New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Zoning Objectives Must Be Considered in Variance Denial

Chester Rod and Gun Club, Inc. v. Town of Chester
No. 2004-857, 9/2/2005

This is a variance case that turns, first, on the meaning of the public interest criterion (one of five criteria an applicant must prove to receive a variance from the zoning ordinance) and, second, on whether the zoning board of adjustment's record in considering other reasons for its denial of the variance was sufficient to support its decision.

In January 2003, the Chester Rod and Gun Club, through an application submitted by AT&T Wireless, sought a use variance to build a 150-foot telecommunications tower on its property in a residential zone where telecommunications towers are not permitted. However, before the ZBA's public hearing on the variance application, AT&T negotiated a lease contract with the selectmen to build a telecommunications tower on town-owned transfer station land.

In 2001, the town meeting had approved a warrant article authorizing the selectmen to enter into a lease with SBA Towers for a telecommunications tower on the town land. The SBA Towers lease never came about. In July 2003, the ZBA denied the variance application for the telecommunications tower on the Chester Rod and Gun Club land, stating that the applicant did not meet the public interest requirement for obtaining a variance. Under the law, the applicant must prove that granting the variance will not be contrary to the public interest.

As grounds for its denial, the ZBA said the public interest had been expressed by the 2001 town meeting vote authorizing the selectmen to negotiate a lease of town property for a telecommunications tower. Granting the Chester Rod and Gun Club variance for a telecommunications tower on its land would frustrate the town's ability to fulfill its pending lease agreement for a tower on town land, the ZBA reasoned, and would, therefore, be contrary to the public interest.

The ZBA also said the applicant had not proved that granting the variance would not injure the public or private rights of others, which is one of the three prongs of the unnecessary hardship criterion for a variance. In support of this finding, the ZBA stated that the 2001 warrant article and lease agreement “establish public rights of the [t]own which will be injured by granting this variance.”

The Chester Rod and Gun Club sought a rehearing before the ZBA, which was denied. In the meantime, the ZBA approved a variance for AT&T's telecommunications tower on the town's land, also located in a residential district. The Chester Rod and Gun Club then appealed to the superior court, which found that the ZBA improperly relied on the 2001 warrant article as grounds for finding that the public interest criterion for a variance had not been met.

The trial court vacated the ZBA's decision and ordered it to grant the Chester Rod and Gun Club variance. The town then appealed the trial court's order to the Supreme Court.

The requirements that the variance not be contrary to the public interest or injure the public or private rights of others “are coextensive and related to the requirement that the variance be consistent with the spirit of the ordinance,” the Court wrote, citing Bacon v. Town of Enfield, 150 N.H. 468, 471 (2004) and 3 K. Young, Anderson's American Law of Zoning § 20.41, at 546-547 (4 th ed. 1996). Citing a Rhode Island case, Coderre v. Zoning Bd. Of Review of City of Pawtucket, 251 A.2d 397, 401 (R.I. 1969), the Court stated:

Thus, to be contrary to the public interest or injurious to the public rights of others, the variance must ‘unduly, and in a marked degree' conflict with the ordinance such that it violates the ordinance's ‘basic zoning objectives.'

One way to determine whether a variance would violate “basic zoning objectives,” according to the Court, is to examine whether the variance would “alter the essential character of the locality.” The Court wrote, “[A] variance must be denied if the proposed use will alter the essential character of the neighborhood,” again citing Anderson's American Law of Zoning . Another way to determine whether the variance would violate “basic zoning objectives,” the Court wrote, was to “examine whether granting the variance would threaten the public health, safety or welfare.”

The Court held that the ZBA erred in relying on the 2001 warrant article vote as evidence of public interest instead of the zoning ordinance itself. The Court noted that the town's stated purpose in creating the residential zoning district was to recognize “‘the unique scenic, historic, rural and natural characteristics' of this part of the [t]own, ‘while encouraging development … in a manner which will protect these important characteristics.”' The Court wrote:

Rather than examining whether the variance would unduly conflict with basic zoning objectives by altering the essential character of the neighborhood, or by threatening the public health, safety and welfare, the ZBA relied upon the effect that the variance would have upon the [t]own's incipient plan to build a telecommunications tower elsewhere. This too was error.

The town argued that its telecommunications facility district ordinance does not permit telecommunications towers on both the town's property and the Chester Rod and Gun Club's property and, therefore, the variance would be contrary to the public interest and injurious to the public rights of others. The Chester Rod and Gun Club's property is not located in the telecommunications facility district and, the Court said, the record was unclear as to whether the telecommunications facility district ordinance applied, something the ZBA must determine.

The Court said the trial court's order to the ZBA to grant the variance was error because the trial court should act as an appellate court, not a fact finder. The Court said the trial court should have remanded the case to the ZBA to determine whether the variance should be granted based on the correct legal standard for determining whether the public interest criterion had been met.

The town argued that the ZBA, in finding that the variance would injure the public or private rights of others, had based its denial not only on the public interest criterion, but also on the unnecessary hardship criterion. However, the Court said the ZBA decision refers exclusively to the public rights of others and was again based on the 2001 warrant article vote. “We thus disagree with the [t[own that the ZBA found that granting the variance would injure the private rights of others.”

The Court reversed the trial court's order requiring the ZBA to grant the variance and ordered the trial court to remand the case to the ZBA for further consideration. Two justices dissented from the order of remand, arguing that the trial court's order to the ZBA to grant the variance should be upheld. The dissent argued that but for the town's lease agreement for a telecommunications tower on town land, the ZBA would have granted the variance and that the interests of judicial economy supported the trial court's order.

However, the majority said there was insufficient evidence in the ZBA's record to find that it would have granted the variance had the town not entered into a lease agreement for a telecommunications tower on town land.

Please be advised that the foregoing case summary is based upon a Supreme Court slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify the opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports.

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