The applicant owned a property on Winter Street in Keene located in the office district. The lot contained an historic building with nineteen rooms and more than 7,000 square feet of living area on a lot that is 0.44 acres in size. The buildings on either side were used as office buildings. The applicant’s property was in use as a private residence and, although the applicant had made substantial renovations to the property for use as a residence, he testified that he was unable to sustain the property as a residence without additional income from offices. He therefore sought two variances from the zoning board of adjustment (ZBA). An area variance was sought to reduce the required number of parking spaces, and a use variance was sought to permit the “mixed use” of the property as both offices and a private residence. The ZBA granted both variances, and an abutter appealed to the Superior Court. Ultimately, the grant of the area variance was sustained, but the use variance was vacated, as the trial court found that the applicant had failed to satisfy his burden to show “unnecessary hardship.”
On appeal, the evidence from the ZBA relative to the “unnecessary hardship” element was strenuously litigated. In the end, the Supreme Court found it to be a “close case,” and emphasized that the role of the courts in the appeal of zoning cases is limited. The “…inquiry is not whether we would find as the superior court found, but rather whether the evidence before the court reasonably supports its finding.” It found that the ZBA is in the best position to make decisions regarding the use of land, and that it was an error for the Superior Court not to have deferred to the judgment of the local board in the presence of evidence that supported that board’s decision.
In this case, the evidence before the ZBA showed that the proposed use of the structure was consistent with the use of neighboring properties, and that the large size of the structure and the historic nature of the building were factors that made the property unique within its setting. Once the determination on the element of “unnecessary hardship” was made, the remaining elements of the variance request were found to have been met. The Court vacated the decision of the Superior Court, and remanded the case for further proceedings to grant the variance as requested.
This case also emphasizes the importance of the certified record that is created from the actual hearing before the ZBA. The details of the information presented by both the applicant and the objecting abutter were critical to the judicial review of the case both in the Superior Court and in the Supreme Court. The case also highlights the reluctance of the Court to substitute its judgment for the judgment of local board members in an instance where there was a full and complete record that formed the basis of the decision.