Equivocal Public Safety Evidence Did Not Support Denial of a Variance on the Issue of Public Safety

46 Martin Road, LLC v. Town of Epping
Housing Appeals Board Case No. ZBA – 2022-16
Monday, December 5, 2022

46 Martin Road LLC (hereinafter Martin Road) applied for and received four variances and one special permit for a 315 rental unit project, but was denied a fifth variance for the height of the proposed structure.  Martin Road sought a variance to build a three-story structure where Epping’s zoning ordinance only permitted two habitable stories. The Epping ZBA’s notice of decision stated the request for three habitable stories was denied and referred to the Board’s public meeting minutes for specific details.

On appeal to the Housing Appeals Board (hereinafter HAB) Martin Road first argued the ZBA’s decision was unlawful because it failed to provide written reasons for the disapproval.  The HAB reviewed the ZBA’s minutes and concluded it could be reasonably discerned that the variance was denied on the basis of public interest related to safety concerns.  Based on that finding the Board denied the request that the ZBA decision was unlawful based on the failure to provide written reasons for disapproval. 

The HAB instead focused on whether there was evidence in the record to support the board members’ conclusions on whether the variance will not be contrary to the public interest.  The NH Supreme Court’s decision in Harborside Assocs., L.P. v. Parade Residence Hotel, 162 N.H. 508 (2011) provides that this requires a determination whether by granting the variance that this would unduly and in a marked degree conflict with the zoning ordinance such that it violates the basic zoning objectives.  Because the ZBA had received equivocal testimony and written submissions from the Epping Fire Department, including whether Martin Road would contribute to the cost of an aerial firefighting vehicle, the HAB concluded the hearing record did not reasonably support the ZBA’s decision on the issue of public interest.   

The HAB reversed the ZBA’s decision and granted the variance to permit three habitable stories.  The HAB denied Martin Road’s request for an award of damages, as the HAB did not find any bad faith conduct by the ZBA to warrant an award of costs under RSA 677:14 or attorney’s fees under Harkeen v. Adams, 117 N.H. 687 (1977).


Additional Information: 

Practice Pointer:  When addressing the question of public interest the two established pathways to determine whether a variance will violate a zoning ordinance’s basic zoning objectives are to examine: (1) whether the variance would alter the essential character of the neighborhood; and (2) whether the variance would threaten the public health, safety, or welfare.