NH Supreme Court Denies Variance for Larger Residence that was “Contrary to the Spirit of the Ordinance”

This post was authored by Amy Lavine, Esq.

The New Hampshire Supreme Court affirmed the denial of a variance in a February ruling, agreeing with the zoning board that permitting the property owner to build a larger residence would have been “contrary to the spirit of the ordinance.” In particular, the variance would have contributed to an overcrowding of the land, which was already restricted due to the property’s location on a narrow strip of lakefront land. The court found that it was entirely reasonably for the board to take into account the cumulative impact that would result if similar variances were sought for neighboring properties. Foley v. Town of Enfield, 2018 WL 665148 (2/2/18)

The property at issue was one of seven small parcels located on Rollins Point, a narrow strip of land that protruded into Crystal Lake. A seasonal cottage was located on the property, but the owner wanted to replace it with a larger, year-round residence with an attached garage. He submitted a request for a variance from the setback requirements in order to accommodate these plans, but the zoning board denied his application on the ground that it would be contrary to the spirit of the ordinance. The board pointed out that each of the properties on Rollins Point suffered from similar size and setback limitations, and it found that granting the variance would “crowd the land… and might encourage further such crowding.”

The court explained that it had previously found, in Harborside Associates, that a variance would be contrary to the spirit of the ordinance if it conflicted with the ordinance’s “basic zoning objectives.” Accordingly, it was necessary to examine the stated purposes of the ordinance, which in this case included “preventing the overcrowding of the land,” “assuring proper use of natural resources,” and “providing for harmonious development of the land and its environs.”

The property owner argued that his construction of a single-family home would not alter the character of the neighborhood, which was already built up with detached homes, but the court emphasized that the “character of the neighborhood” also had to take into account the similar size and geographic limitations on the other properties on Rollins Point. The property owner also argued that the zoning board impermissibly considered the potential for future crowding on Rollins Point, but the court found this analysis to be appropriate. As the court explained, while permitting the property owner to build a larger house might not have a substantial effect on Rollins Point by itself, the effect of granting similar variances for additional properties could be “large and irreversible.” It was thus entirely appropriate for the board to consider cumulative impacts in its review of the property owner’s application.

Next, the property owner contended that the board’s finding that his variance would be in the public interest contradicted its finding that it would conflict with the spirit of the ordinance. The court did not find this point to be persuasive, however, because while these two criteria were related, it had “never held that a zoning board’s findings on these two statutory criteria must be the same.”

The property owner also alleged that the board chair had engaged in improper ex parte communications on his request for rehearing, and if he had been aware of these communications he would have requested that the chair be recused. The particular communications involved an email list serve, which the chair had used the day before the board meeting to ask whether the board should consider precedents when deciding a case. The chair received several responses with various answers from municipal employees and zoning board members in other towns. Although the property owner claimed that he raised this issue during oral arguments at the superior court, however, the court declined to address this issue because record did not contain a hearing transcript to this effect. Additionally, because the superior court’s order did not address this issue, the correct procedure was to raise the error in a motion for reconsideration. Even assuming that the ex parte issue was properly preserved, the court noted that it would still not have found any error; there was simply no evidence that the list serve email had affected the board’s decision, let alone caused prejudice, as the board voted to deny the variance on rehearing on the same basis for its original denial.

Foley v. Town of Enfield, 2018 WL 665148 (NH 2/2/18)