201 A.3d 65
N.H.2019Background
- Sawyer Point built two additions (1999 and 2008) to a lakefront house located inside Tuftonboro’s 50-foot lake setback; the Dietzes own the abutting property and later sued to enforce the setback.
- The 1999 addition expanded upward on an existing footprint; Sawyer Point obtained a building permit and the inspector noted “no change in footprint.”
- The 2008 addition included areas later found by survey to extend more into the setback than represented to the ZBA; Sawyer Point had obtained a variance from the ZBA for part of that addition.
- In 2014 the Dietzes sought injunction/removal under RSA 676:15; Sawyer Point applied to the ZBA for equitable waivers under RSA 674:33-a for the 1999 addition and for the small portion of the 2008 addition outside the scope of the variance.
- The ZBA granted the equitable waivers; the superior court upheld the grant on appeal, and the Dietzes appealed to the Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant / Sawyer Point Argument | Held |
|---|---|---|---|
| Whether RSA 674:33-a requires written findings by ZBA for equitable waivers | Dietzes: statute’s “if and only if the board makes all of the following findings” mandates written, itemized findings | Sawyer Point: statute requires findings but not a written recitation; implicit findings are sufficient | Court: No written-findings requirement; implicit findings suffice and minutes showed discussion of elements |
| Whether applicant must be ignorant of underlying facts to satisfy RSA 674:33-a(I)(d) | Dietzes: Sawyer Point admitted knowledge that 1999 addition was within setback, so I(d) not met | Sawyer Point: reliance on municipal official’s interpretation (permit) satisfies I(b) and renders I(d) satisfied as to facts of violation | Court: I(d) read in context — reliance on municipal error satisfies being “ignorant of the facts constituting the violation”; I(d) met here |
| Whether burden of proof shifted improperly to Dietzes at trial | Dietzes: trial court statement suggests burden shifted to them to disprove Sawyer Point’s awareness | Sawyer Point: ZBA had burden at hearing; on appeal Dietzes bore burden to show ZBA acted unreasonably | Court: No improper shift — Sawyer Point bore burden before ZBA; on appeal Dietzes bore burden to show error; trial court’s statement did not shift burden improperly |
| Proper scope of the I(d) cost-benefit balancing and evidence required | Dietzes: ZBA lacked evidence of correction cost; cumulative public benefit across town must be considered; cost to apply for variance should count | Sawyer Point: ZBA may rely on members’ knowledge and attorney representations; cost of demolition (not variance application) is relevant; scope is the specific violation | Court: ZBA reasonably relied on its experience and representations; cost of correction means physical correction (demolition) not mere variance application; cumulative townwide enforcement not required; upheld |
Key Cases Cited
- Harrington v. Town of Warner, 152 N.H. 74 (2005) (standard of review in zoning appeals)
- Pappas v. City of Manchester Zoning Bd., 117 N.H. 622 (1977) (implicit findings may support board decisions; written findings not always required)
- Property Portfolio Group, LLC v. Town of Derry, 163 N.H. 754 (2012) (statutory text controls whether express written findings or minutes must state a board’s basis)
- Biggs v. Town of Sandwich, 124 N.H. 421 (1984) (ZBA members may rely on their own knowledge, experience, and observations)
- Bacon v. Town of Enfield, 150 N.H. 468 (2004) (discussion of cumulative impact in variance context — not extended to equitable waivers here)
- Wolfgram v. N.H. Dep’t of Safety, 169 N.H. 32 (2016) (avoid statutory constructions that render provisions null or produce absurd results)
- Carrier v. Mayor, etc., 165 N.H. 719 (2013) (interpret statutes by text and avoid adding language the legislature omitted)