MEREDITH — The New Hampshire Supreme Court has upheld the ruling of the Belknap County Superior Court setting aside the decision of the Zoning Board of Adjustment (ZBA) to grant a variance to allow a variety of commercial uses on the portion of the lot at 22 Foundry Avenue.
The litigation, which began in 2010 pitted the Board of Selectmen against the ZBA. The selectmen were troubled by so-called "zoning creep," by which uses permitted in one district are extended to another by annexing abutting property as well as by the prospect of a commercial operation in the Waukewan Watershed Overlay District.
The property at 22 Foundry Avenue, owned by Foundry Avenue Realty Trust, originally consisted of two lots that were merged in 2009. The first, a one-acre parcel fronting on Foundry Avenue in the business and industry district. The second, abutting the first to the north, is a four-acre wooded lot which lies entirely in the residential district. The only access to the residential portion of the property is through the business and industry district.
The owner sought the variance to construct a building on the land in the residential district to serve as a "warehousing, light manufacturing, building trades and/or equipment and truck repairs." The board, with one dissenting vote, granted the variance, finding that because of its proximity to commercial enterprises and lack of appropriate access, the land is not suited to residential development, despite its zoning.
The Selectboard asked the ZBA to reconsider and when it reaffirmed its decision appealed to Superior Court. Justice James D. O'Neill, III ruled that without knowing the precise use for the property, the ZBA could not determine whether the five criteria for the variance were met. He set aside the variance and remanded the case to the ZBA.
Foundry Avenue Realty Trust amended its request, limiting the proposed use to "building trade or repair shop." The ZBA again granted the variance. The selectmen again appealed and O'Neill reversed the ZBA's decision, again ruling that the proposed use was not sufficiently precise. "Given the endless possibilities of types of trade and items that can be repaired," he wrote, "it is arguably impossible for the ZBA to reasonably grant the variance absent more specificity."
Foundry Avenue Realty Trust and the ZBA then appealed to the Supreme Court.
At the Supreme Court Foundry Avenue Realty Trust, represented by attorney Ed Philpot of Laconia, argued that O'Neill erred by requiring that the proposed use be more specifically defined than the zoning ordinance requires. The justices noted that the five criteria that the ZBA must find are met to grant a variance are established by statute, not the local zoning ordinance. "Accordingly," they held, "the burden on the applicant to address the particular characteristics of the specific proposed use arises independent of, and is not a function of, the uses that are specifically enumerated in the town ordinance."
The justices explained that the responsibility of the ZBA to determine that the five criteria are satisfied cannot be delegated to the planning board. They cited a case in which the court ruled that the Alton ZBA erred by granting a special exception despite severe traffic issues, expecting the planning board as well as state and local officials to resolve the problem.