“In the View of the Board” Does Not Dilute the Applicant’s Evidentiary Burden for a Special Exception

Case: Appeal of Murray, 2026 N.H. 26 (N.H. July 15, 2026)
Court: Supreme Court of New Hampshire
From: Housing Appeals Board (affirming Town of Hampstead ZBA)

1. Introduction

Appeal of Murray arises from a neighbor dispute over a proposed second-floor addition to a nonconforming lakefront seasonal cottage in Hampstead, New Hampshire. The cottage owners, Beth and Scott Spicer (the applicants), sought a special exception from the Town of Hampstead Zoning Board of Adjustment (ZBA) because the lot was nonconforming by size and frontage, and the Hampstead Zoning Ordinance (HZO) required a special exception to alter or enlarge the structure.

Christine Murray (the abutter) opposed the project, alleging obstruction of her lake view and a resulting diminution in her property value. The ZBA granted the special exception but issued a decision that did not include “specific written findings of fact that support the decision” as required by RSA 676:3, I. After rehearing was denied and some renovations proceeded, the abutter appealed to the Housing Appeals Board (HAB), which affirmed the ZBA. The Supreme Court reversed.

Key legal issues

• Whether the applicants met their burden to prove the special exception criteria in the HZO.
• Whether the ZBA could grant the special exception without an evidentiary record supporting required findings—especially on property values.
• Whether the ordinance phrase “in the view of the Board” changes the standard of review or relaxes the evidentiary burden.

2. Summary of the Opinion

The Supreme Court of New Hampshire held that the applicants failed to meet their burden to establish entitlement to a special exception because they presented no evidence that the addition would (1) be within the spirit and intent of the ordinance and (2) cause “no diminution of surrounding property values.” The Court further held that the phrase “in the view of the Board” does not alter the standard of review and, instead, requires that the ZBA make the specific finding that surrounding property values would not be diminished. With no record basis for such a finding—and with the abutter testifying the project would diminish her property value—the ZBA’s approval (and the HAB’s affirmance) were unreasonable. The case was reversed and remanded to the HAB with instructions to reverse the ZBA decision.

3. Analysis

A. Precedents Cited

1) Deference and record review in land-use appeals

The Court reiterated the appellate structure and deference principles governing HAB review of ZBA decisions and Supreme Court review of HAB decisions:

• Appeal of Chichester Commons, 175 N.H. 412 (2022): cited for the proposition that the reviewing tribunal asks whether there is evidence in the record upon which the ZBA could have reasonably based its findings, and that the Supreme Court reviews whether HAB findings are supported by competent evidence.
• Trustees of Dartmouth Coll. v. Town of Hanover, 171 N.H. 497 (2018): cited alongside Chichester Commons for the “record basis” approach—review is not a reweighing of evidence but an inquiry into whether the decision is reasonably supported.

These cases provide the framework for the Court’s central move: even under deferential review, a decision is unsustainable if the record lacks evidence to support mandatory findings.

2) The applicant’s burden on special exceptions

The Court anchored its outcome in well-established special exception doctrine:

• McKibbin v. City of Lebanon, 149 N.H. 59 (2003): cited for the rule that the applicant bears the burden to present sufficient evidence to support a favorable finding on each special exception requirement, and that a zoning board may not vary or waive ordinance requirements.
• Tidd v. Town of Alton, 148 N.H. 424 (2002): cited for the same burden principle.
• Jensen's, Inc. v. City of Dover, 130 N.H. 761 (1988): cited both for the applicant’s burden and as a comparator where denial was affirmed because the applicant failed to meet that burden on a criterion.

These precedents drove the Court’s conclusion that the applicants’ failure to introduce any evidence on property value impacts (and spirit/intent) was not a minor defect; it was a failure of proof that invalidated the grant.

3) “Diminution of property values” must be supported by evidence

• Barrington East Owners' Assoc. v. Town of Barrington, 121 N.H. 627 (1981): the key analogue. There, a special exception was reversed because the proponent offered no evidence that a proposed mall would not substantially diminish property values, while opponents testified to adverse value effects. The Court relied on it to conclude the ZBA lacked “sufficient information” to make required findings here as well.
• Hussey v. Town of Barrington, 135 N.H. 227 (1992): cited by contrast to show what “enough” evidence can look like: “detailed appraisal data” supporting findings about negative effects on adjoining property values.

By juxtaposing Barrington East Owners' Assoc. and Hussey, the Court signaled that value-impact criteria are evidentiary in nature and typically call for at least some concrete valuation information—not mere assertion, and not reliance on photographs untethered to market impact.

4) Remedy for failure to meet a land-use burden

• Gail C. Nadeau 1994 Trust v. City of Portsmouth, 155 N.H. 810 (2007): cited for the remedial approach of reversing when petitioners failed to meet the burden of proof, supporting the instruction that the HAB must reverse the ZBA.

B. Legal Reasoning

1) Ordinance criteria were mandatory and applicant-borne

The operative ordinance provision allowed a special exception for alteration/enlargement on a nonconforming lot only if: (1) the change is “within the spirit and intent of the Ordinance,” and (2) there is “no diminution of surrounding property values in the view of the Board.” The Court treated these as express, non-waivable prerequisites. Under McKibbin and related cases, the applicants had the burden to produce evidence enabling favorable findings on each.

2) The record contained essentially no applicant evidence on the criteria

The applicants’ presentation addressed the project (including a ten-foot height increase) but did not address—at all— (a) consistency with the ordinance’s spirit and intent or (b) absence of diminution in surrounding property values. The abutter, by contrast, explicitly invoked the criteria and testified the project would diminish her property value by obstructing her lake view. The applicants offered no rebuttal.

3) Photographs of a view are not proof of “no diminution”

The applicants argued that photographs the abutter submitted of her lake view supported an “implicit” finding of no diminution. The Court rejected that inference: photographs may show sightlines, but they do not establish market impact (and certainly do not establish no adverse impact) without connecting evidence. The Court’s comparison to Hussey v. Town of Barrington underscores that value findings generally require valuation evidence—often appraisals or other market data—rather than speculation from visuals.

4) “In the view of the Board” does not change the appellate standard or reduce proof requirements

The applicants’ central doctrinal argument was that “in the view of the Board” vests broad discretion and limits appellate review. The Court rejected this, holding the phrase does not alter the standard of review. Instead, it requires that the ZBA make the specific finding that values will not be diminished. This is a significant clarification: discretionary phrasing does not transform a substantive criterion into an unreviewable judgment call; the finding must still rest on evidence in the record.

5) Unreasonableness follows from a missing evidentiary foundation

Applying RSA 541:13 (review of HAB) and the reasonableness framework, the Court concluded both decisions were unreasonable: the ZBA lacked an evidentiary basis to find the criteria satisfied, and the HAB erred by affirming. The remedy was reversal and remand to the HAB with instructions to reverse the ZBA.

C. Impact

• Clarifies the meaning of “in the view of the Board.” The phrase does not insulate boards from review or relax applicants’ burdens; it requires an explicit, evidence-supported finding.
• Reinforces evidence-first special exception practice. Applicants should expect to present affirmative evidence on each criterion (including property value effects when required), rather than relying on board intuition, opponent exhibits, or implicit findings.
• Raises the bar for “property value” criteria. While the Court did not mandate appraisals in every case, its reliance on Barrington East Owners' Assoc. and its “cf.” reference to Hussey will encourage boards and applicants to develop a valuation record (appraisal testimony, market data, broker opinions, comparable sales analysis) when “no diminution” is an element.
• Constrains HAB affirmances where the record is thin. Even under deferential review, HAB cannot uphold a decision when the necessary findings lack record support.
• Operational consequences for permitting strategy. Because the applicants partially completed renovations during rehearing, the decision also serves as a caution that proceeding during appellate windows carries legal risk if approvals are later reversed.

4. Complex Concepts Simplified

• Special exception: A permission the ordinance already contemplates for certain uses/changes, but only if specific conditions are proven. It is not a variance; it is conditional authorization under the ordinance’s own terms.
• Nonconforming lot/structure: Property that does not meet current zoning requirements (e.g., frontage, size) but is allowed to continue because it predated the regulation. Alterations may be restricted and often require special approval.
• Burden of proof (special exception): The applicant must supply evidence supporting each required element. If the record is silent on an element, the applicant loses—even if the board would like to approve.
• Prima facie lawful and reasonable: Reviewing bodies start with a presumption that the board’s findings are valid, but that presumption can be overcome where the record lacks competent evidence supporting the necessary findings.
• “Unreasonable” on review: In this context, not mere disagreement; it means the decision lacks adequate legal/evidentiary support under the governing standards (here, especially the absence of evidence for mandatory ordinance criteria).

5. Conclusion

Appeal of Murray reinforces a strict but familiar New Hampshire land-use rule: special exceptions are not granted by assumption or discretion alone. The applicant must build an evidentiary record for every ordinance criterion, and a zoning board must make the required findings on that record. Critically, the Court held that ordinance language such as “in the view of the Board” does not change the standard of review or shield unsupported conclusions; it underscores the need for a specific, evidence-based finding. The decision will likely push applicants and boards toward more explicit presentations—particularly on “no diminution of property values”—to ensure approvals can survive HAB and appellate review.