132 N.H. 48 | N.H. | 1989
The defendant, the Town of Farmington, appeals a Superior Court (Contas, J.) order reversing a decision of the zoning board of adjustment (ZBA) denying the plaintiffs’ application for a variance. The town contends, inter alia, that the plaintiffs failed to establish before either the ZBA or the trial court that they were entitled to a variance. We agree with the town, and therefore reverse the trial court’s order.
Randall and Donna Goslin reside at and own 11.8 acres of land on Dream Hill Terrace in Farmington. Their lot is part of a six-lot subdivision, each lot being of approximately equal size, which the Farmington Planning Board approved in 1976. Dream Hill
In 1978, the plaintiffs and other landowners made $11,500 worth of improvements to Dream Hill Terrace. These improvements included widening the road, adding culverts, and laying gravel, but not paving. The lot owners obtained a written statement from the town’s road agent, Carl Baldwin, which read: “This is to certify that Carl Baldwin, road agent, approves [the] gravel road located on Dream Hill Terrace, Farmington, N.H., as up to standards for gravel road in Farmington, N.H.” Plaintiff Randall Goslin testified at trial that he and the other landowners were led to believe that the road improvements and the road agent’s certification of compliance with gravel road standards would satisfy the condition on the plat.
Jane Cooper Fall, a member of the Farmington Planning Board since 1976, testified that town regulations require the plaintiffs’ road to be paved before it can be accepted, although the written regulation mentioning that requirement is not in the trial record.
The differences between the plaintiffs’ and the town’s understandings of what satisfied Farmington’s road specifications and of the meaning of the condition on the subdivision plat came to a head when the plaintiffs wanted to subdivide their 11.8 acres into four lots, three of which they would give to their children. On March 10, 1987, the town adopted an amendment to its land use ordinance requiring subdivisions of two or more lots to have a certain amount of frontage, depending on the lot size, on a Class V or better road, or on a private road built to town standards. See RSA 229:5, VI (defining a Class V road). Two days later, the plaintiffs applied to the ZBA for a variance from the amended ordinance. See RSA 674:33, 1(b). The ZBA, after a hearing on April 2, 1987, denied the variance.
In reviewing a denial of a variance, the trial judge must accept the ZBA’s findings as prima facie lawful and reasonable, and the judge may reverse the decision only for errors of law or if, by a balance of probabilities on the evidence before the court, the decision is unreasonable. RSA 677:6; Rowe, 131 N.H. at 428, 553 A.2d at 1333. After a one-day trial, the court concluded that the ZBA’s denial of the plaintiffs’ application for a variance worked an unnecessary hardship because the plaintiffs were left with only one buildable lot on 11.8 acres of land. The court stated that the ordinance unduly restricts the plaintiffs’ use of their land and, in conclusory fashion, observed that “the restriction is due to special conditions unique to their land.” The court also ruled that granting the variance would do substantial justice to the plaintiffs, as they justifiably had relied on the road agent’s certification. Finally, the court held that the variance would not be contrary to the spirit and intent either of the road frontage amendment specifically, or Farmington’s land use ordinance generally. The court later denied the town’s motion to set aside the decree, prompting this appeal.
In this case, the plaintiffs point to two factors which they claim justify a finding of unnecessary hardship. Most important, according to the plaintiffs, is that their property is situated on a road built to meet all the town’s specifications for road construction, with the exception of being paved. Second, they claim that financial hardship, while not alone sufficient to justify a variance, may become so unduly oppressive because of conditions unique to the property that a variance must be granted if it would not adversely affect the public interest, would observe the ordinance’s spirit, and serve justice. See Carter v. Nashua, 113 N.H. 407, 419, 308 A.2d 847, 855 (1973). They argue that the estimated $56,000 cost of paving Dream Hill Terrace is unduly oppressive.
The facts of this case do not compel or warrant a finding of unnecessary hardship. First, the plaintiffs may use their lot for the residential and agricultural uses for which it is zoned. That they currently have only one buildable lot instead of four does not create a hardship when the land can still be used in a way permitted by the ordinance. See Margate Motel, 130 N.H. at 94-95, 534 A.2d at
In light of our reversal of the trial court’s finding of an unnecessary hardship, we do not need to address the court’s findings on the other variance variables, see Rowe, 131 N.H. at 429, 430, 553 A.2d at 1334, 1335 (each factor for variance must be satisfied), nor do we need to address the other arguments raised by the parties.
Reversed.
All concurred.