Agenda - Planning Commission - 12/06/2018

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Zoning Bulletin November 10, 2018 I Volume 12 1 Issue 21 a 14.5-acre manufactured housing park (the "Park") in the City of Roch- ester (the "City"). In April 2014, the City Council passed an updated zoning ordinance that eliminated manufactured housing parks as permit- ted uses anywhere in the City. Nevertheless, in 2015, the Toys purchased a 22-acre lot that abutted their Park with plans to expand their manufac- tured housing park onto that lot. In August 2016, the Toys applied to the City's Zoning Board of Appeals (the "ZBA") for a variance to expand their Park to their newly purchased lot. Under New Hampshire statutory law, RSA 674:33, I(b), a zoning board of appeals may grant an applicant a variance if: "(1) the variance will not be contrary to the public interest; (2) the spirit of the zoning ordinance is observed; (3) substantial justice is done; (4) the values of surrounding properties are not diminished; and (5) literal enforcement of the provisions of the ordinance would result in an unnecessary hardship." The ZBA ultimately granted the Toys' variance request. Notably, the ZBA's written decision did not explicitly address whether the Toys satis- fied the unnecessary hardship requirement of RSA 674:33, I(b), but the ZBA did make brief findings supporting the other four statutory requirements. The City Council challenged the ZBA's decision, appealing to the trial court. The City Council argued that the ZBA granted a variance without finding hardship, in contravention of RSA 647:33, I(b). The trial court affirmed the ZBA's decision. In doing so, the court rejected the City Council's argument that the ZBA's decision was er- roneous because the 'IBA had failed to make findings with respect to un- necessary hardship. The court ruled that "the ZBA is not obligated to make specific findings of fact where, as here, none have been requested." The trial court when on to find that the ZBA could have reasonably concluded that, "because the lot is irregularly and uniquely shaped, and contains wetlands and challenging topographical features, the lot es- sentially requires the type of development" that the Toys proposed. The court further ruled that "the ZBA could have reasonably determined that because the new zoning ordinance removes manufactured housing parks from the inventory of permitted uses city-wide, the proximity to existing manufactured home parks is a special condition that renders this prop- erty unique in [the City] for purposes of a variance." The City Council appealed. On appeal, the City Council again argued, among other things, that the ZBA's failure to make a hardship finding in approving the Toys' variance request was in error. DECISION: Judgment of Superior Court affirmed. The Supreme Court of New Hampshire held that the ZBA's grant of a variance carried with it an implicit finding of hardship and that the ZBA's failure to explicitly make a finding regarding unnecessary hardship was not in error because the City Council had not requested specific findings © 2018 Thomson Reuters 5