New Hampshire Municipal Association
New Hampshire Municipal Association

Court Update

Court Upholds Variance Conditions

Michelle J. Robinson v. Town of Hudson
No. 2005-687, 12/20/2006

The petitioner owned a lot in a six-lot subdivision approved in 1970. The approved subdivision plan indicated that an existing cul-de-sac would be extended (the Mark Street Extension) to Wason Road. The Mark Street Extension was roughed out but never paved. The petitioner’s lot had only 50 feet of frontage on Wason Road, but the town had a 150-foot frontage requirement. The plaintiff applied for and was granted a frontage variance to which the ZBA attached four conditions.

The petitioner challenged two of the conditions, known as the “cost condition” and the “liability condition.” The cost condition required the property owner of record to pay a pro rata share of the cost of constructing the Mark Street Extension “[i]f and when” it is built. The liability condition required the petitioner to record at the registry of deeds a notice of the limits of municipal liability, specifically that the town did not assume responsibility for the maintenance of the Mark Street Extension or liability for damages resulting from its use.

The ZBA denied the petitioner’s motion for rehearing, and she appealed to the superior court, claiming that the cost condition was arbitrary because the terms “pro rata share,” “cost” and “built” were not defined. The petitioner also argued that the cost condition was unreasonable because she was the only lot owner required to contribute to the cost of Mark Street Extension and because it applied to the land owner, rather than the land, thus exceeding the ZBA’s authority. The petitioner also challenged the liability condition as unreasonable.

The superior court dismissed the petitioner’s argument that the cost condition was arbitrary for lack of defined terms because she had failed to raise the issue in her motion for rehearing before the ZBA. The lower court had found that the ZBA was concerned about potential safety issues if Mark Street Extension is never built because other lot owners might use the petitioner’s driveway to access their lots via the unfinished road. The lower court held that the cost condition was reasonable in that it was intended to encourage the owners of the subdivision property to construct Mark Street Extension. The lower court also held that the liability condition was reasonable and similar to one of the conditions upheld in Wentworth Hotel v. Town of New Castle, 112 N.H. 21, 28 (1972).

The petitioner appealed to the New Hampshire Supreme Court, which affirmed the lower court ruling. The Court reiterated previous case law holding that despite the fact that there is no express statutory provision permitting the ZBA to attach conditions to the grant of a variance, “reasonable conditions necessary to preserve the spirit of the ordinance” will be upheld and that “[c]onditions are reasonable when they relate to the use of the land and not to the person by whom such use is to be exercised.”

On the petitioner’s argument that terms of the condition were not defined, the Court agreed with the lower court’s dismissal of this claim, noting that RSA 677:3 requires the motion for rehearing to “set forth fully every ground upon which it is claimed that the decision or order complained of is unlawful or unreasonable” and prohibits a party from appealing a ZBA decision on grounds that were not set forth in the rehearing motion “unless the court for good cause show shall allow the appellant to specify additional grounds.” The Court held that the petitioner’s argument that the cost condition imposed an “unspecified” penalty on the lot owner is “not the same as arguing that the specific terms used in the condition are vague.” The Court held that the petitioner’s case was different from Colla v. Town of Hanover, 153 N.H. 206, 208-209 (2006), in which the Court held that the plaintiff in that case had met the statute’s requirements even though he submitted to the superior court identical questions raised in the ZBA motion for rehearing.

The Court dispensed with the petitioner’s argument that the cost condition was unreasonable because she alone was required to pay a pro rata share of constructing the road while other lot owners were not. The Court noted that the petitioner was not required to pay for the entire road, but only her share of the cost of construction if the road were built. The Court added that it was reasonable for the ZBA to consider the petitioner’s lot as part of a six-lot subdivision in which four of the lots were not buildable for lack of street frontage and that, but for the variance, her lot too would be unbuildable for lack of adequate frontage. The Court noted that the ZBA was concerned about safety, in that other lot owners could access their lots by way of the petitioner’s driveway rather than a completed Mark Street Extension, that the petitioner’s lot was unbuildable prior to the granting of the variance and that the cost condition did not render the lot worthless or drastically reduce its sale price. Therefore, the Court held, it was reasonable for the ZBA to impose on the petitioner her pro rata share of the cost of construction of the road.

The petitioner also argued that the cost condition was an impermissable monetary penalty aimed at her, rather than designed to regulate the use of the property. The Court disagreed, noting that the condition runs with the land and the requirement to pay a pro rata share of construction applied to “the owner of the lot at the time the road is constructed, whether the owner is the petitioner or another individual.”

Regarding the liability condition, the Court agreed with the town’s argument that requiring the property owner to record an acknowledgment of limited municipal liability for Mark Street Extension mirrors the requirement of RSA 674:41 and was a reasonable condition based on the town’s concerns for safety. The Court further noted that the requirement protects the town from liability for damages resulting from the use of Mark Street Extension. However, the Court said it would not express an opinion now about whether the condition would continue to be reasonable if construction of Mark Street Extension is completed.

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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