2004-453, VICKI A. McDONALD v. TOWN OF EFFINGHAM ZONING BOARD OF ADJUSTMENT

Rehearing challenging th e ZBA’s consideration of and reliance upon applicant was procedurally obligated to file a second Motion for a Motion for Rehearing of a decision not to grant a variance that the A. Did the Trial Court err in ruling in this appeal of denial from

court transferred th e following questions: Effingham Zoning Board of Adjustment (ZBA). Sup. Ct. R. 8. The superior plaintiff, Vicki A. McDonald, from a zoning order of the defendant, Town of Superior Court (O’Neill, J.) dismissing the appeal and related claims of the BRODERICK, C.J. This is an interlocutory appeal from an orde r of the

Serge on the brief, and Mr. Serge orally), for the defendant. Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Matthew R.

Paul W. Mullen on the brief, and Mr. Cooper orally), fo r the plaintiff. Cooper, Deans & Cargill, P.A., of North Conway (Randall F. Cooper and

No. 2004 - 453 Carroll

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, Ne w Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

its initial denial order. deny the variance request and was not mentioned or discussed by the ZBA in and void.” The “release form” ruling constituted an independent ground to application and that the proposed septic system for the lot was therefore “null required “Standard Release Form for Protective We ll Radii” with her variance its earlier decision. It further concluded that McDonald never submitted the so, the ZBA found that no new evidence was presented requiring any change in McDonald timely filed a mo tion for rehearing, which the ZBA denied. In doing

not be done, and d) the use is contrary to the spirit of the ordinance. to the owner, c) by granting the permit, substantial justice would b) denial of the permit would not result in unnecessary hardship a) granting the permit would be contrary t o public interest,

surrounding properties may result,” and that: The ZBA denied her application, stating that “diminution in value of

approved by the New Hampshire Department of Environmental Services. in support of her request, including a septic sy stem construction permit At the public hearing on her application, McDonald offered evidence to the ZBA depth and forty feet in width. McDonald, therefore, sought an area variance. setbacks to the property woul d limit any structure on the lot to eight feet in which pre - existed the adoption of the ordinance, the application of the requirements (the ordinance). While McDonald’s property was a “lot of record” requires a minimum lot size of two acres and specifies frontage and setback land in the Town of Effingham (the town). The town’s zoning ordinance Brown, 148 N.H. 485, 485 ( p. 2 2002). McDonald owns one - quarter of an acre of We accept the facts as presented in this interlocutory transfer. Cross v.

We reverse and remand.

damages for the regulatory taking of her land. the second Motion for Rehearing, was as well foreclosed from seeking C. Did the Trial Court err in ruling that the Petitioner, by failing to file

rehearing. decision at its s ession to consider whether or not to grant a motion for due process of law by the ZBA providing the additional reason for its law the decision of the Board as a violation of the applicant’s right to challenging either under federal (4 p. 2 2 USC §1983) or state constitutional to file the second Motion for Rehearing, was as we ll foreclosed from B. Did the Trial Court err in ruling that the Petitioner, by failing

for Rehearing. an additional reason for its underlying decision in denying the Motion p. 3 3

decision, McDonald conce des that she would have been obligated to file a following the rehearing, the ZBA identified a new or additional basis for its adding another dispositive ground, it should have granted her a rehearing. If, substant ively modify the basis of its original decision to deny her a variance by court. See RSA 677:4. According to McDonald, before the ZBA chose to opportunity to be heard, she was entitled to appeal directly to the superior request in its order on her motion for rehearing without affording her an because the ZBA identified a new ground supporting i ts denial of her variance rehearing with the ZBA in order to perfect her appeal. She contends that McDonald argues that she was not required to file a second motion for

this appeal was transferred on an interlocutory basis. denied. Because the ZBA’s counterclaim against McDonald is still pendin g, (Citations and quotations omitted.) McDonald’s motion for reconsideration was

or in any decisions pertaining to same. during a ny of the hearings pertaining to the petitioner’s application a variance when the release form was not discussed at all either had on the ZBA’s treatment of the petitioner’s application for Court cannot discern the impact the absence of a release form the benefit o f the ZBA’s decision on a motion for rehearing, the under RSA 677: p. 3 3, consider this appeal. Specifically, without board’s judgment in hearing the appeal, the Court cannot, its decision so that the court may have the benefit of the t he first opportunity to pass upon any alleged errors in Because the purpose of a rehearing is to afford the ZBA

Dziama v. City of Portsmouth, 140 N.H. 542 (1995), ruling that: 677: p. 3 3, I (1996). The superior court dismissed the case in reliance upon McDonald had not filed a second motion for rehearing with the ZBA. See RSA related claims, contending that the superior court lacked jurisdiction because alleged zoning violations. It also moved to dismiss McDonald’s appeal and The ZBA filed an answer and a counterclaim against McDonald for

her just compensation. She also sought damages under p. 4 4 2 U.S.C. § 198 p. 3 3. depriving her of all economically beneficial use of her land without providing and the law; and (4) engaged in an unconstitutional regulatory taking by denied her application based upon findings that were contrary to the evidence procedural due process by failing to provide a detailed basis for its findings; (3) issue in response to her motion for rehearing; (2) violated her right to violated her right to procedural due process by considering a new, substantive rehearing were unreasonable and unlawful. She alleged that the ZBA: (1) contending that the ZBA’s denials of her variance application and motion for McDonald appealed to the superior court, RSA 677:4 (Supp. 2004), 4

identified in its original order bu t, in fact, added a new dispositive ground. To however, did not deny McDonald’s rehearing request solely upon the grounds it rehearing, the thirty - day appeal period began to run. RSA 677: p. 4 4. The ZBA, request for a rehearing. When the ZBA voted to deny McDonald’s motion for the issue that was newly raised by the ZBA in its decision denying the initial rehearing request was rejected and a second motion for rehearing to challenge pursue an appeal to the superior court from the initial variance denial once the 677:4, would require a party in a case such as this one to simul taneously A literal reading of the rehearing and appeal statutes, RSA 677:2 and

correct any errors it may have made. Dziama, 1 p. 4 40 N.H. at 544 - 45. to the superior court, RSA 677:2 is designed to give the ZBA an opportunity to for rehearing from an adverse zoning board decision before allowing an appeal rehearing. RSA 677:3, I. By requiring an aggrieved party to first file a motion groun d for appeal that was not first presented to the ZBA in a motion for (2003). Unless the superior court finds “good cause,” it may not consider any Conservation Comm’n v. Hooksett Zoning Bd. of Adjustment, 149 N.H. 63, 65 was “illegal or unreasonable, in whole or in part.” RSA 677:4; see Hooksett superior court for determination of whether the order or decision of the ZBA rehearing is denied, the party aggrieved may, within thirty days, appeal to the by the ZBA when “in its opinion good reason” supports it. Id. When a 677:2 (Supp. 2004). A rehear ing is not a matter of right, and may be granted in respect to any matter determined in the action or proceeding . . . .” RSA has thirty days from any order or decision of the ZBA to “apply for a rehearing respect to the ZBA rehearing process, “any party to the action or proceedings” We turn first to the plain language of the applicable statutes. With

of legislative intent, State v. Warren, 1 p. 4 47 N.H. 567, 568 (2002). of a statutory term would compel an absurd result,” we examine other indicia ordinary meaning,” id., being mindful, however, t hat “where the literal reading as a whole.” Id. We “construe that language according to its plain and the intent of the legislature as expressed in the words of a statute considered v. City of Manchester, 15 0 N.H. 687, 689 (2004). “We are the final arbiter of superior court’s interpretation of the applicable statutes de novo. See Pelletier perfect her appeal to superior court is controlled by statute. We review the W hether McDonald was required to file a second motion for rehearing to

opportunity to review any errors it may have committed. established policy behind the rehearing process that permits the ZBA the first she could perfect her appeal. It urges us to follow Dziama, and preserve the for rehearing challenging its additional ground for denying the variance before The ZBA responds that McDonald was required to file a second motion

the superior court. second motion for rehearing in accord with Dziama before taking an appeal to p. 5 5

order. When addressing such an appeal, the superior court may, at its appeal any new issues, findings or rulings first raised by the ZBA in that denial the aggrieved party need not file a second motion for rehearing to preserve for motion. Accordingly, w e hold that when a ZBA denies a motion for rehearing, zoning board will render new findings or rulings in the denial of a rehearing rehearing, we conclude that the statutory scheme does not anticipate that a and the appeal period runs from the date the ZBA votes to deny a motion for required to pursue a motion for rehearing on any issue it later seeks to appe al appeal period under RSA 677:4. Because, by statute, the aggrieved party is though based in part upon an additional new ground, triggered the thirty - day denial of the motion for rehearing. The vote to deny the motion for rehearing, Unlike Dziama, in the case before us, the ZBA ruled on a new issue in its

zoning board granted a rehearing before deciding new issues. single a ppeal to the superior court would have been required because the Although we concluded that a second motion for rehearing was required, only a the new issues decided after the original rehearing motion. Id. at p. 5 545. newly decided issues and to permit the superior court to consider on appeal rehearing to give the trial tribunal the opportunity to corre ct its error on the result remains the same, the aggrieved party must file a second motion for rehearing creates a new aggrievement” or “raises any new issues,” even if the filing a second motion for rehearing. Id. We held that when a “decision upon denied on the merits. Id. The plaintiff appealed to the superior court without another hearing was conducted, the application for special exception was Dziama, 1 40 N.H. at 543. The motion for rehearing was granted, and after plaintiff’s application for a special exception was denied on procedural grounds. The case before us differs significantly from Dziama. In that case, the

will not create one. not envisi on a bifurcated appeal process on a single variance denial, and we process. The statutory scheme for zoning appeals to the superior court does legislature sought to promote when designing the rehearing and appellate circumstance would undercut the policy favoring judicial economy that the before two different tribunals: the superior court and the ZBA. Such a the judicial process for a single variance matter to be simultaneously pending legislature. It would be illogical and unduly cumbersome on the parties and RSA 677:2 and 677:4, leads t o absurd results, which were not intended by the We conclude that a literal reading of the rehearing and appeal statutes,

preclude her from challenging the denial of her variance application. application, McDonald’s failure to file a second motion would effectively Because the new ground was independently dispositive of her variance required McDonald to file a second motion for rehearing with the ZBA. appeal this new issue, a literal reading of the rehearing statute would have p. 6 6

NADEAU, DALIAN IS, DUGGAN and GALWAY, JJ., concurred.

with this opinion. claims and remand to the superior court for further proceedings consistent Accordingly, we reverse the dismissal of McDonald’s appeal and related

unde r the “good cause” exception in RSA p. 6 677:3, I. may consider on appeal an issue not first set forth in a motion for rehearing preserve them for appellate review. We note, however, that the superior court need to file a motion for rehearing on all issues ruled upon, at that time, to with Dziama, after the rehearing and new order, the aggrieved p arty would then without adding new grounds for denying the variance application. In keeping response to a motion for rehearing would be for it to grant the rehearing motion its initial decision and intends to make n ew findings and rulings on them in A better practice for the ZBA to take when it identifies new grounds for

necessary to resolve the appeal. discretion, stay the matter and remand to the ZBA for further hearing as