New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Evidence Supported ZBA Decision

A.D. McKibbin v. City of Lebanon
No. 2001-742, 1/21/2003

This is another 5-0 decision by the Court, but this case involved the granting of a special exception, rather than a variance. In this case, Bayson Properties owns 10 acres in the city’s general commercial district and proposed construction of a 56,000 square foot grocery store with a 302-space parking lot. The property is also within the city’s wetlands conservation district. The zoning ordinance requires a special exception in order to erect a structure in the wetlands conservation district, but first the applicant must prove, among other things, that due to the wetlands conservation district provisions, no reasonable use of the lot can be made without the wetlands exception. The Lebanon ZBA agreed with the developer that other uses of the lot were not reasonable and granted the special exception with certain conditions.

After his request for a rehearing was denied, the plaintiff appealed, arguing that the evidence revealed other reasonable uses of the property that did not require a special exception. The trial court upheld the ZBA’s decision to grant the special exception, in essence holding that the ZBA interpreted the wetlands conservation district ordinance correctly. Interestingly, however, the trial court relied on Simplex v. Town of Newington, 145 N.H. 727 (2001), which established the unnecessary hardship standard that applies to variances, for its finding that a literal interpretation of the wetlands conservation district ordinance would be contrary to the property owner’s constitutionally protected property rights.

The plaintiff appealed to the Supreme Court, arguing, among other things, that the trial court erroneously relied on Simplex and erroneously upheld the ZBA’s decision that no reasonable use could be made of the property without affecting wetlands.

The Court focused only on the latter of these arguments, holding that the evidence considered by the ZBA was sufficient to support its decision that the property owner complied with the wetlands conservation district ordinance by showing that no other reasonable use of the property could be made without the wetlands exception. The Court relied on the traditional principles of statutory construction, which also apply to municipal ordinances, in supporting the ZBA’s interpretation of the wetlands conservation ordinance. According to these rules of statutory construction, “words and phrases of an ordinance should be construed according to the common and approved usage of the language.” The Court noted that all the parties had agreed that a literal interpretation of the ordinance did not mean that the applicant had to disprove all other uses of the lot except its proposed use.

Other evidence deemed sufficient to uphold the ZBA’s finding that there was no other reasonable use of the land without the wetlands exception included: the large size of the lot with numerous pockets of wetlands scattered throughout; its location in the commercial district bordering two automobile dealerships, two bank branches and a clinic; lack of access from the state highway (Route 120); and lack of visibility from the road. A real estate expert had testified that the limited access and lack of visibility from the road required a large building like a supermarket and that small stores would not be visible from the highway. Evidence before the ZBA indicated that any large use would impact the wetlands to some degree, that the impact from the proposed use would be minimal and that the project had the recommendation of the Lebanon Conservation Commission.

Because this evidence supported the ZBA’s decision to grant the special exception, the Court declined to address the trial court’s reliance on Simplex.

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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