Opinion
No. 5578.
Argued February 7, 1967.
Decided March 29, 1967.
1. Where both the owner of land and the holder of an option to purchase were represented by counsel in applying for a variance from the terms of a zoning ordinance, both at the original hearing and at rehearing before the zoning board of adjustment, the owner was held to have the status of an applicant so as to permit the board to grant a variance based on unnecessary hardship for the use of her land though the application was signed only by the option holder.
Appeal by the plaintiffs to the Superior Court (RSA 31:77) from a decision of the zoning board of adjustment of the city of Nashua granting a variance to construct a "Dairy Queen stand" at 38 Broad Street in the city of Nashua. This property is owned by the defendant, Emma L. Somers, and is subject to an option to purchase by the defendant, Michael Wollen, and is located in an "A" residence district where the protesting plaintiffs also reside.
After the appeal was entered, the parties submitted an agreed statement of facts. The record of the zoning board of adjustment of the city of Nashua was incorporated by reference as a part of the record on appeal and both the owner, Emma L. Somers, and the option holder, Michael Wollen, were joined as parties in interest. It was agreed that the "evidence concerning hardship which was presented to the zoning board of adjustment related to hardship of the owner, Emma L. Somers." The application for a variance was only in the name of "Michael Wollen (option holder)" but the record of the hearing before the zoning board of adjustment stated that both the option holder and the owner were represented by an attorney at the original hearing and at the rehearing.
The Superior Court (Morris, J.) reserved and transferred without ruling the following questions:
"1. Did Emma L. Somers have the status of an applicant before the Zoning Board of Adjustment so as to permit the Zoning Board to grant a variance for the use of her land?
"2. If the answer to the above question is `No', can a variance be granted to an option holder based on a showing inter alia of hardship suffered by the owner in the event of denial of the variance?"
"The parties agree that in the event the answer to either of the two questions is in the affirmative, the petition [appeal] may be denied. In the event the answer to both questions is in the negative, the petition [appeal] will be granted."
Harkaway, Barry Gall (Mr. Joseph F. Gall orally), for the plaintiffs.
Leo R. Lesieur, city solicitor, for the defendant city of Nashua, filed no brief.
Hamblett, Kerrigan Hamblett (Mr. Joseph M. Kerrigan orally), for the defendants Michael Wollen and Emma L. Somers.
The appeal in this case is predicated principally on the argument that the holder of an option to purchase is not a person entitled to a variance based on unnecessary hardship to the owner as provided by s. 45, A(6) of the Nashua zoning ordinance. RSA 31:72 III; Conery v. Nashua, 103 N.H. 16, 21. The lack of standing of an option holder in the Conery case was not applied to applicants for an exception to a zoning ordinance because unnecessary hardship is not a factor. Burr v. Keene, 105 N.H. 228. Recent comment may indicate that the Conery holding on the lack of standing of an option holder represents a minority viewpoint. 2 Rathkopf, The Law of Zoning and Planning, ch. 40 and 1966 Supp; Annot. 89 A.L.R. 2d 663; Comment, Standing to Appeal Zoning Determinations: The "Aggrieved Person" Requirement, 64 Mich. L. Rev. 1070, 1076 (1966). See Lefcoe, Land Development Law 1332 (1966). We agree that the unnecessary hardship must relate to the owner and not to the option holder and in the present case it is clear that that requisite has been established as appears in the agreed statement of facts.
In the present case we are not dealing with an application solely by a holder of an option to purchase land. While the record of the board of adjustment of the city of Nashua is not a stenographic transcript of the evidence, it clearly shows that both the option holder and the owner were represented by an attorney in applying for a variance not only at the original hearing but at the rehearing. RSA 31:69, 77. In other words, the owner had the status of an applicant so as to permit the zoning board to grant a variance based on unnecessary hardship for the use of her land even though the application had been signed by the holder of the option to purchase the property. Cranston Jewish Center v. Zoning Bd. of Review, 93 R.I. 364; Dunham v. Zoning Board, 68 R.I. 88. See Note, Zoning Variances, 74 Harv. L. Rev. 1396, 1398 (1961). ". . . Decisions on point all indicate that if the legal owner joins in the original application, the holder of an option on the property will be allowed to appeal from a denial of the application." Comment, Standing to Appeal Zoning Determinations: The "Aggrieved Person" Requirement, 64 Mich. L. Rev. 1070, 1077 (1966). See 2 Metzenbaum, Law of Zoning (2d ed. 1955) pp. 1040-1041 and 1966 Supp; 2 Yokley, Zoning Law and Practice, s. 13-4 (3d ed. 1965); 8 McQuillin, Municipal Corporations (Rev. vol. 1965) s. 25.162a.
The first question transferred is answered in the affirmative which renders it unnecessary to consider the answer to the second question transferred. In accordance with the agreement of the parties the petition [appeal] is denied and the order is
Appeal dismissed.
All concurred.