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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Belknap
No. 2017-0225


                           BRIAN M. PERREAULT & a.

                                          v.

                            TOWN OF NEW HAMPTON

                          Argued: January 18, 2018
                         Opinion Issued: July 20, 2018

      Alvin E. Nix, Jr., of Laconia, by brief and orally, for the plaintiffs.


      Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan on the
brief and orally), for the defendant.

      HANTZ MARCONI, J. The plaintiffs, Brian M. and Margaret A. Perreault,
appeal an order of the Superior Court (O’Neill, J.) upholding the denial of their
requested variance by the Town of New Hampton Zoning Board of Adjustment
(ZBA). We affirm.

       The record reflects the following facts. The plaintiffs own approximately
0.3 acres on the shore of Lake Waukewan in New Hampton. Per the town’s
zoning ordinance, the property is subject to a twenty-foot side yard setback
and a thirty-five-foot front setback along the road. It is also subject to a fifty-
foot setback along the lake shore pursuant to the Shoreland Water Quality
Protection Act. See RSA 483-B:9, II(b) (2013). The property is sloped and
contains a house, a deck, and three plastic, movable sheds used to store
various home and recreational items. The plaintiffs sought to replace the
plastic sheds with a ten-by-sixteen-foot permanent shed, which they planned
to construct on the western side of the property. The proposed location of the
permanent shed is approximately one foot from both the western abutting
property line and an existing shed on the abutting property. The proposal,
therefore, would have placed the permanent shed within the twenty-foot side
setback. Accordingly, the plaintiffs sought a variance from the side setback
requirement.

       The ZBA conducted four public hearings and two site visits during its
evaluation of the plaintiffs’ request for a variance. The ZBA received an e-mail
from the western abutters supporting the plaintiffs’ request, as well as a letter
from the town fire chief confirming that the proposed location of the permanent
shed did not pose safety concerns. The plaintiffs explained to the ZBA their
reasons for choosing the proposed location, and acknowledged that there was a
different, albeit less desirable, location on their property — outside of the
twenty-foot setback — where they could build the permanent shed.

       The ZBA ultimately denied the plaintiffs’ variance application. The ZBA
found that the slope of the property was “not . . . egregious” compared to other
lots in the same area, and that it was possible to build the permanent shed in a
location that conformed to the setbacks. The ZBA also found that “[t]he spirit
of the ordinance, in terms of wanting to control overbuilding, is important
because allowing many sheds to be built on a small lot within those setbacks
creates overcrowding and is contrary to the spirit of the ordinance.”

       The plaintiffs requested a rehearing and submitted evidence of seven
“similar” variances that the ZBA had granted for other lakeside lots. They also
submitted evidence of sixteen other properties, all located on the same road as
the plaintiffs’ property, with storage buildings in locations that the plaintiffs
asserted were in violation of the setback requirements. According to the
plaintiffs, this evidence demonstrated that their proposed shed would not alter
the essential character of the neighborhood or threaten the public health,
safety, or welfare. The plaintiffs asserted that the ZBA’s denial of their
application was unreasonable given the comparable circumstances on other
neighborhood properties.

        After granting a rehearing, receiving additional evidence, and conducting
another site visit, the ZBA unanimously voted to deny the plaintiffs’ request for
a variance. The ZBA concluded that the other neighborhood properties and
previous variances identified by the plaintiffs were distinguishable from the
plaintiffs’ circumstances. The ZBA also found that the plaintiffs failed to
establish four of the five criteria required to grant a variance. See RSA 674:33,
I(b)(1)-(5) (2016) (listing criteria); Nine A, LLC v. Town of Chesterfield, 157 N.H.
361, 365 (2008) (noting variance applicant bears burden of demonstrating


                                         2
criteria are met). Regarding the public interest and spirit of the ordinance
criteria, the ZBA found that “[g]ranting the variance would be contrary to the
public interest because the essential character of the neighborhood and the
cumulative impact of granting this and similar variances to others in the
neighborhood jeopardizes the goals of the setback requirements in the [z]oning
[o]rdinance,” which the ZBA identified as “prevent[ing] safety issues and[,] in
this case, overbuilding on lots.” The ZBA also found that the plaintiffs had
failed to meet the substantial justice and unnecessary hardship criteria.

      The plaintiffs appealed to the superior court, see RSA 677:4 (2016),
which affirmed the ZBA’s decision on the public interest, spirit of the
ordinance, and substantial justice criteria. The superior court did not address
the unnecessary hardship requirement.

        On appeal to this court, the plaintiffs argue that the superior court erred
in upholding the ZBA’s findings that granting the variance (1) would be
contrary to the public interest and would violate the spirit of the zoning
ordinance, and (2) would not do substantial justice. See RSA 674:33, I(b)(1)-
(3). The plaintiffs further contend that the ZBA was compelled to find that
literal enforcement of the ordinance would result in an unnecessary hardship.
See RSA 674:33, I(b)(5).

      Judicial review in zoning cases is limited. Bartlett v. City of Manchester,
164 N.H. 634, 639 (2013). The superior court must treat all factual findings of
the ZBA as prima facie lawful and reasonable, and may not set aside or vacate
the ZBA’s decision, except for errors of law, unless the court is persuaded by
the balance of probabilities, on the evidence before it, that the decision is
unreasonable. Id.; see RSA 677:6 (2016). The review by the superior court is
not to determine whether it agrees with the ZBA’s findings, but to determine
whether there is evidence upon which they could have been reasonably based.
Dartmouth Corp. of Alpha Delta v. Town of Hanover, 169 N.H. 743, 750 (2017).
In turn, we will uphold the superior court’s decision unless the evidence does
not support it or it is legally erroneous. Harborside Assocs. v. Parade
Residence Hotel, 162 N.H. 508, 512 (2011).

        Under RSA 674:33, I(b), a zoning board of adjustment has the power to
grant a variance if: (1) “[t]he variance will not be contrary to the public
interest”; (2) “[t]he spirit of the ordinance is observed”; (3) “[s]ubstantial justice
is done”; (4) “[t]he values of surrounding properties are not diminished”; and (5)
“[l]iteral enforcement of the provisions of the ordinance would result in an
unnecessary hardship.” RSA 674:33, I(b)(1)-(5). The variance applicant bears
the burden of demonstrating that all five criteria are met. See Nine A, LLC, 157
N.H. at 365.




                                          3
       With respect to the first and second criteria, we have recognized that
“[t]he requirement that the variance not be contrary to the public interest is
related to the requirement that the variance be consistent with the spirit of the
ordinance.” Malachy Glen Assocs. v. Town of Chichester, 155 N.H. 102, 105
(2007) (quotation omitted). “The first step in analyzing whether granting the
variance would not be contrary to the public interest and would be consistent
with the spirit of the ordinance is to examine the applicable ordinance.”
Harborside Assocs., 162 N.H. at 514. “As the provisions of the ordinance
represent a declaration of public interest, any variance would in some measure
be contrary thereto.” Id. (quotation omitted). Therefore, “[m]ere conflict with
the terms of the ordinance is insufficient.” Id. Rather, to be contrary to the
public interest and inconsistent with the spirit of the ordinance, the variance
must unduly and in a marked degree conflict with the ordinance such that it
violates the ordinance’s basic zoning objectives. See id.; Nine A, LLC, 157 N.H.
at 366. “In determining whether granting a variance violates an ordinance’s
basic zoning objectives, we look to, among other things, whether it would alter
the essential character of the locality or threaten public health, safety or
welfare. Such examples are not exclusive.” Nine A, LLC, 157 N.H. at 366
(citation omitted).

       The plaintiffs contend that the superior court erred in upholding the
ZBA’s findings that granting a variance for the proposed permanent shed would
be contrary to the public interest and inconsistent with the spirit of the
ordinance. They argue that the proposed shed would not alter the essential
character of the neighborhood because several other properties in the
neighborhood have outbuildings within the setbacks. They maintain that the
existence of these outbuildings on neighboring properties, along with the lack
of objection from the western abutters and the town fire chief, demonstrate
that the proposed shed poses no threat to the public health, safety, or welfare.

      The superior court concluded that the ZBA’s denial of the plaintiffs’
variance on the public interest and spirit of the ordinance criteria was not
unreasonable or unlawful. See RSA 677:6. The court reasoned:

      The ZBA specifically found that allowing the requested variance
      would jeopardize the goal[s] of the setback requirement[s], which
      the ZBA concluded w[ere] “to prevent safety issues” and
      “overbuilding on lots.” With respect to safety issues, the ZBA
      acknowledged that the Town’s Fire Chief did not have concerns
      with the proposed location, despite the fact that the shed would be
      constructed approximately one foot from an existing shed on the
      abutter’s property. However, the ZBA reasonably considered the
      cumulative effect that such variances may have on the area. While
      many of the ZBA’s concerns focused on the aesthetic environment
      of the neighborhood and the desire to avoid the appearance of



                                        4
      overcrowding, the ZBA is entitled to rely on aesthetics alone in
      making its determination.

(Citations omitted.)

       In concluding that “the ZBA reasonably considered the cumulative effect
that such variances may have on the area,” the superior court relied on
language from Chief Justice Broderick’s opinion in Bacon v. Town of Enfield,
150 N.H. 468 (2004). There were three opinions in Bacon, however: the lead
opinion by Chief Justice Broderick; a special concurrence authored by Justice
Duggan and joined by Justice Dalianis; and a dissenting opinion authored by
Justice Nadeau and joined by retired Chief Justice Brock. Chief Justice
Broderick, Justice Duggan, and Justice Dalianis — three of the five justices —
affirmed the superior court’s decision upholding the zoning board’s denial of
the requested variance, but Justices Duggan and Dalianis affirmed the decision
on a different basis than Chief Justice Broderick. Compare Bacon, 150 N.H. at
472-73 (Broderick, C.J.) (affirming denial of variance on spirit of the ordinance
requirement), with id. at 475 (Duggan and Dalianis, JJ., concurring specially)
(affirming denial of variance on unnecessary hardship requirement). Bacon,
therefore, is a plurality decision. See Ryan C. Williams, Questioning Marks:
Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. 795, 827
(2017) (“The distinctive feature of a plurality decision is . . . the existence of a
majority agreement on the judgment in a particular case without a
corresponding agreement on the underlying rationale that supports that
judgment.” (footnote omitted)). Consequently, the reasoning contained in Chief
Justice Broderick’s opinion in Bacon is not binding precedent, but rather, at
most, persuasive authority. See In re Shelby R., 148 N.H. 237, 248 (2002)
(Duggan, J., concurring in part and dissenting in part) (plurality decision of
this court is not binding precedent); see also University of Texas Med. Branch
v. York, 871 S.W.2d 175, 176-77 (Tex. 1994) (addressing precedential effect of
state supreme court’s plurality decision and noting that “the judgment itself
has very limited precedential value and would control the result only in
identical cases,” while the plurality opinion is not binding authority, although
the case may be used “for guidance”); State v. Johnson, 270 P.3d 591, 596
(Wash. 2012) (“A plurality has little precedential value and is not binding.”); cf.
Harborside Assocs., 162 N.H. at 518 (noting that the Bacon special
concurrence “lacks precedential value”).

      Since Bacon, we have yet to apply, in a published opinion, the concept of
cumulative impact in a zoning case. Here, because the plaintiffs do not
challenge the superior court’s reliance on Bacon or its consideration of
cumulative impact, we assume, without deciding, that cumulative impact is a
proper consideration in the variance context.

     Given that assumption, we conclude that the superior court’s decision
was not unreasonable or unlawful. We have recognized that preventing


                                         5
overcrowding may be a legitimate purpose of a zoning ordinance. See Nine A,
LLC, 157 N.H. at 368 (explaining that a municipality may prohibit two-family
dwellings and cluster developments to prevent “overcrowding of, and undue
concentration of population on and around, [a] lake”); see also RSA 674:17, I(e)
(2016) (listing “prevent[ing] the overcrowding of land” as a statutory purpose of
zoning ordinances). The record supports the ZBA’s finding that “prevent[ing]
safety issues” and “overbuilding on lots” are among the purposes of the zoning
ordinance’s setback requirements. The superior court, relying on Asselin v.
Town of Conway, 137 N.H. 368 (1993), concluded that the ZBA did not act
unreasonably or unlawfully when it “focused on the aesthetic environment of
the neighborhood and the desire to avoid the appearance of overcrowding” in
determining that granting “the requested variance would jeopardize the goal[s]
of the setback requirement[s].” See Asselin, 137 N.H. at 371-72 (holding that
“municipalities may validly exercise zoning power solely to advance aesthetic
values, because the preservation or enhancement of the visual environment
may promote the general welfare” (emphasis omitted)). We find no error of law
in this conclusion.

       We also find support in the record for the ZBA’s finding that granting the
requested variance would “jeopardize” one of the purposes of the setback
requirements: preventing overbuilding on lots. As the superior court noted, the
ZBA visited the property twice and concluded that “the proposed shed would
contribute to congestion already in the area.” Cf. Nine A, LLC, 157 N.H. at 362,
365 (affirming superior court’s ruling “that the [zoning board] reasonably
concluded that the proposal was inconsistent with the spirit of the ordinance to
limit density and address issues of overdevelopment and overcrowding on the
lake”).

       The plaintiffs’ claims of error on appeal focus on the evidence they
submitted to the ZBA of other neighborhood properties that allegedly have
outbuildings within the setbacks. As the superior court noted, the ZBA found
that the seven variances identified by the plaintiffs did not bear on their
application because these variances were either granted when different
variance criteria applied, see Boccia v. City of Portsmouth, 151 N.H. 85 (2004),
superseded by Laws 2009, 307:6, or the properties were distinguishable from
the plaintiffs’ lot. Cf. Nine A, LLC, 157 N.H. at 368 (affirming superior court’s
rejection of argument that applicant “was entitled to a variance to develop
residential properties similar in acreage and frontage to nonconforming existing
lots that were developed under different zoning standards”). Furthermore, the
ZBA found that the majority of the outbuildings on the neighborhood
properties identified by the plaintiffs either existed prior to the enactment of
the setback requirements or were not, in fact, within any setback. Cf. id.
(rejecting applicant’s attempt “to use the character of properties developed
before the town enacted the ordinance as the basis for granting the variance”).
The superior court noted that with respect to the other outbuildings, the town
was not previously aware of these structures and was “in the process of


                                        6
determining the legality of same.” The superior court concluded that “evidence
of other similar outbuildings in the area did not require the ZBA to grant the
[plaintiffs’ requested] variance.” This conclusion was not error.

       Given the evidence before the ZBA, and the considerable deference
reflected in our standard of review, we cannot find that the superior court erred
in concluding that the ZBA acted reasonably and lawfully in finding that the
plaintiffs’ requested variance would violate the spirit of the ordinance and
would be contrary to the public interest. See id. at 369. Because we uphold
the superior court’s ruling as to these two criteria, we need not address its
ruling as to the substantial justice requirement or the plaintiffs’ contention
that they met the unnecessary hardship requirement. See id.

                                                 Affirmed.

      LYNN, C.J., and HICKS and BASSETT, JJ., concurred.




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