Cumulative Effect of a Use Relevant When Judging Spirit of Zoning Ordinance

W. Robert Foley, Trustee v. Town of Enfield
New Hampshire Supreme Court No. 2017-0294
Wednesday, February 28, 2018

On appeal to the NH Supreme Court, Robert Foley claimed the Enfield ZBA improperly denied a front yard setback variance due to an incorrect application of the spirit of the ordinance standard.  In addition, Foley argued the ZBA chair should have been disqualified due to a list serv posting by the Chair seeking comment on whether a ZBA should consider precedents when granting variances. 

Foley owns a .37 acre parcel on Crystal Lake, one of several parcels located on Rollins Point, a relatively narrow strip of land that protrudes into Crystal Lake. The properties are served by a private road known as Rollins Point Road. Foley sought to replace his seasonal, one-story cottage with a year-round, two-story house and an attached, two-car garage, and he requested a variance to allow him to construct the house within the 30-foot setback from Rollins Point Road, eight to ten feet from his lot line.

When the ZBA ruled the setback variance was contrary to the spirit of the ordinance, it concluded all of the properties on Rollins Point Road suffer from similar size and setback restrictions, and that granting the variance might encourage further crowding by other property owners.  The Supreme Court concluded that is was proper for the ZBA to consider the cumulative effect of granting similar variances in the future on Rollins Point when evaluating whether Foley’s variance was contrary to the spirit of the ordinance. 

Foley also claim that a list serv posting by the ZBA chair the day before the board issued its rehearing decision was an improper ex parte communication that violated his right to a fair hearing.  The chair of the ZBA had posted an inquiry on the list serv seeking comment on whether precedents can be considered when issuing a ZBA decision.  That posting received a number of responses from municipal employees and ZBA members from other communities.  The court ruled that there was no evidence the information received by the ZBA chair was prejudicial because the reason given for denial of the rehearing was the same reason given one month earlier, that by granting the variance this would promote overcrowding of the Rollins Point area.   

Practice Pointers:  When judging if a proposed variance would be contrary to the spirit of the ordinance, the ZBA can take into account the cumulative effect of granting similar variances in the future.  Where the receipt of information by a ZBA member is claimed to be prejudicial, the appealing party must at a minimum show it had a direct bearing on the outcome of a decision.   

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