Opinion
No. 4843.
Argued September 7, 1960.
Decided October 4, 1960.
1. In an appeal from the zoning board of adjustment the Superior Court is authorized (RSA 31:82, 85) to receive evidence in addition to that presented before the zoning board, and the receipt of such evidence presents a preliminary question for the court to determine whether such evidence tends to show that the order of the board was unjust or unreasonable.
2. Where the Superior Court set aside the decision of the board of adjustment for lack of any evidence to support it, the receipt of evidence by the court in addition to that offered before the board did not prejudice the rights of the party in whose favor the board had ruled.
3. The statute authorizing the granting of a variance from the terms of a zoning ordinance for "unnecessary hardship" (RSA 31:72 III) is not designed to afford relief to a mere option holder of land as to which the use variance is sought.
4. In a zoning appeal from the decision of the board of adjustment the Trial Court did not err in considering defendant's land in its entirety rather than only the particular portion thereof as to which a use variance was sought on the ground of unnecessary hardship.
APPEAL, under RSA 31:77 to the Superior Court from a decision of the zoning board of adjustment of the city of Nashua, brought by the plaintiffs against the defendants, city of Nashua and Grand Union Company, objecting to the granting of a variance to the company. The permit allowed the defendant to erect in a Class A residence zone a shopping center "240' x 125'; a tower 25' x 25' x 40' high and one sign 40' x 60'. Also to provide for 250 parking stalls, all on a lot 300' x 900' subject to the restrictions `that 20' of natural vegetation (trees and shrubs) remain on the south and no other entrance but Concord Street be allowed.'" The initial request for a variance by the Grand Union Company was denied by the board on the day after the hearing. On rehearing pursuant to a motion by the defendant company, the variance was granted. A subsequent motion for rehearing by the plaintiffs was later denied. After hearing before the Superior Court, which took a view, the decision of the board was set aside, and the defendants appealed to this court.
At the trial, the defendants objected to the admission and exclusion of evidence and at the close of the plaintiffs' case, they excepted to the denial of their motion that the appeal be dismissed. After the decree, they excepted to the denial of their motion to set it aside and to the Court's rulings of law and findings of fact on the grounds that they were against the law, the evidence, "the weight of law" and "the weight of evidence."
The Court made the following findings of fact and rulings of law:
"The one applying for the variance is the Grand Union Company. It holds an option to buy the land involved . . . and that land is owned by Alexander and Delia Simoneau. Although the Simoneaus did not directly apply for the variance themselves, they signed a written consent, and Mr. Simoneau stated at the first hearing before the Board that he was requesting a variance. It is found that the Grand Union Company, when it applied for the variance, was acting not only for itself but also as agent for the Simoneaus.
"The variance granted by the Board of Adjustment allows a building 240' by 125' with a tower 25' by 25' and a sign 40' by 60'. The building would contain a super market and later, if not at first, several small stores such as a drug store and a dry goods store. The district where the land is situated, a single family residence district, is the most restricted district under the Nashua Zoning Ordinance.
"The Simoneau lot is situated on the easterly side of Concord Street, is bounded on the south by land of Roland and Julia Conery, two of the appellants, on the north by land of the Public Service Company, and on the east by land owned by individuals. The land is undeveloped, except that there is a rough gravel road which runs from Concord Street through the Simoneau lot and then through the land that abuts the Simoneau lot on the east, to Lafrance Avenue. This road lies partly on the northerly half of the lot and partly on the southerly half. The lot is about 325' wide on Concord Street, and becomes wider as it goes easterly; it is about 900' deep. The Grand Union option covers the entire lot, but the application for a variance, and the permit, relate only to that part of the lot within a distance of 500' from Concord Street.
"The Simoneau lot is situate in a large single family residential district. That part of the district in which the lot is situate extends northerly at the northeasterly corner of the district, is about 1600' wide from cast to west, is bounded westerly by Concord Street, on the other side of which is a suburban district, easterly by a railroad right of way, on the other side of which is an industrial district, and northerly by the Town of Merrimack, which has no zoning; this makes up a small section of the district of which it is a part . . . .
"Taking everything into consideration, this district, in so far as was seen on the view, appears to be the type of district it has been zoned, that is, single family residence . . . .
"The next question is whether there is evidence to support the requirement of unnecessary hardship . . . .
"There was no evidence as to what the Grand Union Company would pay the Simoneaus if that company exercised its option to buy. There was no evidence as to what the Simoneaus had invested in their lot. There was no evidence from which it could be found that the Simoneaus would suffer a loss if they sold for house lots the land suitable for that purpose and applied the balance to such use, if any, as they could. Nor was there any evidence from which it could be found that the Simoneaus would realize less if they sold for house lots the land suitable for that purpose and applied the balance to such use, if any, that it might be adaptable to, than they would if they sold the entire lot, or a part of it, to the Grand Union and applied any remaining balance to such use, if any, that it might be adaptable to with the shopping center on the westerly part.
"The Grand Union is not an owner, but an option holder.
"If a variance is not granted, the Grand Union Company will not have to buy the property, and the only hardship it will suffer is the loss of whatever it paid for the option and the loss of the opportunity of being able to open a shopping center building at this location; also, it will have to accept some less suitable location and may, in fact, be unable to find another suitable location in this city. These are not hardships to be relieved by the granting of a variance; they are not hardships resulting `because of conditions of the property distinguishing it from other property similarly located.' Actually, the Grand Union, if the permit is denied, and they do not acquire the property, will thereby be protected from any hardship resulting from the conditions of the property distinguishing it from other property . . . . `There can be no such deprivation where one such as the applicant is without any incident of ownership.' It is therefore found and ruled that there is no evidence on which it could be found that the Grand Union Company will suffer any hardship within the meaning of the hardship requirement, if the variance is disallowed.
". . . . Since it is a question whether a restriction upon use when applied `to a particular property' results in unnecessary hardship . . . the complete results of the application of the restriction to the particular property, in so far as they have a bearing upon hardship, must be considered; in this case the `particular property' is the Simoneau lot, and the complete results of the application of the residential restriction to that lot must be considered in determining whether the Simoneaus will suffer any hardship . . . .
"As already pointed out, there is no evidence to warrant a finding that the Simoneaus will be any better off to sell to the Grand Union than they would be to sell for house lots the land suitable for that purpose in its present condition, and then apply the balance of the land, in its present condition, to such uses, if any, as they can. There is no evidence which warrants a finding that the Simoneaus will suffer a loss by selling of house lots, to the extent that the land is now suitable for house lots, and applying the balance to such use, if any, as they can; nor is there any evidence which would warrant a finding that it is not feasible to do so. In addition, there isn't any evidence which would warrant a finding that the Simoneaus cannot, without hardship, apply the lot to some of the uses, other than residential, allowed in a single family residence district.
"This is not a case where the property is `absolutely valueless unless used for a commercial purpose'. . . nor where there is evidence that the owner will suffer a loss if the permit is not granted . . . nor a case where the question is not as to the existence of hardship, but whether the hardship is unnecessary. It is therefore found that there is no evidence from which it could be found that the Simoneaus will suffer any hardship, within the meaning of the hardship requirement . . . .
"The foregoing findings and rulings automatically dispose of the remaining claim that the Board had no right to change its decision.
"It is ruled, as a matter of law, that there is no evidence that the denial of a variance will result in unnecessary hardship to anyone whom it is the purpose of the statute, the ordinance or the hardship requirement to protect. Consequently, the decision of the Board is one which must, by virtue of R.S.A. 31:78, be set aside.
"It is therefore ordered that the decision of the Board of Adjustment be set aside."
Other facts appear in the opinion.
Transferred by Keller, J.
Clancy O'Neill and Aaron A. Harkaway (Mr. Clancy orally), for the plaintiffs.
Sullivan Gregg and Sherman D. Horton, Jr. (Mr. Horton orally), for the defendants.
The defendants' first contention is that the Court erred in the hearing before it in permitting the plaintiffs to introduce evidence which had not been presented to the zoning board of adjustment. It is true, as the defendants claim, that there is now no trial de novo before the Court under RSA 31:78. Gelinas v. Portsmouth, 97 N.H. 248, 249.
However, RSA 31:82 states: "All evidence transferred by the board of adjustment. . . shall be, and all additional evidence received may be, considered by the court regardless of any technical rule which might have rendered the same inadmissible if originally offered in the trial of an action at law." Courts have often taken a view in zoning appeal cases, regardless of whether one was taken by the board, and such evidence is often significant. Suprenant v. Nashua, 101 N.H. 43, 45. The 1949 amendment (Laws 1949, c. 278, s. 2) which changed the procedure in some respects on appeals did not change RSA 31:85 which provides in part that "the court may take evidence . . . ." No limitation on this procedure is expressed or implied anywhere in RSA ch. 31, and s. 82, in stating that "All additional evidence received may be, considered by the court," unquestionably contemplates that the Court may receive additional evidence. Cf. RSA 541:14. Neither in the Gelinas nor the Suprenant cases, relied upon by the defendants, did our court adopt any contrary doctrine, as this would clearly have been in derogation of section 82. In the Gelinas case we noted that "Great liberality in the admission of evidence is the policy of the Legislature in these cases." Id., 252. This rule applies to proceedings both before the board and the Superior Court. However the receipt of additional evidence by the Superior Court on appeal presents a preliminary question for that court as to whether the proffered evidence tends to show that the order of the board was unjust or unreasonable. RSA 31:78. In this case, the Trial Court set aside the decision of the board for lack of any evidence to support it. It follows that additional evidence received by the Court cannot be said to have prejudiced the defendants' rights. The defendants' exceptions to the admission of additional evidence by the Court are overruled.
The defendant Grand Union Company's argument that the Court erred in ruling that there was no evidence on which it could be found that the company would suffer any unnecessary hardship within the meaning of the statute if the application for a variance were denied, does not require extended consideration. The hardship referred to in RSA 31:72 III must be to one whom the statute was designed to protect. We do not believe that an option holder is such a one (Tripp v. Zoning Board of Pawtucket, 84 R.I. 262) and therefore the defendant company's contention cannot prevail.
The Simoneaus, although they do not appear as parties in the petitions, were found by the Court to have acted through their agent, Grand Union Company, in requesting a variance. The Court has concluded that there is no evidence that they suffered unnecessary hardship because of the denial of their petition. The defendants, while they do not dispute the correctness of the essential findings of the Court, maintain that these findings contain sufficient evidence of unnecessary hardship so that "it clearly cannot be said that no reasonable person could have believed (this essential) for a variance existed." Gelinas v. Portsmouth, supra, 251. We cannot accept this argument. A careful analysis of the findings convinces us that the Court's conclusion was correct. Cases cited by the defendants as authority for a contrary holding are distinguishable from the present situation on their facts. In each instance, sustainable findings were made that unnecessary hardship would be inflicted on the one seeking a variance were it denied. This is not so here, and the defendants' exception cannot prevail.
In further relation to the question of unnecessary hardship, the defendants argue that the Court, in deciding this issue, erred in considering the entire lot, rather than just the portion to which the variance was to apply. They cite no authority for this proposition, nor do we believe it a tenable one in the circumstances of this case. Were it to become law, owners, by dividing up their parcels, could often create a situation where unnecessary hardship might appear to exist as to any particular division. Should a variance be granted in such instances, the effect would be as in spot zoning, and the action would be unlawful, since it would defeat the uniformity which it is a fundamental purpose of the zoning law to maintain. Edgewood Civic Club v. Blaisdell, 95 N.H. 244. It follows the defendants' exceptions on this issue are overruled.
Since the Court did not base its decree in reliance upon the so-called "self-created hardship" doctrine advanced in New York state (Clark v. Zoning Board of Appeals, 301 N.Y. 86), but expressly declined to apply this principle, no exception in respect to this matter is open to the defendants.
The conclusions reached render unnecessary consideration of other issues raised, and the order is
Decree affirmed.
All concurred.