Pеter Wyman obtained a variance from the Town of Warner Zoning Board of Adjustment (ZBA) to expand his current manufactured housing park, Pleasant Lake Estates, to include twenty-five additional sites. The abutting landowners, petitioners John R. and Fernanda Harrington (abutters), appeal from an order of the Superior Court (,Smukler, J.) affirming the ZBA’s decision. We affirm.
The following facts were found by the trial court or are evident from the record. Pleasant Lake Estates is located on a forty-six-acre parcel of land in Warnеr that is zoned as a medium density residential district (R-2). The park currently utilizes twenty-six acres of the property and consists of thirty-three manufactured homes and fifty-four campground sites. Wyman sought to expand Pleasant Lake Estates by adding twenty-six additional manufactured homes on the remaining twenty acres of the property. Article XIII, section E of Warner’s zoning ordinance pertains to manufactured housing parks and provides:
Where Allowed: Manufactured housing parks shall be allowed in all but thе commercial district (Cl) and Business district (Bl) and consist of a minimum of 10 acres and at least two (2) sites. The maximum number of sites shall not exceed 25. Housing sites shall not include wetlands, water bodies, roads, severe slopes or open space on individual sites.
Warner, N.H., Zoning Ordinance art. XIII, § E(l) (2002). Wyman sought a variance for the expansion because the respondent Town of Warner (Town) was uncertain whether his proposal was permitted under the zoning ordinance.
Following two public meetings аnd a site walk, the ZBA voted to grant the variance but limited the expansion to twenty-five additional sites to be added at the rate of five lots per year. The abutters appealed the ZBA’s decision. Following a hearing, the trial court ruled that the ZBA acted reasonably and lawfully in concluding that Wyman met his burden of establishing the criteria necessary for a variance. This appeal followed.
The abutters argue that the trial court erred in affirming the ZBA’s decision to grant the varianсe because Wyman failed to satisfy the criteria for a variance. Specifically, the abutters argue that Wyman: (1) failed to show unnecessary hardship; (2) created any financial hardship he suffered because the zoning restrictions preceded his purchase of the property; (3) failed to show that the variance was consistent with the spirit of the ordinance; (4) failed to show that the variance did not derogate from the intent or purpose of the ordinance; and (5) failed to show that substantial justice would be done in granting the variance.
Our review in zoning cases is limited. Hill v. Town of Chester,
Our cases interpreting RSA 674:33,1(b) (1996) have long recognized a five-part test for the granting of variances. See, e.g., Ryan v. City of Manchester Zoning Board,
A. Unnecessary hardship
We first address the abutters’ argument that the trial court erred in ruling that the ZBA acted lawfully and reasonably in finding that Wyman met his burden of showing unnecessary hardship. Our recent decisions have attempted to clarify the unnecessary hardship standard.
In Boccia v. City of Portsmouth,
When, however, an applicant seeks a use variance, the standard set forth in Simplex Technologies v. Town of Newington,
A use variance allows the landowner to engage in a use of the land that the zoning ordinance prohibits. Id. at 90. Use variances pose a greater thrеat to the integrity of a zoning scheme because the fundamental premise of zoning laws is the segregation of land according to uses. Bacon v. Town of Enfield,
An area variance is generally made necessary by the physical characteristics of the lot. Boccia,
The critical distinction between area and use variances is whether the purpose of the particular zoning restriction is to preserve the character
The interpretation of a zoning ordinance is a question of law, which we review de novo. Duffy,
As set forth above, article XIII, section E of the Town’s zoning ordinance provides that manufactured housing parks “shall be allowed in all but the commercial district (Cl) and Business district (Bl) and consist of a minimum of 10 acres and at least two (2) sites. The maximum number of sites shall not exceed 25.” Warner, N.H., Zoning Ordinance art. XIII, § E(l).
The plain language of the ordinance appears to fix the maximum number of manufactured housing sites in a park at twеnty-five for any parcel of land ten acres in size or larger. This interpretation is supported by another section of the zoning ordinance, which regulates manufactured housing subdivisions with essentially identical language. See Warner, N.H., Zoning Ordinance art. XIII, § F. Under that section, a subdivision must consist of a minimum of twelve acres, and “[t]he maximum number of lots in any manufactured housing subdivision shall not exceed 25.” Id. at § F(0), (2) (emphasis added). By the express terms of this ordinance, the size of a manufactured housing subdivision is limited to twenty-five, regardless of the underlying acreage.
Considering the language of these similar provisions, we hold that the ordinance is unambiguous. See Duffy,
Moreover, Warner’s overall zoning scheme segregates land by intensity of use. WARNER, N.H., ZONING ORDINANCE art. II. For instance, there are three residential districts: village, medium density and low density. Id. Within these districts, a two-family dwelling is a permitted use in the village and medium density residential districts. Id. tbl. 1. A two-family dwelling, however, is only allowed in the low density district by special exception. Id. The zoning ordinance is more restrictive with regard to two-family dwellings in the low density district, thereby preserving the character of the neighborhood by restricting a more intensive use of land. Thus, the overall zoning scheme reveals an intent to segregate land by both the types of uses and the intensity of the use. Accordingly, given the language and purpose of the zoning ordinance, we conclude that the provision limiting the number of sites to twenty-five is a use restriction.
Having concluded that the variance at issue is a use variance, we now turn to the appropriate standard for unnecessary hardship. Generally, a use variance requires a greater showing of hardship than an area variance because of the potential impact on the overall zoning scheme. Bacon,
First, Simplex requires a determination of whether the zoning restriction as applied interferes with a landowner’s reasonable use of the property. Simplex,
Next, Simplex requires a determination of whether the hardship is a result of the unique setting of the property. Simplex,
Finally, Simplex requires consideration of the surrounding environment. Id. This includes evaluating whether the landowner’s proposed use would alter the essential charаcter of the neighborhood. Matthew,
In this case, the following evidence was introduced before the ZBA regarding unnecessary hardship. In his variance application, Wyman stated that the variance to expand the mobile home park was necessary for two reasons: (1) the twenty acres would be “totally unusable” without the variance; and (2) expanding the park would allow for additional income so that he could provide affordable housing and keep the community clean.
In applying the Simplex standard to these facts, we are mindful that we do not act as a super zoning board. Britton v. Town of Chester,
Here, sufficient evidence supports the trial court’s determination that the ZBA acted reasonably in finding that Wyman met his burden of proving unnecessary hardship. Although Wyman’s unsupported conclusion that, without the variance, he might have to let the property “go back to the previous owner” does not warrant the granting of a use variance, see Boccia,
We first look to the evidence supporting the conclusion that the zoning restriction interferes with Wyman’s reasonable use of the property. Most significant to our analysis is that manufactured housing parks are a permitted use in the R-2 zone. This fact is entitled to considerable weight
Next, the evidence supporting the conclusion that the hardship is a result of unique conditions of his property includes: (1) Wyman is unable to subdivide because he has insufficient road frontage; (2) constructing a road that would provide adequate frontage is “almost impossible” because of the current location of the campground, the existing mobile home park and the presence of swamp lands; and (3) the improvements to the private road that services the park would not remedy the inadequacy in road frontage.
Finally, the ZBA considered the impact such a large expansion would have on the character of the area, including the impact on the schools, increased traffic, the availability of affordable housing, and the potential of reviving an undesirable areа of town. The ZBA also conducted a site walk. In granting the variance, the ZBA implicitly found that the expansion of the park would not adversely affect the character of the area. Notably, the ZBA limited the expansion to five new lots per year in order to lessen the impact on the schools. Moreover, no evidence to the contrary was introduced. Accordingly, the trial court did not err in concluding that the ZBA acted reasonably in finding that Wyman met his burden of proving unnecessary hardship.
B. Self-created hardship
Next, the abutters argue that because the zoning restrictions preceded Wyman’s purchase of the property, he is not entitled to a variance absent special circumstances. We disagree.
In Hill v. Town of Chester, we addressed the effect a purchase with knowledge of zoning restrictions has on an applicant’s ability to demonstrate unnecessary hardship. Hill,
Good faith can be established in several ways: showing that the owner has complied with the rules and procedures of the ordinance; showing that the owner has attemptеd to use other alternatives to relieve his hardship prior to requesting a variance; showing that the owner had relied on the representations of zoning authorities or builders; or showing that the owner had no actual or constructive knowledge of a requirement, violation, or limitation on land that he purchased.
Id.; see also Badish v. O’Regan,
Here, Wyman was advised by a letter from the town selectmen prior to purchasing the property that the mobile home park could be expanded, subject tо compliance with building ordinances and planning board approval. In addition, Wyman raised the issue of the provision limiting mobile home parks to a maximum of twenty-five sites with the ZBA. The ZBA was uncertain whether the provision allowed twenty-five sites per ten acres of land or whether the provision was an absolute maximum and thus advised Wyman to seek a variance for the proposed expansion.
The record unequivocally establishes that Wyman acted in good faith in following the zoning ordinance and in seeking a variance. Wyman did not create the hardship because of his “failure to plan properly.” Hill,
C. Other variance criteria
Next, the abutters argue that the trial court erred in ruling that the ZBA acted lawfully and reasonably in finding that Wyman met his burden of showing that the variance was consistent with the spirit of the ordinance, did not detract from the intent or purpose of the ordinance and that substantial justice would be done in granting the variance. We disagree.
Based upon the record of the ZBA hearings, we conclude that sufficient evidence supports these rulings. At the hearings, Wyman showed that the
In addition, Wyman showed that substantial justice would be done in granting the variance because it would improve a dilapidated area of town and provide affordable housing in the area. Specifically, Wyman explained that all of the lots will meet the minimum size and setback requirements, will be surrounded by a tree buffer, will only allow the use of newer mobile homes and will have upgraded septic systems. Accordingly, the trial court did not err in concluding that the ZBA acted lawfully and reasonably in finding that Wyman met his burden of proving that the variance was consistent with the spirit of the ordinance, did not detract from the intent or purpose of the ordinance and that substantial justice would be done in granting the variance.
II. Adequate Record
Next, the abutters argue that the trial court failed to provide an adequate basis for appellate review of its decision. Specifically, the abutters argue that, under RSA 491:15 (1997), the trial court’s order was inadequate because the court failed to rule on the proposed findings and rulings and failed to address critical legal and factual issues in its narrative order. We disagree.
RSA 491:15 provides: “The court ... shall, if either party requests it, give his decision in writing, stating the facts found and his rulings of law, which shall be filed and recorded.” In interpreting RSA 491:15, we have held that
althоugh a superior court justice sitting without a jury is generally under no obligation to make findings and rulings in support of a decree unless a party asks for them, when either party does request them, RSA 491:15 requires a statement of facts and legal rulings in jury-waived and non-jury cases. The trial judge in such a case need not respond expressly to every specific request filed by a party, but the court is obligated to make findings of the basic or essential facts that are sufficient to support the ultimate deсision. This may be done in the narrative form, and the essential rulings of law may be likewise explained.
Here, the trial court made a narrative order setting forth the relevant facts, the standard of review and the applicable law for granting variances. The order reviewed the minutes of the ZBA’s meetings and discussed the evidence presented on each of the requirements for a variance. The court then concluded that because the record supports the findings on аll the pertinent factors, the ZBA’s decision was both reasonable and lawful.
The trial court’s order sets forth both sufficient findings of fact and essential rulings of law to support the ultimate decision. See id. Although the trial court did not rule on the abutters’ proposed findings and rulings, “the trial judge ... need not respond expressly to every specific request filed by a party.” Id. Accordingly, the trial court did not fail to provide an adequate basis for appellate review of its decision.
Affirmed.