Agenda - Planning Commission - 11/07/2013

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September 25, 2013 I Volume 7 I Issue 18 Zoning Bulletin an owner regarded said lots as merged such as, but not limited to, abandoning a lot line." The statute provides that the municipality bears the burden to prove voluntary merger. Following the statute's passage, Roberts applied to the Windham Board of Selectmen ("Selectboard") seeking to "unmerge" the lots from their single lot designation on the Town's zoning and tax maps and to create four lots consist- ing of: lots 8 and 9; lots 10 and 11; lot 12; and lots 13 and 14. The Selectboard held a meeting to consider the application and determined that the Town had involuntarily merged lots 12-14. The Selectboard, however, concluded that lots 8 through 11 had been voluntarily merged and, thus, denied the Roberts' request to unmerge the four lots. Roberts appealed the decision regarding lots 8 through 11 to the Town's Zoning Board of Appeals (the "ZBA"). The ZBA affirmed the Selectboard's decision for the reasons found by the Selectboard, as well as an additional reason: that by accepting the Town's taxation of the lots as a single lot, the owners voluntarily merged the lots. Roberts moved for a rehearing, which the ZBA denied. Roberts appealed the ZBA's decision to the superior court, which affirmed the ZBA's decision. Roberts again appealed. On appeal, Roberts argued that the superior court applied an incorrect standard of review. Typically, a deferential standard of judicial review applies in zoning cases: "The factual findings of a zoning board are deemed prima facie lawful and reasonable, and a zoning board's decision will not be set aside by the superior court absent errors of law unless it is �- persuaded by the balance of probabilities, on the evidence before it, that the't zoning board decision is unlawful or unreasonable." Roberts contended, t however, that the enactment of RSA 674:39-aa altered the deferential standard of review in zoning cases with respect to the issue of proving the voluntary merger of lots. DECISION: Judgment of superior court affirmed. The Supreme Court of New Hampshire held that the enactment of RSA 674:39-aa did not alter the deferential standard of review in zoning cases with respect to the issue of proving the voluntary merger of lots. In so holding, the court found that Robert's argument "conflated two concepts": "a party's burden of proof and an appellate tribunal's standard of review." The court explained that a burden of proof is "[a] party's duty to prove a disputed assertion or charge." On the other hand, a standard of review is "[t]he criterion by which an appellate [tribunal] . . . measures the constitutionality of a statute or the propriety of an order, finding, or judgment entered by a lower [tribunal]." The court said "that a party bears the burden of proof at trial does not dictate the standard of review applied on appeal." Here, the court found that RSA 674:39-aa expressly placed the burden of proof on the municipality to prove voluntary merger; however, the statute made no pro- vision for an alternate standard of review. Interpreting the plain language of the statute, the court concluded that the superior court did not err in applying the usual deferential standard of review to the ZBA's decision. The court went on to also find that the "totality of the evidence reasonabh` support[ed] a finding that [Robert's] predecessors voluntarily merged the lott.i 6 ©2013 Thomson Reuters