Konover Development Corp. proposed building a 36,000 square-foot supermarket on an 11-acre lot between state Route 125 and Main Street in Kingston. The site lies within the town’s historic district because it has frontage within the district, although about two-thirds of the lot is in the town’s rural residential district. The historic district runs 350 feet along either side of Main Street. The developer thus needed approval of the town’s Historic District Commission (HDC). After several hearings, the HDC denied the application on the grounds the market did not conform to the district’s description and permitted uses. It said the market did not qualify as a small retail business, compared to other businesses in the district, which are all smaller than 4,000 square feet; was not principally designed to serve the residents of Kingston; and would result in increased traffic and noise. The zoning board of appeals reviewed the application de novo, and reached the opposite conclusion. It found the proposed market was consistent with other uses in the historic district; was relatively small compared to other supermarkets; was principally designed to serve shoppers in Kingston; and would not generate significant increases in traffic and noise. The superior court upheld the ZBA’s decision.
The protesting residents claimed the board of appeals must review HDC decisions for “clear error.” Because the trial court found no basis for clear error, they argued the ZBA’s decision must be reversed. The Supreme Court disagreed. While no statutory provision expressly authorizes the ZBA to review administrative decisions de novo, the law does confer upon the board all the powers of the administrative official from whom the appeal is taken. Therefore, the court said, the ZBA is authorized to step into the shoes of the administrative official, in effect conferring on it de novo review authority. The court also noted that the statutory language governing appeals to the ZBA is virtually identical to that in the 1925 Standard State Zoning Enabling Act. Interpreting language virtually identical to that of the New Hampshire law, the majority of courts have held the proper standard of review is de novo, the court said.
Based on its ruling that the proper standard of review of the commission’s determination is de novo, the court rejected the residents’ argument that the ZBA substituted its own judgment for that of the HDC or that it ignored evidence the HDC found pertinent. Under de novo review, the ZBA is not required to give deference to the HDC’s findings or rulings, so substituting its judgment for the HDC’s finding or failing to discuss evidence the HDC considered are not grounds for reversal.
The record showed there was evidence to support the ZBA’s findings, the court continued. The board found that while the predominant use in historic district was residential, there were many mixed uses throughout the district, and the addition of a supermarket on the edge of the district would not be out of keeping with its land-use pattern. The board listed such large nonresidential uses as schools, the village market, a shopping plaza and a restaurant. The court also noted that the town’s master plan encouraged commercial development nearby. Retail uses are permitted in the historic district as long as they are not inconsistent with the district’s character and are principally designed to serve shoppers from the community, the court continued. The
character of the district was an integrated area of mixed uses, predominantly residential, with small retail businesses for convenience shopping, and a variety of public buildings. Nevertheless, the regulations do not require that a proposed business be a “small retail business.” There was evidence to support the board’s findings that the market would not be inconsistent with the character of the district or the land-use pattern within the district, the court declared.
Ouellette v. Town of Kingston, 2008 WL 3540062 (NH 8/15/2008).
The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2008/ouell089.pdf
Special thanks to James Lawlor, Esq. author of the Land Use Legal Report. This abstract appeared in part in vol. 2 no. 17 (8/15/2008). For information about subscribing to the LULR, contact Jim at landlaw@verizon.net.
