Written Findings of Fact to Support a Variance Not Required if not Requested, Provided There is Adequate Evidence in the ZBA Record; Allegations of Bias Must be Raised at the Earliest Opportunity

Rochester City Council v. Rochester Zoning Board of Adjustment
New Hampshire Supreme Court Case No. 2017-0501
Friday, September 7, 2018

The Rochester City Council objected to a use variance that was approved by the Rochester Zoning Board of Adjustment permitting the expansion of an existing manufactured housing park.  In 2014 the City Council had adopted a zoning amendment that eliminated manufactured housing parks as permitted uses in the City.  After that amendment went into effect, an existing manufactured housing park, Addison Estates, applied for a variance to be allowed to expand the park onto adjacent property.

In 2016 the ZBA granted that variance request, but in its written decision the Board did not explicitly address the unnecessary hardship requirement of RSA 674:33, I (b).  The City Council filed a motion for rehearing arguing it was illegal and unreasonable for the ZBA to approve a variance without clearly finding hardship.  That motion for rehearing was rejected by the ZBA.  On appeal to the Superior Court the City sought to expand the ZBA certified record to support an allegation of bias and conflict of interest by the ZBA Chair.  The City also principally argued that the ZBA’s decision was erroneous because it neither seriously considered the hardship question, nor made written findings of fact on the hardship issue.   

The Superior Court ruled the ZBA record could not be expanded to address issues of bias because that question was not timely raised before the ZBA depriving the Board of the opportunity to correct any error in its proceedings.  On the question of written findings on the hardship issue the Court ruled that since no request for a hardship finding was made before the ZBA, the Court’s duty on appeal was to examine the record and determine whether the evidence supports the ZBA’s decision.  On that score the Superior Court was satisfied the ZBA could have reasonably concluded that since the subject parcel that was adjacent to the Addison Estates manufactured housing park, in light of the removal of manufacture housing parks from the list of permitted uses under the Rochester Zoning Ordinance, that this constituted a special condition making the property unique for the purposes of the variance. 

On appeal the Supreme Court ruled in favor of the ZBA finding that even though the ZBA did not explicitly address unnecessary hardship in its written decision, unnecessary hardship was addressed in the variance application, and the ZBA discussed whether the applicant demonstrated unnecessary hardship.  The Court also ruled that when the Superior Court reviews a ZBA decision that it finds to be unclear the court could conduct its review based upon the decision and record before it, take additional evidence, or remand the case to the ZBA for clarification.  Although the trial court here could have taken additional evidence or remanded to the ZBA for clarification if it found the decision to be unclear, the Supreme Court was satisfied that it was within the discretion of the Superior Court to conduct its review based on the ZBA decision and record before it.

On the issue of taking additional evidence on the alleged bias of the ZBA Chair, the Supreme Court agreed with the trial court that the question of bias or conflict of interest was not raised in a timely fashion by the City.    

View Court Decision Here!