THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2025-0239, Appeal of Stephen Verbeek & a., the court on May 8, 2026, issued the following order:
The court has reviewed the written arguments and the record submitted on appeal, has considered the oral arguments of the parties, and has determined to resolve the case by way of this order. See Sup. Ct. R. 20(3). The petitioners, Stephen Verbeek and Nicole Verbeek, appeal an order of the New Hampshire Housing Appeals Board (HAB) upholding a decision of the Zoning Board of Adjustment (ZBA) for the City of Claremont (City) denying their request for variances to allow short-term rentals (STRs) on their property. We vacate and remand.
I. Background The following facts are supported by the record. The petitioners own a property in the City. The City's zoning districts include the Agricultural Residential District (AR District) and the Rural Residential District II (RR-2 District). The petitioners' property lies in both the AR District and the RR-2 District. In 2018, the petitioners placed a recreational vehicle (the camper) on their property in the RR-2 District for personal use. In December 2020, they began providing third parties with STRs of the camper. In May 2022, the City Planner sent the petitioners a letter asserting that STRs are not permitted under the Claremont Zoning Ordinance (Ordinance) without a variance. In May 2023, the petitioners filed an application with the ZBA requesting variances to: (1) use the camper for personal use and STRs; and (2) build a cabin on their property in the AR District for personal use and STRs. After multiple hearings and a site visit, the ZBA denied the application because it concluded that the petitioners would not suffer an unnecessary hardship by enforcement of the Ordinance's provisions. The petitioners unsuccessfully moved for a rehearing.
The petitioners appealed the ZBA's decision to the HAB. After a hearing, the HAB affirmed the ZBA's decision. The petitioners unsuccessfully moved for reconsideration. This appeal followed.
II. Analysis Our review of the HAB's decision is governed by RSA chapter 541. Appeal of Hoekstra, 176 N.H. 575, 577 (2024), 2024 N.H. 23, ¶5. We will not
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set aside the HAB's order "except for errors of law," unless we are satisfied, "by a clear preponderance of the evidence" before us, "that such order is unjust or unreasonable." RSA 541:13 (2021). The HAB's factual findings "shall be deemed to be prima facie lawful and reasonable." Id.
The petitioners argue that because the requested use of their property is permitted under the Ordinance, the HAB erred in affirming the ZBA's decision. The HAB refused to consider this argument because it concluded that the petitioners never made this argument before the ZBA. Instead, the HAB declined to grant the petitioners' requested variances because it concluded that they would not suffer an unnecessary hardship by enforcement of the Ordinance's provisions.
In Bartlett v. City of Manchester, 164 N.H. 634 (2013), we held that in an appeal from a ZBA's variance decision, the superior court had jurisdiction under RSA chapter 677 to consider, in the first instance, whether a proposed use of a property was permitted under an ordinance. Bartlett, 164 N.H. at 640-43; see also Appeal of Town of East Kingston, No. 2022-0219 (non- precedential order at 6), 2024 WL 2319933 (N.H. May 22, 2024) (explaining that the superior court in Bartlett relied upon "an accessory use theory that was not presented to the ZBA" and that "the ZBA did not receive evidence or hear arguments regarding accessory use"). We reasoned that the superior court had jurisdiction to consider this question in the first instance because,
"[i]n deciding whether [the intervenor's] variance application satisfied the variance criterion of unnecessary hardship, the trial court . . . had to consider the permissible uses of [the intervenor's] property under the ordinance."
Bartlett, 164 N.H. at 640.
Similarly here, the petitioners appealed to the HAB the ZBA's decision to deny their requested variances. The HAB affirmed the ZBA's decision to deny the petitioners' variance application because it concluded that the petitioners did not meet "the hardship criterion." Pursuant to our holding in Bartlett, we conclude that, in reviewing the ZBA's finding that enforcement of the Ordinance's provisions would not result in an unnecessary hardship, the HAB had jurisdiction and was therefore required to consider the petitioners' argument that their proposed use of their property is permitted under the Ordinance. See id. at 640-43. The HAB declined to consider this argument. Accordingly, we vacate and remand.
On remand, the HAB must consider the permitted uses under the Ordinance. See Claremont, N.H., Ordinances ch. 22, art. I, §§ 146, 148, 186, 188 (2024) (establishing a permissive zoning scheme in the AR District and the RR-2 District that prohibits all uses not expressly permitted and also allowing certain uses by special exception); cf. Working Stiff Partners v. City of Portsmouth, 172 N.H. 611, 616 (2019) (explaining that the first step in the application of a permissive zoning ordinance is to look to the list of primary
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uses permitted in a given district). If the HAB determines that further fact- finding is necessary, it shall remand to the ZBA. See Bartlett, 164 N.H. at 642- 43 (explaining that resolving whether a proposed use is permitted "requires a sufficiently developed factual record," concluding that the trial court lacked a sufficient factual record to decide whether the intervenor's proposed use was permitted under the ordinance, and remanding "to the ZBA to consider the issue in the first instance" because "the ZBA is the proper forum for the development of such a record").
Vacated and remanded.
MACDONALD, C.J., and DONOVAN and COUNTWAY, JJ., concurred.
Timothy A. Gudas, Clerk
Distribution:
New Hampshire Housing Appeals Board, ZBA-2023-24 Shawn M. Tanguay, Esq.
Jeffrey C. Christensen, Esq.
Attorney General
Francis Fredericks, Supreme Court
Sherri Miscio, Supreme Court
File