Posted by: Patricia Salkin | June 5, 2013

NH Supreme Court Holds That increased Business Competition Does Not Support Standing for Non-Party Challenging Variance

A supermarket sought review of a decision of the town zoning board of adjustment (ZBA) which granted a variance to an ordinance restricting the size of any single building in the commercial district to a competing supermarket developer. The petitioner owns and operates a 36,541 square foot supermarket in a commercial zone where the zoning ordinance limits the size of buildings to 40,000 square feet. Subsequently, a different company sought a variance to build a supermarket in a commercial zone with a size of 78,332 square feet, located 3.8 miles from the petitioner’s property. Although the petitioner participated in the zoning board hearings on the matter, the board denied petitioner’s motion for a rehearing on the grounds that petitioner was not a “person directly affected” by the decision, and thus without “legal standing” to contest the variance. The Superior Court agreed and petitioner appealed to the New Hampshire Supreme Court.

Turning to state statute (RSA 677:2) that governs appeals from a zoning board decision, the court explained that a person may have access to the courts for review if he or she is either a) a party entitled to participate in the case or b) any person directly affected thereby. Here, the Court found that the petitioner was not a party to the case because it was not a direct abutter of the site (the sites were 3.8 miles apart). Therefore, petitioner had to prove it was “directly affected” by the variance. Petitioner’s objection to the variance was that it permitted a direct competitor operating the same type of business to build a much larger facility in the same type of zone in the same town. The Court rejected the argument, noting, “An appeal of a ZBA decision is not a weapon to be used to stifle business competition.” The distance of supermarket to developer did not support standing;

 

Hannaford Brothers Company v Town of Bedford, 64 A.3d 951 (NH 4/25/2013)

The opinion can be accessed at: http://www.courts.state.nh.us/supreme/opinions/2013/2013032hannaford.pdf


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