Agenda - Planning Commission - 11/06/2008

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:.i...:,_ _- ,~2;~;:':..--:":':':::"'''';'';:':~~'':'~:;;~;- _.....;~~.,_._~-_.:---'-..., -..-.-."- . Zoning Bulletin dard of review. They argued that it did not "make sense to conclude . that the legislature intended to have two different standards of review for HDC decisions." The court disagreed. It said courts afforde~ def- erence to appeals of decisions from local land use boards because the members of those boards were "more familiar with the area in~ valved." Where there was a ZBA, explained the court, it was not nec- essary for the ZBA to apply the same level of deference as would a court, because the ZBA itself was familiar with.the area involved; Having found the ZBA applied the proper standard of review on Konover's application, the court. next explained that it could not set aside the ZBA's decision unless it found it was "unreasonable." The court concluded that ZBA's decision was not unreasonable because: there were several other large nonresidential uses in the area including two schoolS, the village market, and a restaurant; the town's master plan encouraged commercial'development along the route where the supermarket was to be located; commercial uses were permitted in _ the histc;:>ric district; and the proposed store was a permitted use under the Ordinance because it was princip~lly designed to serve shoppers from the community. Moreover, the co.urt noted that although the de- scription of the historic district spoke of "small retail businesses," the Ordinance that permitted retail stores within the historic district did not require a proposeCl business be a "small retail business." Finally, with regard to the impact of traffic from the supermarket on the char- acter of t~e historic district, the court found that the residents who appealed the ZBA decision failed to dispute the evidence to which the ZBA pointed when concluding there would be no negative impact. See also: Town of Rye Bd. of Selectmen v. Town of Rye Zoning Bd: of Adjustment, 155 N.H. 622, 930 A.2d 382 (i007). Case Note: In reaching itsconclusion;the court noted that in in- terpreting language nearly identical to the governing state statute at issue, the majority of courts also held that the proper standard of review for ZBAs was de novo. The court indicated however that if there had not been a ZBA in the town and the appeal from the HDC had gone directly to a court; the proper standard of review may not have been de novo. 4 @ 2008 Thomson Reuters/West 84 \-) /~) ( ,I ! i 1 i i I I I , i I I I I I 1 J I I I 1 I I 1 I I I I 1 \-J