New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Land Use: To Have Standing Before the Zoning Board of Adjustment, a Non-Party Must Identify a Direct Injury It Would Suffer Other than Increased Business Competition

Hannaford Brothers Co. v. Bedford
No. 2011-611, 4/25/2013

The petitioner owns and operates a 36,541 square foot supermarket on Route 101 in the Town of Bedford, in the commercial zone. The town’s zoning ordinance limits the size of buildings in the commercial zone to 40,000 square feet. Subsequently, a different company sought a variance to build a supermarket in the commercial zone with a size of 78,332 square feet, located 3.8 miles from the petitioner’s property.
 
The petitioner participated in the Zoning Board of Adjustment (ZBA) hearings on the matter in opposition to the variance, but the ZBA granted the variance. The ZBA denied petitioner’s motion for a rehearing, finding that the petitioner was not a “person directly affected” by the decision, and thus without “legal standing” to contest the variance. Upon appeal to the Superior Court, that court also found the petitioner to have no legal standing to contest the variance, and dismissed the appeal. This appeal to the NH Supreme Court resulted from that decision.
 
 
Under RSA 677:2, which is the statute governing appeals from a ZBA decision, 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. In this case, 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).  Standing could only exist if the petitioner could prove it was “directly affected” by the variance, and that is the issue the Supreme Court had to address.
 
The petitioner objected to the variance because 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.” It cited an earlier decision, Nautilus of Exeter v. Exeter, 139 N.H. 450 (1995) which had also denied standing to a business that complained of a variance because it resulted in increased business competition. Thus, since this petitioner did not allege any specific or identifiable harm to its property beyond the likelihood of increased competition, it had no standing to challenge the variance and the original decision remained in place.

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