Bacon v. Town of Enfield

BRODERICK, C.J. The plaintiff, Maureen Bacon, appeals an order of the Superior Court (Morrill, J.) upholding the denial of her requested variance by the Town of Enfield Zoning Board of Adjustment (ZBA). We affirm. The following facts were found by the trial court or are evident from the record. Bacon owns a home along the shores of Crystal Lake in the town of Enfield, in which she resides year-round with her husband, Charles. She wished to change the home’s heating source, formerly wood and electricity, to propane gas. Without consulting the town’s building or planning administrator, Bacon had a contractor install a propane boiler on the outside of the home. The boiler required the construction of a four by five- and-a-half foot housing shed, attached to the home. Bacon’s home is in the Rural Residential (R3) District and is subject to article IV, section 401.2M of the Town of Enfield zoning ordinance — 470 — (ordinance), which prohibits structures within fifty feet of the seasonal high water mark of Crystal Lake. In fact, like most of the properties around the lake, almost all of Bacon’s home is within the fifty-foot setback as a pre-existing, nonconforming use. The defendant, Town of Enfield (town), has interpreted its ordinance, however, to forbid any new construction that adds to the footprint of such homes without a variance. .Thus, when a neighbor brought the boiler shed to the attention of the ZBA, Bacon sought a variance for the construction. The ZBA denied the variance because it: (1) did not meet the “current criterion of hardship”; (2) violated the spirit of the zoning ordinance; and (3) was not in the public interest. The ZBA subsequently denied Bacon’s motion for rehearing. Bacon appealed the ZBA’s decision to the superior court. The court heard testimony from several witnesses. Gary Osgood, the contractor who installed the boiler, testified to what he had stated in a letter to the ZBA— that the exterior location was the “most practical, safest, and most cost-:efficient location to install the new heating system.” On cross-examination, however, he testified that Bacon had pre-selected the site, and that it would have been possible to install a unit — albeit less efficiently — in other locations, including inside the house, in the garage, or in the attic. Charles .Bacon also testified that the exterior shed was the best location for the boiler. Rudolph Fuchs, an electrician who had inspected Bacon’s home, testified that the boiler could have been safely installed in another location, including the attic or the garage, and that Bacon could have used other forms of energy to heat her home. James L. Taylor, Enfield’s planning and zoning administrator, testified that the purpose of the fifty-foot setback requirement was to protect the town’s resources, specifically the lakes, ponds and wetlands. The trial court concluded that the ZBA “acted reasonably] and lawfully” in denying the variance. First, the court found that Bacon had not demonstrated unnecessary hardship under the standard set forth in Simplex Technologies v. Town of Newington, 145 N.H. 727 (2001). Specifically, the court found that the zoning restriction did not interfere with Bacon’s reasonable use of the property, stating that she had previously heated the home with wood and electricity, the boiler could have been installed in the residence, and she could have used a different heating system which would not have required an outside shed. In addition, the court found a “clear relationship” between the purposes of the ordinance and the fifty-foot setback requirement. Consequently, while the court found that granting the variance would have no effect on the private rights of others, due to the shed’s concealed location, and would not diminish the value of the surrounding properties, it also found that a — 471 — variance “would have some effect on the public rights of others in that it increases congestion along the shoreline and reduces minimally the filtration of runoff into the lake.” Finally, the court found that the variance sought was “not within the spirit of the ordinance,” and that granting the variance “would not do substantial justice.” On appeal, Bacon argues that the trial court erred because it: (1) upheld the ZBA decision, which was “arbitrary and without sufficient evidence”; (2) based its decision, in part, on facts regarding water run-off that were not in evidence; and (3) failed to rule on her claim that the ZBA decision violated her right to equal protection of the law. We address her arguments in turn. We have established a five-part test for the granting of variances. In order to obtain a variance, a petitioner bears the burden of showing that: (1) the variance will not be contrary to the public interest; (2) special conditions exist such that literal enforcement of the ordinance results in unnecessary hardship; (3) the variance is consistent with the spirit of the ordinance; and (4) substantial justice is done. Robinson v. Town of Hudson, 149 N.H. 255, 256-57 (2003); see RSA 674:33, 1(b) (1996). In addition, the ZBA may not grant a variance if it diminishes the value of surrounding properties. Robinson,, 149 N.H. at 257. Our standard of review mandates that: The factual findings of the [ZBA] are deemed prima facie lawful and reasonable, and will not be set aside by the superior court absent errors of law, unless the court is persuaded, based upon a balance of the probabilities, on the evidence before it, that the [ZBA’s] decision is unreasonable. The party seeking to set aside the [ZBA’s] decision bears the burden of proof on appeal to the superior court. We will uphold the superior court’s decision on appeal unless it is not supported by the evidence or is legally erroneous. Our inquiry is not whether we would find as the trial court found, but rather whether the evidence before the court reasonably supports its findings. Duffy v. City of Dover, 149 N.H. 178, 180 (2003) (citations omitted). The trial court’s ruling that the ZBA had acted reasonably and lawfully in denying the variance indicated that Bacon had failed to meet her burden of proving all five factors in the test for the granting of a variance. Specifically, the court clearly found that Bacon failed to demonstrate that: the variance is consistent with the spirit of the ordinance; literal enforcement of the ordinance would result in unnecessary hardship; and — 472 — granting the variance would do substantial justice. In order to affirm the trial court’s decision, we need only find that the court did not err in its review concerning at least one of these factors. The ZBA had found that the variance violated the spirit of the ordinance. In its review of the ZBA decision, the trial court stated: Enfield has a number of significant, valuable natural resources, including a number of lakes, ponds, bogs, and conservation areas. Over the years, the shorefronts of its lakes have become congested as residents enlarged and improved homes on the water. A picture from Crystal Lake of the Bacon and neighbor’s lots show the extent of this clutter. Overdevelopment increases the crowding of the land, particularly where the lots are fairly small, reduces the filtration of water run-off into the lake, and reduces the value of a natural resource. The court continued by stating that it believed there was “a clear relationship between the purposes of the ordinance and this specific [fifty-foot] setback restriction.” As such, the court found that granting the variance would have “some effect on the public rights of others in that it increases congestion along the shoreline.” Consequently, the court agreed with the ZBA that the variance “[was] not within the spirit of the ordinance.” We note that Bacon does not dispute the trial court’s characterization of the general purposes of the ordinance. Indeed, the plaintiff agrees that the general purpose of the fifty-foot restriction in the ordinance “is to protect waterbodies.” In addition, the plaintiff does not dispute any of the ordinance’s specified purposes. As delineated in article I, these purposes include the town’s desire to: “prevent the overcrowding of the land”; “assure proper use of natural resources and other public requirements”; “provide for harmonious development of the land and its environs”; and “conserve [the town’s] rural residential character, its air and water quality ... and its freedom from noise and traffic congestion.” See RSA 483-B:l (stating importance of protecting shorelands “because of their effect on state waters” and that “uncoordinated, unplanned and piecemeal development along the state’s shorelines ... could result in significant negative impacts on the public waters of New Hampshire”); RSA 483-B:9, 11(b) (establishing initial fifty-foot setback for state shorelands). At trial, when asked why the ZBA believed the proposed variance would injure the rights of the public, Taylor testified that: — 473 — [T]hey were looking at the — the lake-front and how Crystal Lake has numerous properties on very small lots, and as the structures — they keep adding to it and adding to it, and they— the zoning put in a 50-foot setback to, you know, to help alleviate some of the — the build-up, to allow some of the open spaces to remain for, you know, filtering water and — and keeping the beauty of the lake. In this case, the fifty-foot setback restriction addresses not just the potential peril of construction on a single lot, but also the threat posed by overdevelopment in general. While a single addition to house a propane boiler might not greatly affect the shorefront congestion or the overall value of the lake as a natural resource, the cumulative impact of many such projects might well be significant. For this reason, uses that contribute to shorefront congestion and overdevelopment could be inconsistent with the spirit of the ordinance. See Saturley v. Town of Hollis, 129 N.H. 757, 762 (1987) (board’s decision to deny variance may rely upon “intent and purposes of [zoning] regulations”). Throughout the proceedings, Bacon held the burden of proving all elements necessary for the granting of a variance, including the requirement that the variance will not be inconsistent with the spirit of the ordinance. See Robinson, 149 N.H. at 256-57. We recognize that the particular characteristics of the shed at issue here could very easily cause reasonable minds to differ with regard to the level of congestion or overdevelopment engendered by it. Given the evidence before the court concerning further congestion and overdevelopment, the absence of contrary evidence on Bacon’s part, and the level of deference in our standard of review to both the factual findings of the ZBA and the decision of the trial court, we cannot find that the trial court erred in concluding that the ZBA “acted reasonably] and lawfully” in denying the variance. See Britton v. Town of Chester, 134 N.H. 434, 441 (1991) (not within the power of this court to act as a “super zoning board”). Accordingly, we need not address the plaintiffs argument that the trial court’s decision with regard to the public interest was based, in part, on facts regarding water run-off that were not in evidence. Finally, Bacon argues that the trial court erred because it failed to rule on her claim that the ZBA decision violated her right to equal protection of the law. More specifically, she contends that the ZBA selectively enforced the zoning ordinance, and that this “conscious and intentional” practice violated her right to “equal treatment and equal protection of the law.” The town questions whether this selective enforcement claim was actually — 474 — presented to the court for review. Assuming, without deciding, that the selective enforcement claim is properly before us, we find that it has no merit. In order for the plaintiff to show that the enforcement of the ordinance was discriminatory, she must show more than that it was merely historically lax. Alexander v. Town of Hampstead, 129 N.H. 278, 283 (1987). Instead, “the plaintiff must show that the selective enforcement of the ordinance against [her] was a conscious intentional discrimination.” Id. (quotation omitted). In addition, the plaintiff must assert and demonstrate that the “[town] impermissibly established classifications and, therefore, treated similarly situated individuals in a different manner” in order to set forth an equal protection claim. Dow v. Town of Effingham, 148 N.H. 121, 124 (2002). We find that the plaintiff has not met this burden. In support of her contention, Bacon cites two other proposed variances that the ZBA granted at about the same time it denied her request. In one instance (the Avery variance), the ZBA granted a homeowner’s request to build a two-car garage within a fifteen-foot side lot setback. In the other (the Henry variance), the ZBA permitted a landowner to build a deck within a twenty-foot setback related to the “rails-to-trails” right of way. The variances cited by Bacon, however, are not useful comparisons to her own proposal. The Avery variance concerned a structure in the Residential (Rl) District of the town and involved article IV, section 401.1L of the ordinance. The Henry variance concerned a structure in the Community Business (CB) District of the town and involved article IV, section 401.4P of the ordinance. The Bacon residence is in the Rural Residential (R3) District of the town and the variance at issue involves article IV, section 401.2M of the ordinance. As such, the locations of the properties within three separate districts of the town and the different ordinance sections at issue call into question whether the plaintiff is similarly situated to the other homeowners cited. More importantly, the two variances cited involved different projects in conflict with different ordinance sections, each with different purposes than those involving the plaintiff. Accordingly, many of the factors considered by the ZBA in reaching its decision could properly be entirely different with regard to each requested variance. As such, those variances are irrelevant to the fifty-foot setback from Crystal Lake, which is at issue in this case. In addition, Taylor testified that, as “current examples of cases involving lake-front setback requirements,” the ZBA had denied three variance requests under article IV, section 401.2M. Taylor also testified that a — 475 — fourth variance request, one involving article IV, section 401.2L, and the construction of a utility shed on a property immediately adjacent to the plaintiffs, was also denied. As such, we find the plaintiff has not met her burden of showing either selective enforcement or “conscious intentional discrimination” on the part of the ZBA in its decision to deny the variance. Affirmed. DUGGAN, J., with whom dalianis, J., joined, concurred specially; NADEAU, J., with whom Brock, C.J., retired, specially assigned under RSA 490:3, joined, dissented.