful and reasonable. RSA 677:6; Biggs v. Town of Sandwich, 124 N.H. 421, 426, 470 A.2d 928, 931 (1984). The issues before us are whether the trial court erred in ruling that the board, in deciding an administrative appeal involving the scope of a nonconforming use, had no right to impose conditions on its continued enjoyment, and that the conditions were unreasonable and unlawful.

The board has broad authority on subjects within its jurisdiction. See Vlahos Realty Co. v. Little Boar’s Head Dist., 101 N.H. 460, 463, 146 A.2d 257, 260 (1958). It has the power to “reverse or affirm, wholly or in part, or . . . modify the order, requirement, decision, or determination appealed from and . . . make such order or decision as ought to be made and, to that end, shall have all the powers of the administrative official from whom the appeal is taken.” RSA 674:33, II (1996). This authority exists not only for administrative appeals, but for the grant of variances as well. RSA 674:33, I-II (1996).

The right to grant variances subject to conditions is well recognized, see, e.g., Healey v. Town of New Durham, 140 N.H. 232, 237, 665 A.2d 360, 366 (1995), and a similar right attaches to appeals from decisions by administrative officers involving nonconforming uses, provided the conditions are reasonable and lawful. See RSA 674:33, I-II; Vlahos Realty Co., 101 N.H. at 463, 146 A.2d at 260. A change or expansion of a nonconforming use “may be more detrimental to zoning than a variance.” New London, 110 N.H. at 465, 272 A.2d at 859. Accordingly, a zoning board, considering an administrative appeal, may impose reasonable conditions to prevent improper expansions of nonconforming uses. See RSA 674:33, I-II.

[493]*493Although both the New Hampshire Constitution and State statute protect the existing use of land or structures from becoming unlawful by later zoning enactment, N.H. CONST, pt. I, arts. 2, 12; RSA 674:19 (1996), property owners’ rights to use their property are not unlimited. Town of Hampton v. Brust, 122 N.H. 463, 468, 446 A.2d 458, 460 (1982). A controlling policy of zoning law is to carefully limit the extension and enlargement of nonconforming uses. Arsenault v. Keene, 104 N.H. 356, 359, 187 A.2d 60, 62 (1962); cf. Keene v. Blood, 101 N.H.

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Bluebook (online)
703 A.2d 886, 142 N.H. 488, 1997 N.H. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peabody-v-town-of-windham-nh-1997.