NH Supreme Court Affirms Variance for Assisted Care Home to Increase Capacity

This post was authored by Tyler Doan of Vermont Law School.

Petitioners appealed a decision below upholding the granting of a variance by the zoning board of appeals for an existing elderly assisted care home to increase capacity from twelve to twenty-four beds. Since the trial court must treat the ZBA’s findings as prima facie and may not set aside or vacate the decision unless there is an error of law or is persuaded by evidence, the appeal court will uphold the decision unless the evidence does not support it or is legally erroneous. Petitioners emphasize that evidence from a hydrogeologist suggests that routing sewerage from the facility to a city sewer line may be more appropriate than the proposed leach field. Additionally, they argue that the price to attach to the city sewerage would be the same as installing the leach field. Lastly, petitioners argue that the City’s zoning ordinance expressly requires assisted living facilities to be connected to the municipal sewer. Respondents argue the expert’s opinion lacked sufficient certainty, there is no requirement to connect to municipal sewer unless already within 100 feet of a municipal sewer line, and they only discussed connecting to a neighboring property owner’s sewage main, not the municipalities a half-mile away. The Court concluded that the petitioners have not met their burden of demonstrating a reversible error and therefore upheld the decision below.

Little Tree Education, LLC v City of Dover, 2020 WL 6058585, (NH 9/18/2020)