2004-256, 47 RESIDENTS OF DEERING, NH v. TOWN OF DEERING & a.; CARROLL J. GREEN v. TOWN OF DEERING & a.

and orally), for the appellant, Carroll J. Greene. Brown, Olson & Wilson, P.C., of Concord (David J. Shulock on the brief

appellees 47 Residents of Deering, N.H. Leesteffy Jenkins, of Hillsborough, by memorandum of law and orally, for

Adjustment. Gregory E. Michael orally), for appellee Town of Deering Zoning Board of G.E. Michael, PA, of Merrimack (Patricia Panciocco on th e brief, and

No. 2004 - 256 Hillsborough - nor thern judicial district

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. O pinions 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, New 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

ZBA’s decisions: (1) that it had subject matter jurisdiction to hear the residents’ On appeal, Greene argues that the trial court erred by not reversing the

upheld the ZBA’s decision. This appeal followed. effective date of the ordinance. Greene appealed to the superior co urt, which Ordinance applicable to junkyards that were not “legally operating” on the Greene complied with the additional provisions of the Deering Zoning that the selectmen could not i ssue Greene future junkyard licenses unless as of the effective date of the Deering Zoning Ordinance. The ZBA concluded Zoning Ordinance, and therefore Greene’s junkyard was not “lawfully existing” this pr ohibited expansion occurred prior to the effective date of the Deering non - conforming uses, including Greene’s junkyard. The ZBA concluded that Aquifer Protection Ordinance (APO) that prohibited the expansion of certain found that Greene had increased his inventory in violation of a provision of the selectmen’s March p. 2 29, 2002 decision to renew Greene’s license. The ZBA accepted the appeals of the other decisions, however, and overturned the license was moot, as it had expired one year after its issuance. The ZBA concluding that it h ad not been timely filed and that consideration of the The ZBA declined to address the appeal of the March 30, 2001 decision,

30, p. 2 2001, March 29, 2002, and September 18, 2002, to the ZBA. November 7, 2002, the residents appealed the selectmen’s decisions of March September 18, 2002, the selectmen decided not to r evoke the license. On concerns about the March 29, 2002 renewal, a hearing was held. On After appellees 47 Residents of Deering, N.H. (the residents) voiced

“grandf athered.” On March p. 2 29, 2002, the selectmen renewed that license. approved the issuance of Greene’s license, noting that Greene’s use was to continue to operate his junkyard. On March 30, 2001, the selectmen operating a commercial junkyard prior to March 13, 2001, applied for a license comply with additional provisions to obtain a lice nse. Greene, who had been persons not “legally operating” a commercial junkyard as of that date had to the date of the enactment of the ordinance. The ordinance provided that license to a previously o perating commercial junkyard that “lawfully existed” on certain conditions. Additionally, the ordinance provided for the issuance of a issuance of a commercial junkyard license, by the town’s selectmen, upon Deering (town) adopted the Deering Zoning Ordinance, which predicated the The record reflects the following facts. On March 13, 2001, the Town of

to operate his commercial junkyard. We reverse and remand. expanded his non - conforming use, and ruling that he had no right to continue Zoning Board of Adjustmen t (ZBA), which found that Greene had unlawfully Superior Court (Barry, J.) upholding a decision of appellee Town of Deering DALIANIS, J. The appellant, Carroll J. Greene, appeals an order of the p. 3 3

injunctive relief to “[a]ny person owning real property whose prop erty is directly RSA 2 p. 3 36:129 provides recourse to the superior court in the form of

The residents’ appeals did not concern fencing. superior co urt for any citizen who wishes to contest fencing for a new junkyard. did not address the residents’ appeals. RSA 2 p. 3 36:123 provides recourse to the licensee who are affected by the denial or granting of a license. Therefore, it application for a junkyard license is denied, not for persons other than the RSA 236:121 provides recourse to the superior court for a licens ee whose

construction. In re Sandra H., 150 N.H. 6 p. 3 34, 641 (2004). unambiguous, its meaning is not subject to modification by judicial meanings to wo rds used. When the language used in the statute is clear and examine its language and, where possible, ascribe the plain and ordinary words of the statute itself. When construing the meaning of a statute, we first We are the final arbiter of the meaning of a statute as expressed in the

disagree. by RSA 2 p. 3 36:121 (1993), RSA 236:123 (1993), or RSA 236:129 (1993). We (1996). Greene contends that the appeals should instead have been governed license. The ZBA determined that it had jurisdiction pursuant to RSA 676:5 him a junkyard license and Septem ber 2002 decision not to revoke that hear the residents’ appeals of the selectmen’s March 2002 decision to grant Greene first argues that the ZBA lacked subject matter jurisdiction to

p. 3 355 (2004). legally erroneous. Fox v. Town of Greenland, 151 N.H. ___, ___, 864 A.2d 351, uphold the trial court’s decision unless it is not supported by the evidence or is balance of probabilities that the board’s decision was unreasonable. We will demonstrate that an error of law was committed or persuade the court by the unlawful or unreasonable. In the trial court, the appealing party must a zoning board of adjustment’s decision has the burden to show that it is Judicial review of zoning cases is limited. The party seeking to set aside

need only address Greene’s first three arguments. enforcing its zoning ordinance against him. For the reasons that follow, we violating the APO, and his request for an injunction prohibiting the town from declaration as to the number of cars that he may maintain on his lot without his right to operate a junkyard, and its dismissal, as moot, of his request for a trial court’s decision that his unlawful expansion completely divested him of in violation of the APO prior to March 1 p. 3 3, 2001. Greene also challenges the license; and ( p. 4 4) that Greene had unlawfully expande d his non - conforming use had a “lawfully existing” use as of March 13, 2001, each time they reissued his Deering Zoning Ordinance required the selectmen to determine whether Greene appeals; (2) to waive the filing d eadline for the residents’ appeals; (3) that the 4

(Emphasis added.) decision taken under RSA 676:5 shall be filed within 30 days of the decisi on.” Procedure” (ZBA Rules of Procedure) provides, “Appeals from an administrative Board of Adjustment Town of Deering New Hampshire By Laws/Rules of the grounds thereof.” (Emphasis adde d.) Paragraph 5.1(d) of the “Zoning from whom the appeal is taken and with the board a notice of appeal specifying reasonable time, as provided by the rules of the board, by filing with the officer that an appeal to a zoning board of adjustment “shall be taken within a the ZBA had no authority to waive the filing deadline. RSA 676:5, I, provides jurisdiction under RSA 676:5, the residents’ appeals were not timely filed, and Greene’s second argument is that even if the ZBA had subject matter

appeals of the selectmen’s March and September 2002 decisions. conclude that the ZBA had authority, under RSA 676:5, to hear the residents’ the zoning ordinances here at issue were adopted pursuant to RSA 67 p. 4 4:16, we enforcement of that ordin ance. Assuming, as no party argues otherwise, that application of a zoning ordinance when making a decision involving the that a board of selectmen erred in its interpretation, construction or board of adjustment has the power to hear and decide appeals if it is alleged By construing the above statutes together, we conclude tha t a zoning

interpretation or application of the terms of the ordinance.” administrative officer” includes “any decision involving construction, board of se lectmen.” RSA 676:5, II(b) provides that a “decision of the . . . has responsibility . . . for enforcing the ordinance, and may include a . . . . . . .” RSA 676:5, II(a) defines an “Administrative Officer” as any “board who enforcement of any zoning ordinance adopted pursuant to RSA 67 p. 4 4:16 is an error in any . . . decision . . . made by an administrative offi cer in the of adjustment has the power to “[h]ear and decide appeals if it is alleged there administrative officer.” RSA 674:33, I(a) (1996) provides that the zoning board RSA 674:33 may be taken by any person aggrieved . . . by any decision of the of adjustment concerning any matter within the board’s powers as set forth in addressed the residents’ appeals. RSA 676:5, I, provides, “Appeals to the board Instead, as the ZBA and trial court correctly determined, RSA 676:5

the residents’ appeals. decision to reissue Greene’s license. Therefore, RSA 236:129 did not address sought review of the selectmen’s interpretation of zoning ordinances in the injunction for Greene’s violati on of a provision of the subdivision; rather, they when in conflict with this subdivision.” The residents were not seeking an yards . . . but rather is in aid thereof. Specific local ordinances shall control not in dero gation of zoning ordinances or ordinances for the control of junk (1993 & Supp. 200 p. 4 4). However, RSA 236:124 provides that the “subdivision is Vehicle Recycling Yards and Junk Yards subdivision, RSA 236:111 -:129 affected by the site of a junk yard . . . maintained in violation” of the Motor p. 5 5

the provisions were renumbered when the ordinance was readopted, the adopted on March 13, 2001. It was readopted on March 12, 2002. Although Deering Zoning Ordinance. The Deering Zoning Ordinance was originally Greene’s third argument is that the ZBA erroneously construed the

that the appeals were timely filed. defined by RSA 676: p. 5 5, I. Therefore, we conclude the ZBA properly determined argue that the residents’ appeals did not occur within a reasonable time as 2 002 and September 18, 2002 appeals to proceed. Greene does not separately ordinance.” The ZBA voted, by a three to two majority, to allow the March 29, of these rules not otherwise mandated by state or federal law or by town states, “The board, by at least three concurring votes, may waive any provision ZBA Rules of Procedure, however, do contain such a pro vision. Paragraph 1.2 HZBA discretionary authority to waive its filing deadline. Id. at 175 - 76. The no provision in either the enabling statute or the HZBA rules that granted the Procedure that distinguish this case. In Daniel, we pointed out that there was Greene overlooks language in both Daniel and the ZBA Rules of

disagree. literally, and hold that the residents’ appeals were not timely filed. We Gr eene argues that we must require the ZBA to apply the thirty - day rule identical language to that found in the rules of the HZBA in Daniel. Thus, Greene points out that the ZBA Rules of Procedure contain virtually

literally. Id. consistent with the enabling statute, the HZBA was required to apply the rule N.H. at 17 p. 5 5 (brackets omitted). We held that because the t ime limit was under RSA 676:5 shall be filed within 14 days of the decision.” Daniel, 134 procedure establishing that “appeals from an administrative decision taken the Henniker Board of Selectme n, even though the HZBA had adopted rules of in an appeal that had been filed fifteen days after an administrative decision by Henniker Zoning Board of Adjustment (HZBA) allowed the plaintiffs to proceed relies upon Da niel v. B & J Realty, 134 N.H. 174, 175 - 76 (1991). In Daniel, the authorizes a zoning board to do so.” As support for his contention, Greene because there is no authority in the enabling legislation, RSA 676:5, I, that period for filing an appeal, the board may not thereafter waive that time period deadline because “[o]nce a zoning board has defined the ‘reasonable time’ Greene contends that the ZBA improperly waived its thirty - day filing

and allow the appeals to proceed. administrative decision. Nonetheless, the ZBA voted to waive its filing deadline outside the express requirement that an appeal be filed within thirty days of a n 2002 and September 18, 2002 decisions of the selectmen. Both decisions fall On November 7, 2002, the residents filed their appeals of the March 29, p. 6 6

grandfathering decision was, in fact, made on March 30, 2001; however, in again in March 2002. The ZBA stated, “The Selectmen have argued that the “grandfathering” decision would have to be made not only in March 2001, but operating” as of that date. The ZBA determined, however, that the additional requirements imposed by provision two for junkyards not “legally existing” as of March 13, 2001, could operat e without having to meet the the Deering Zoning Ordinance, which provides that junkyards “lawfully the selectmen’s use of the term “grandfathered” as referring to provision one of a place where [he] otherwise may not be able to operate.” The ZBA interpreted “grandfathered.” They explained that this meant that Greene could “operate in letter authorizing Greene’s license, the selectmen described Greene’s use as 2001, and reissued that license on March 29, 2002. In the March 30, 2001 As described above, the selectman issued Greene a license on Ma rch 30,

Duffy v. City of Dover, 149 N.H. 178, 181 (2003). construed according to the common and approved usage of the language. general ly govern our review, the words and phrases of an ordinance should be review de novo. Because the traditional rules of statutory construction The interpretation of a zoning ordinance is a question of law, which we

ordinance as the Deering Zoning Ordinance. We will refer to both the 2001 adopted ordinance and the 2002 readopted

during the license period . . . . this ordinance and RSA 23 p. 6 6:111, et seq. have been complied with licenses shall be renewed without a hearing if all the provisions of thereafter upon payment of an annual license fee . . . . Junkyard March 31st of each year. Junkyard licenses shall be renew ed (4) Pursuant to RSA 236:121, junkyard licenses shall expire on

. . . .

Conservation Commission . . . . first received a recommendation from the Planning Board and the provision may be licensed by the Boar d of Selectmen after having (2) Junkyards not legally operating on the effective date of this

be licensed by the Board of Selectmen . . . . this provision [March 13, 2001] may, upon application therefore, (1) Commercial Junkyards law fully existing on the effective date of

Ordinance, read, in pertinent part, as follows: Deering Zoning Ordinance, and Paragraph 4.4k of the 2002 Deering Zoning substance of the provisions remains the same. Paragraph 4k of the 2001 p. 7 7

determined that Greene’s alleged pre - March 13, 2001 expansion of his non - Furth er, we need not address whether the trial court correctly

“grandfathered” is pending before us. selectmen’s March 30, 2001 decision that determined that Greene’s use was “lawfully existing” use as of March 13, 2001, because no appeal of the Zoning O rdinance. As a result, we do not address whether Greene had a We conclude that the ZBA erred in its interpretation of the Deering

period. 2002; rather, it only required an evaluation of Greene’s use during the license reconsider that determination when Greene sought to renew his license in made on March 30, 2001, provision four did not require the selectmen to had a lawfully existing use as of March 13, 2001. Once that determination was selectmen to issue the March 2001 license, they had to determine that Greene the only time its interpretation was necessary – on March 30, 2001. For the include any use prior to March 13, 2001. Provision one was interpreted – for the license was granted, to March 31, 2002, the date it expired – does not perio d for the March 29, 2002 determination – from March 31, 2001, the date “complied with during the license period.” (Emphasis added.) The relevant commercial junkyard license may be reissued if all provisions have been erroneous as a matter of law. Provision four of the ordinance provides that a We find the ZBA’s interpretation of the D eering Zoning Ordinance

initial time. We agree. “lawfully existing” use every time they reissued Greene’s license, but only the Ordinance did not require the selectmen to reevaluate whether Greene had a 29, 2002 decision to issue his license. Green e argues that the Deering Zoning whether he had a “lawfully existing” use as of March 13, 2001, in their March Greene contends that the selectmen were not required to determine

requirements imposed by provision two of the ordinance. use as of March 13, 2001, and was therefore required to meet the add itional concluded, as described above, that Greene did not have a “lawfully existing” 2002 licensing decision, the ZBA reviewed that decision. The ZBA then a “lawfully existing” use as of March 13, 2001, when they made their March 29, determining that the selectmen were required to consider whether Greene had by the Selectmen each time an application for renewal is made.” After annually . . . all criteria necessary for granting such license must be considered junkyard license. The ZBA stated, “Since a junkyard license must be renewed Deering Zoning Ordinance, which provides for the annual renewal of a In making this determination, the ZBA relied upon provision four of the

would have to have been made again in March of 2002.” order to follow the provisions of [the Deering Zoning Ordinance], that decision p. 8 8

BRODERICK, C.J.