Agenda - Planning Commission - 06/04/1996

Home

Z.B. May 1996 -- Page 7 The neighbors appealed the board's decision, claiming the evidence did not support it. They presented the court with a transcript' and minutes of the second hearing, but supplied no information from the first. The court found the evidence insufficient to support a variance and vacated the board's decision. Halle and the town appealed. DECISION: Reversed and returned to the lower court. The lower court should not have found the evidence insufficient without reviewing what Halle presented at the first hearing. The lower court could dis- miss the neighbors' case, but the appeals court told it to give them a chance to supply the necessary ev.idence because they never got adequate notice of the first hearing. Since the neighbors claimed the evidence did not support the board's deci- sion, they had to give the court a complete record of the evidence on which the board relied. The court had to review evidence from the first hearing before it could vacate the variance, especially since the board relied on that evidence in granting it. Twiggv. Town of Kennebunk, 662 A.2d 914 (1_995). Attorney's Fees -- Must Town Pay Fees for Defending Its Board's Decision? Taber v. Town of Westmoreland, '670 A.2d 2 034 (New Hampshire) 7_996 In 1992, the town of Westmoreland, N.H., granted a property owner a per- mit to build a new structure to replace his detached garage. The old garage violated the town zoning ordinance's side-yard setback requirement, but was allowed as a preexisting nonconforming use. Under the building permit, the new structure had to use the same exact space as the old garage. The owner demolished the garage and began building. The new structure's porch extended beyond the old garage's boundaries. Taber, the next-door neigh- bor, found out about the construction two months into it and complained to the town's Board of Selectmen. He claimed the new structure violated the zoning ordinance, which prohibited enlarging, restoring, and extending preexisting nonconforming uses. The selectmen initially rejected Taber's appeal, but then issued a cease and desist order. The town rejected the owner's request for a zoning permit and referred him to the Zoning Board of Adjustment. The owner applied to the board for a variance, which the board granted. Taber appealed the board's decision to court. The court found the board illegally granted the variance without addressing whether compliance with the zoning ordinance would cause the owner unnecessary hardship. The court ordered the owner to remove the porch (the only feature extending past the old garage's boundaries) and granted Taber's request for attorney's fees against the town. In granting the fees, the court explained Taber's case benefited the town's citizens by forcing the town and the zoning board to adhere to the ordinance. Also, it said, by softening the legal standard for unnecessary hardship, the board