Agenda - Planning Commission - 11/06/2008

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----..-.---------- -~-- ~~~.0:~::~:&:;:;ii;'- _ !(~ 1(') October 25, 20081 Volume i I No. 20 nancealso required the HDC to consider certain criteria (the Criteria) when reviewing applications for approval. The Criteria included: the aesthetic ~ompatibility of the building's exterior to the surroUnding buildings in the district; anticipated changes in noise, congestion and traffic from the proposed building" or use"; and whether the proposal would "detract from the character and quiet dignity" of the district. The HDC denied Konover's application. It found that Konover failed to meet all of the Criteria. Konover appealed to the ZBA. The" ZBA held a hearing de novo (or "anew"). This meant that the ZBA considered the evidence and made its own findings, which were separate from the fipdings of the HDC. TheZBA ~pproved Konover's application. It found that Konover did meet all of tl?e Criteria. Town residel,lts appealed. They argued that the ZBA should not have revIewed Konover's application de novo. Rather they said that the ZBA should have deferred to the HDC's findings", and should " only have overruled the HDC's findings if it found them to be clearly erroneous. The superior court concluded that the ZBA applied the correct standard of review when it reviewed the matter de novo. Town residents appealed. DECISION: Affirmed. I \ , ) '-.-- The Supreme Court of New Hampshire affirmed the ZBA's ap- proval "of Konover's supermarket proposal in the town's historic district. In reaching its conclusion, the court first determined that the ZBA had properly reviewed the matter de novo. The court ex- plained that appeals before the ZBA were governed by state statute. The court found that the governing state statute did not expressly "au~ thorize the ZBA to review appeals from decisions of administrative officials (such as the HDC) de novo. However, the court found the statute did give the ZBA "all the powers of the administrative official from whom the appeal is taken.;' The court found that meant that the ZBA could essentially act as the HDC, consider all evidence, and make its own findings on the application. The residents who appealed pointed to the statutory requirement that decisions of HDCsin municipalities without ZBAs must be appealed directly to the superior court. The residents noted that in those cases the court was required to appiy a .more deferential stan- @ 2008 Thomson ReutersIWest 3 ! . 83