NH Supreme Court Upholds Finding of Hardship to Support Manufactured Housing Park’s Variance Request

This post was authored by Matthew Loeser, Esq.

Donald and Bonnie Toy owned a 14.5-acre manufactured housing park known as “Addison Estates” in Rochester. Addison Estates contains 25 approved lots, 15 of which are built and occupied. The Toys installed an onsite sewage disposal system in Addison Estates and provided for maintenance of all of the private utilities within the subdivision. In April 2014, the Rochester City Council passed an updated zoning ordinance that eliminated manufactured housing parks as permitted uses anywhere in the city. In August 2016, the Toys applied for a variance to expand their manufactured housing park onto a 22-acre lot (Lot 54-1) that abutted Addison Estates. The ZBA granted the Toys’ variance request, and denied plaintiff’s motion for rehearing. In this case, the plaintiff, Rochester City Council, appealed an order of the Superior Court affirming defendant City of Rochester Zoning Board of Adjustment’s grant of a variance to the Toys’.

Here, the court found that although the ZBA did not explicitly address unnecessary hardship in its written decision, the record indicated that the Toys addressed unnecessary hardship in their variance application, and that the ZBA discussed whether the Toys had demonstrated unnecessary hardship. Thus, the ZBA’s failure to explicitly make a finding regarding unnecessary hardship was not an error. Accordingly, the court did not err when it assumed that the ZBA made a finding of unnecessary hardship. Furthermore, although the trial court could have taken additional evidence or remanded to the ZBA for clarification if it found the decision to be unclear, the court found that the trial court did not unsustainably exercise its discretion by choosing to conduct its review based upon the decision and record before it.

The plaintiff next contended that there was insufficient evidence of hardship for the ZBA to approve the Toys’ application. The court noted that Lot 54-1 was irregularly and uniquely shaped, and contains wetlands and challenging topographical features. The court further found that the location and configuration of the lot itself, and the fact that the manufactured housing parks near it were not permitted under the new zoning ordinance, rendered Lot 54-1 unique in comparison to other properties in the area.

Finally, as to the plaintiff’s assertion that it was not making a bias argument, and that the trial court erred in construing the motion to expand the record, the court found the plaintiff was obligated to inform the trial court of its misapprehension of the plaintiff’s position in a motion for reconsideration. Since plaintiff failed to do so, the court held that the trial court did not unsustainably exercise its discretion in denying the plaintiff’s motions to expand the record.

Rochester City Council v Rochester Zoning Board of Adjustment, 2018 WL 4266716 (NH 9/7/2018)