Golf Course Investors of NH, LLC v. Jaffrey
No. 2010-167, 4/12/2011
In order to appeal an administrative decision to the zoning board of adjustment (ZBA), a person must have standing to appeal, that is to say, the person must be "aggrieved" by that decision. RSA 676:5, I. This case examines the factors to be considered when determining whether applicants have standing as "persons aggrieved" for purposes of an appeal to the ZBA. The ZBA cannot exercise jurisdiction over an appeal unless it finds that the appealing party is aggrieved according to RSA 676:5, I.
The property owner, Golf Course Investors of NH (GCI) sought subdivision and site plan approval to allow conversion of an existing building into a four-unit condominium with two detached garages. The planning board voted that a special exception was not required to allow the proposed four-unit condominium.
Seven residents appealed the planning board's decision to the ZBA, contending that the planning board allowed a smaller lot than was required by the zoning ordinance and, also, that a special exception was required. None of the seven applicants was an abutter as defined by RSA 672:3. At the ZBA public hearing, the applicants did not address the issue of how their property would be affected by the proposal. Instead, they discussed their concerns that the planning board had erroneously allowed "too much housing, being four condominium units, on too little land, being 1.75 acres, within the rural/mountain zone." In fact, they were actually in favor of the project, with the exception of the size of the proposed lot. During deliberations, it was noted that none of the applicants qualified as abutters and that only one had even attended the planning board hearing on the matter now being appealed. Nevertheless, the ZBA ultimately voted that the applicants were "aggrieved" and granted the appeal, finding that the special exception was required to allow the multi-family use. GCI appealed the ZBA's decision to superior court. The trial court ruled that the residents lacked standing to bring their appeal before the ZBA and vacated the ZBA's decision. The Town appealed to the Supreme Court.
To establish standing, an appealing party must show "some direct, definite interest in the outcome of the action or proceeding." Four factors are considered when determining whether a non-abutter has sufficient interest to confer standing: (1) the proximity of the appealing party's property to the property for which approval is sought, (2) the type of change being proposed, (3) the immediacy of the injury claimed and (4) the appealing party's participation in the administrative hearings. Weeks Restaurant Corp. v. Dover, 119 N.H. 541 (1979). Applying the four factors to the residents, the Court found that the residents failed to demonstrate that they were aggrieved. With regard to proximity, the residents' properties ranged from 450 feet to 2,400 feet from the GCI property. The type of change being proposed was not dramatic in that the footprint of the building was not being changed, and, importantly, the residents expressed their approval of the improvements proposed for the building. With regard to the immediacy of the injury claimed, the residents did not identify any injury they might face as a result of the planning board's approval. And only one of the residents even attended the planning board proceedings, and that participation was minimal.
This case illustrates the importance of findings of facts. The Court is obligated to accept the ZBA's factual findings as prima facie lawful and reasonable, "except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it that said order or decision is unreasonable." Here, the Court pointed out that the ZBA did not include any discussion of how they arrived at the conclusion that the residents were "aggrieved" and, thus, the Court was not obligated to defer to the ZBA's findings.
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