The property owners applied to the Hampstead Zoning Board of Adjustment (ZBA) for a special exception to construct a second floor addition to their lakefront cottage. The special exception was necessary because the cottage is on a nonconforming lot, and the Hampstead Zoning Ordinance requires a special exception to alter or enlarge a structure on a nonconforming lot. The ZBA granted the special exception over the objections of an abutter whose home is located across the street from the cottage. The Housing Appeals Board (HAB) affirmed this decision and the abutter appealed to the NH Supreme Court, which reversed because it determined the special exception should not have been granted.
When an applicant seeks a special exception, they are legally required to present sufficient evidence to support a favorable finding by the ZBA on each of the special exception requirements set out in the zoning ordinance. The ZBA may not waive or vary any of those requirements when deciding an application for special exception. (If the applicant wants any the requirements waived or varied, they have to apply for a variance and satisfy the 5 variance criteria instead).
The Hampstead Zoning Ordinance contains two requirements that an applicant must satisfy to obtain a special exception: (1) the project will be within the spirit and intent of the ordinance, and (2) the project will not result in a diminution of surrounding property values. However, the applicants in this case presented no evidence to the ZBA regarding either of these criteria and did not even mention them during the hearing. In contrast, the abutter testified at the hearing that the proposed second story addition would obstruct her view of the lake and introduced photos of her current lake view. The abutter also quoted the special exception criteria and asserted that neither were satisfied. The applicants offered nothing to rebut this evidence. After the hearing, the ZBA granted the special exception but included no “specific findings of fact” in the written notice to support this decision as required in RSA 676:3, I.
On appeal, the applicants argued to the Supreme Court that the abutter’s photos provided the ZBA with enough information to reach a reasonable conclusion about whether the project would diminish the abutter’s property value. However, the Court disagreed, focusing instead on the fact that the applicants presented no evidence or arguments at all to rebut the abutter’s claims. The Court concluded that the applicants had simply failed to meet their burden of proof to demonstrate that each of the two criteria were satisfied
because they had presented no evidence. As a result, the ZBA did not have sufficient information before it to make the required findings on those criteria. This conclusion was consistent with prior opinions in cases where the only evidence before the ZBA regarding a diminution of property values came from abutting owners who testified that a project would reduce the value of their properties. Barrington East Owners’ Assoc., 121 N.H. 627 (1981) (special exception); Hussey v. Town of Barrington, 135 N.H. 227 (1992) (variance).
The Court also rejected the applicant’s other argument, which was that the Zoning Ordinance granted the ZBA extra discretion to decide whether the special exception criteria were satisfied, and changed the standard of review on appeal, because it said “in the view of the Board….” The Court concluded that the ordinance language did nothing to change the legal standard, which is that the ZBA must make the specific finding that each criterion is satisfied. In this case, the ZBA had to make the specific finding that surrounding property values would not be diminished, and this finding had to be supported in the record by evidence upon which it could reasonably have been based. As the required evidence was lacking in this case, the Court concluded that the ZBA’s decision was unreasonable.
This case involved a ZBA decision that was substantively flawed because it was not based upon evidence from which the ZBA could reasonably have reached the conclusions that it did. However, it is worth noting that, even if the decision itself had been correct, the HAB could have reversed it under RSA 676:3, I because the ZBA failed to include in its written notice of decision “specific written findings of fact that support the decision.”
READ MORE IN COURT DECISION ON PRELIMINARY INJUNCTION!
Practice Pointer: If an applicant presents no evidence to the ZBA regarding the specific criteria set forth in the zoning ordinance for a special exception but opposing parties present evidence that the criteria have not been met, the ZBA generally should not grant the special exception despite that evidence. In addition, in every situation, it is critical that the notice of decision issued by the ZBA include specific written findings of fact that support the decision, and that those findings be supported by evidence in the record.