Background
Beth and Scott Spicer own a small lakefront seasonal cottage in Hampstead, New Hampshire. Because their lot is non-conforming due to insufficient size and frontage, the Hampstead Zoning Ordinance required them to obtain a special exception before altering or enlarging the structure. The Spicers applied to the Town of Hampstead Zoning Board of Adjustment (ZBA) for permission to remodel the cottage and add a second story, which would increase its height by ten feet.
At the ZBA hearing, Mr. Spicer testified about the construction plans but offered no evidence on whether the addition would affect surrounding property values or whether it was consistent with the spirit and intent of the ordinance — the two criteria the ordinance expressly required applicants to satisfy. Neighboring abutter Christine Murray testified in opposition, quoting the special exception criteria, stating the project was contrary to the ordinance’s spirit and intent, and introducing photographs showing her lake view would be obstructed. The ZBA granted the special exception without making specific written findings of fact as required by RSA 676:3, I. Murray moved for rehearing; during that period the Spicers partially completed the renovations. The ZBA denied rehearing, and Murray appealed to the New Hampshire Housing Appeals Board (HAB), which affirmed the ZBA’s decision as neither unreasonable nor unlawful.
Murray then appealed to the New Hampshire Supreme Court, arguing the applicants never met their burden of proof on the ordinance’s special exception criteria and that the HAB therefore erred in affirming the ZBA.
The Court’s Holding
The Supreme Court reversed the HAB’s decision and remanded with instructions to reverse the ZBA. The court held that an applicant seeking a special exception bears the burden of presenting sufficient evidence to support a favorable finding on each criterion the ordinance requires. Here, the Hampstead Zoning Ordinance conditioned a special exception on proof that the alteration would be within the spirit and intent of the ordinance and would not result in a diminution of surrounding property values. The Spicers presented no evidence on either point and did not even reference the criteria at the hearing.
The court rejected the applicants’ argument that photographs introduced by Murray — depicting her own lake view — were sufficient to support an implicit ZBA finding of no property-value diminution. That evidence was submitted by the opposing party to show harm, not to establish the absence of harm. The court also rejected the argument that the ordinance’s phrase “in the view of the Board” expanded ZBA discretion in a way that insulated the decision from ordinary appellate review. The court held that language simply requires the ZBA to make a specific finding on the property-value criterion — it does not lower the applicant’s burden of proof or alter the standard of review. Because the applicants failed to satisfy their burden, the ZBA had no record basis for its implicit conclusion, rendering both the ZBA and HAB decisions unreasonable.
The court drew directly on Barrington East Owners’ Assoc. v. Town of Barrington, 121 N.H. 627 (1981), which reversed a special exception grant for a shopping mall where the applicant likewise presented no evidence that surrounding property values would not be diminished and neighboring owners testified to the contrary. The court found the record here indistinguishable.
Key Takeaways
- A special exception applicant must affirmatively present evidence satisfying every criterion the zoning ordinance requires; silence on a criterion is fatal to the application regardless of the board’s discretion.
- Evidence introduced by an opposing abutter to demonstrate harm cannot be repurposed to satisfy the applicant’s burden of proving the absence of that same harm.
- Ordinance language granting a board discretion to make a factual finding (“in the view of the Board”) does not relax the applicant’s burden of proof or shield the board’s decision from review for unreasonableness.
- A ZBA’s failure to issue specific written findings of fact as required by RSA 676:3, I, undermines the defensibility of its decision on appeal.
Why It Matters
This decision reinforces a demanding evidentiary baseline for special exception applicants in New Hampshire: boards cannot fill evidentiary voids with discretion, and applicants cannot assume that the absence of contrary proof is enough. For land-use practitioners, the case is a reminder to build an affirmative record on each ordinance criterion — particularly property-value impact — even when opposition is limited or the board seems favorably inclined.
The ruling also signals that partially completing construction during the pendency of a rehearing request provides no procedural shelter. Courts will still reverse an improperly granted exception, leaving applicants who build prematurely in a precarious legal position.