2005-598, ARNOLD GOLDSTEIN v. TOWN OF BEDFORD & a.

No. 2005-598 Hillsborough-northern judicial district

enforcement action. contacted the town’s legal counsel, and decided against pursuing an

conforming lots. The town’s zoning administrator investigated the matter,

allegedly violated the zoning ordinance governing the merger of two non-

Bedford (town), notified town officials that defendant Christopher Evans had , of Manchester (Gregory E. Michael, of Concord (Matthew R. Serge In January 2005, the plaintiff, a resident and taxpayer in the town of

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

standing. We affirm. the Superior Court (Conboy, J.) dismissing his mandamus petition for lack of BRODERICK, C.J. The plaintiff, Arnold Goldstein, appeals an order of

Barton L. Mayer orally), for defendant Town of Bedford. Upton & Hatfield, LLP on the brief, and

Panciocco on the brief, and Ms. Panciocco orally), for the plaintiff. to press. Errors may be reported by E-mail at the following address: Wiggin & Nourie, P.A. and Patricia M.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 22 as p. 2 Ossipee Auto Parts v. Ossipee Planning Board

pled by the plaintiff as true, construing them most favorably to the plaintiff.” granted. To make this determination, the court would normally accept all facts plaintiff’s pleadings are sufficient to state a basis upon which relief may be

trial court is required to determine whether the allegations contained in [a]

enforce a local zoning ordinance. In ruling on a motion to dismiss, usually “the town, he has standing to appeal a decision of the zoning administrator not to The plaintiff argues that because he is a resident and taxpayer in the

granted the town’s motion. This appeal followed. that he lacked standing to bring it. Following the hearing, the trial court for relief, the town filed a motion to dismiss the plaintiff’s petition contending

In May, at a hearing held in the superior court on the plaintiff’s request

court’s task is to determine legislative intent.” Silva v. Botsch matter of statutory interpretation. “In any statutory interpretation case, this governed by statute. Whether the plaintiff has standing to do so is, therefore, a

town. he had a right to mandamus relief because of his status as a resident of the action as a private citizen to enforce the ordinance. The plaintiff asserted that 2 whether the plaintiff has sufficiently demonstrated his right to claim relief.” Id

statute itself.” Id

See administrative decisions concerning the enforcement of zoning ordinances is grounds that he lacked standing because he was not an aggrieved party.

declare the lots merged; and (3) award him fees and costs for having to take plaintiff’s unsubstantiated allegations and determine, based on the facts, challenges the plaintiff’s standing to sue, the trial court must look beyond the. “When that language is plain and unambiguous, we need sufficiency of the plaintiff’s legal claim, but instead, as in the present case, 601 (1980). “In making that determination, we begin with the language of the

We agree with the trial court that the authority to challenge local ordinance enforced.” The ZBA denied the plaintiff’s administrative appeal on

at 403-04.

its zoning ordinance, cancel Evans’ existing permits, and enjoin both the superior court requesting that it: (1) order the town to investigate and enforce (citation omitted). “When, however, the motion to dismiss does not contest the

town and that he was “just a Bedford resident who would like to see the zoning interest in the zoning enforcement matter different from any other citizen in the hearing before the ZBA in April, the plaintiff acknowledged that he had no

The plaintiff had earlier filed a petition for a writ of mandamus in the

Adjustment (ZBA) challenging the decision of the zoning administrator. At the In March, the plaintiff filed an appeal with the Bedford Zoning Board of

RSA 676:5, I (1996). some “direct definite interest in the outcome of the proceedings.” Caspersen v.

p. 3 To demonstrate that he is a “person aggrieved,” the plaintiff must show

the statutes, he lacks standing to appeal the decision of the administrative In Nautilus

their businesses,” a harm that did not entitle them to standing. Id [them] as a result of the ZBA’s decision is that of increased competition with

rehearing under RSA 677:2.” same statute defines “person aggrieved” as “any party entitled to request a Because the plaintiff concedes that he is not a “person aggrieved” under

“persons aggrieved” because “the only adverse impact that may be felt by

aggrieved.” At oral argument, the plaintiff conceded that under the Nautilus

center. Nautilus

aggrieved” by the order or decision of the ZBA. RSA 677:4 (Supp. 2006). The disagree.. at 452.

superior court’s determination that the plaintiffs did not fit the category of and owners of a business within the commercial district.” Id. We affirmed the the ZBA (RSA 676:5) or to the superior court (RSA 677:4) to “persons based upon their status as “citizens of the town, property owners, taxpayers, administrative official concerning enforcement of a zoning ordinance either to, 139 N.H. at 451. The plaintiffs claimed standing to appeal The pertinent statutes plainly limit standing to appeal a decision of an board and ZBA of Exeter Hospital’s site plan for the construction of an exercise sought review in the superior court of approval granted by the local planning

, the plaintiffs, owners of health clubs in the town of Exeter, standing is a factual determination in each case.” Weeks Restaurant Corp. v. interest in the outcome of a planning board or zoning board proceeding to have then be brought in the superior court within thirty days by “[a]ny person

seek mandamus relief to require the town to enforce its zoning ordinance. We 2006). An appeal from the ZBA’s decision on the motion for rehearing may He argues, however, that he has standing as a town resident and taxpayer to a rehearing” within thirty days after a decision of the ZBA. RSA 677:2 (Supp. administrator’s decision. Nautilus of Exeter v. Town of Exeter decision, he did not qualify as an aggrieved person under the statutory scheme.

City of Dover, 119 N.H. 541, 544-45 (1979).

452 (1995) (quotation and ellipsis omitted). “Whether a party has a sufficient

the action or proceedings, or any person directly affected thereby may apply for all persons in the community who might feel that they are hurt by” a local Town of Lyme, 139 N.H. 637, 640 (1995). “[S]tanding will not be extended to

Id not look beyond the statute itself for further indications of legislative intent.”

administrative officer may appeal to the ZBA. “[T]he selectmen, any party to Pursuant to RSA 676:5, I, “any person aggrieved” by any decision of an

. p. 4 4

Affirmed

resident and taxpayer, . . . [he] lacks standing to seek mandamus relief.”

DALIANIS, DUGGAN and GALWAY, JJ., concurred. legislature to limit standing for zoning appeals to persons aggrieved. See otherwise would allow the plaintiff to circumvent the clear intent of the

evidence that he has an interest in this action beyond that of a concerned

public at large and not the interests of individuals. See

officer to the ZBA. Because he lacks standing to appeal to the ZBA, we

As the trial court correctly concluded, “Since [the plaintiff] has proffered no (purpose of zoning is to enhance the public health, safety and general welfare).

N.H. 63, 68 (2003). The zoning statutes are primarily intended to protect the Hooksett Conservation Comm’n v. Hooksett Zoning Bd. of Adjustment, 1 p. 4 49