2005-211, K & B ROCK CRUSHING & a. v. TOWN OF AUBURN

The respondent, Town of Auburn (town), appeals a decision

Stephen Blaha, by brief, as intervenor, pro se.

of law), for intervenors Canedy, Canedy, and Chalmers. Gottesman & Hollis, PA, of Nashua (Anna B. Hantz on the memorandum

brief), for the respondent. Wadleigh, Starr & Peters, PLLC, of Manchester (Dean B. Eggert on the

Blaine on the brief), for the petitioners. Errors may be reported by E-mail at the following address: Hebert & Uchida, PLLC, of Concord (Richard Y. Uchida and Quentin J.

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-211 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as excavation to the board.

p. 2 the petitioners were entitled to submit an application for 5.5 acres of

ascribe the plain and ordinary meanings to the words used.”

rehearing before the board. The court denied the town’s motion, and ruled that jurisdiction to hear the appeal because the petitioners did not first move for a the planning board is the body authorized to issue excavation permits. court. The town moved to dismiss, arguing that the superior court lacked

therefrom most favorably to [them].” [petitioners’] pleadings to be true and construe all reasonable inferences drawn

They assert that RSA 155-E:9 allows direct appeal to the superior court when filing a motion for rehearing, the petitioners directly appealed to the superior require them to move for a rehearing before appealing to the superior court. which provides for appeals from an excavation permit proceeding, did not

susceptible of a construction that would permit recovery. We assume the

legislature's intent as expressed in the words of the statute considered as a excavation permit or an application for an amended permit, any If the regulator disapproves or approves an application for an appeal presents a question of law, which we review petitioners’ application was complete only for a 1.6-acre excavation. Without follows: After proceedings not relevant to the issue before us, the board ruled that the appeal to the superior court. The petitioners respond that RSA 155-E:9 (2002), procedure for appeals from decisions on excavation permits, provides as twelve years, with “Phase I” involving excavation of approximately 1.6 acres. RSA 155-E:9, which is entitled “Appeal” and which governs the

Corp. v. Town of Pelham, 152 N.H. 114, 116 (2005) (citation omitted). whether the allegations in the [petitioners’] pleadings are reasonably Woodview Dev.

In matters of statutory interpretation, “[w]e are the final arbiters of the

superior court was essentially asked to construe RSA 155-E:9. Thus, this N.H. ___, ___ (decided April 7, 2006). In deciding the motion to dismiss, the were required to move for a rehearing before the board as a prerequisite to their In the Matter of Juvenile 2004-789-A, 153 The application stated that 5.5 acres of the land would be excavated over

In considering the town’s motion to dismiss, “our standard of review is

On appeal, the town argues, among other things, that the petitioners board for a permit to excavate and crush rock on a tract of land in Auburn.

The record supports the following facts. The petitioners applied to the

reverse. Planning Board (board) an application for a permit to excavate 5.5 acres. We on a motion for

p. 3 677:4-:15 is authorized only when a “person affected by the regulator’s decision

an excavation permit decision to the superior court in conformity with RSA RSA 155-E:9, involving decisions on excavations, makes clear that an appeal of planning board decisions involving plats or subdivisions, the plain language of

Although RSA 677:15 provides for direct appeals to the superior court from

forth that such decision is illegal or unreasonable in whole or in part . . . .” subdivision may present to the superior court a petition, duly verified, setting aggrieved by any decision of the planning board concerning a plat or

upon RSA 677:15 (Supp. 2005), which states, in relevant part: “Any persons

677:4-:15 at that stage of the proceeding. Thus, even if we assume that the

677:15 to a person affected by the board’s to the superior court without the necessity of moving for a rehearing. They rely moving for a rehearing. If that person then wishes to appeal the regulator’s

an excavation permit. RSA 155-E:9 does not incorporate the provisions of RSA

(emphasis added). The petitioners seek to apply the appeal procedures in RSA in this case, the petitioners were allowed to appeal the initial decision directly rehearing to the regulator” chooses to appeal. RSA 155-E:9 regulator’s decision wishes to appeal the regulator’s decision, he may do so by

authorizes an interested person to appeal the regulator’s for a rehearing before going to Superior court”). Nothing in the statute

the selectmen of the town or the board of adjustment; or

The petitioners argue that because the “regulator” was a planning board permit decision. The statute states that if an interested person affected by the petitioners did in this case. conformity with the procedures specified in RSA 677:4-:15, yet that is what the the legislative body of the city . . . . initial decision in

522-23 (2000) (stating that, under RSA 155-E:9, the “aggrieved party must file Loughlin, New Hampshire Practice, Land Use Planning and Zoning § 36.17, at Supp. 2005), which generally govern appeals to the superior court. annual or special meeting duly warned for the purpose so provides, See 15 P. rehearing decision, he may appeal in conformity with RSA 677:4-:15 (1996 &

RSA 155-E:9 clearly sets forth the procedure to appeal an excavation conformity with the procedures specified in RSA 677:4-15. decision on a motion for rehearing to the regulator may appeal in determined thereby. . . . Any person affected by the regulator’s (b) If there is no planning board, the selectmen of the town or

(a) The planning board of a city or town, or if a town at an

“Regulator” is defined in relevant part in RSA 155-E:1, III (Supp. 2005) as:

regulator for a rehearing on such decision or any matter interested person affected by such decision may appeal to the p. 4 Since the procedures in RSA chapter 677 do not apply until

rehearing as provided in RSA 677:2 . . . .” are authorized to appeal in conformity with the procedures in RSA 677:4-:15. body shall be taken unless the appellant shall have made application for

only persons who wish to appeal a regulator’s ruling on a motion for rehearing of the zoning board of adjustment, a board of appeals, or the local legislative to appeal a regulator’s initial ruling may do so by appealing for a rehearing; between a denial and a disapproval, and we can find none. Further, the plain language of RSA 155-E:9 provides that an interested person who wishes

E:9. RSA 677:3 states, in relevant part, “No appeal from any order or decision court. This argument lacks merit, as the petitioners articulate no distinction RSA 677:3 (1996) into RSA 155-E:9, or included similar language in RSA 155-:15 does not mean that the legislature intended rehearings to be optional. The for rehearing, the petitioners argue, the legislature would have incorporated

RSA 677:3 would be superfluous.

RSA 155-E:9, which allowed the petitioners to appeal directly to the superior decision to incorporate the procedures specified in RSA 677:4-:15 instead of :3- “denied” their initial application, the board never “disapproved” it as stated in does not require such a motion. If the legislature wanted to require a motion Finally, the petitioners make a brief argument that, though the board

rehearing has been ruled upon, the incorporation of the language at issue in

regulator’s approval or disapproval of an excavation permit. The legislature’s for a rehearing before the regulator prior to appealing to the superior court, but 155-E:9 clearly instructs as to how interested persons are to appeal a 155-E:9 the language used in RSA 677:3 to require motions for rehearing. RSA We are not persuaded. The legislature did not need to include in RSA specific procedures in RSA 155-E:9.

zoning enabling laws. zoning, shows the legislature’s intent to grant authority independent of the safety and welfare, instead of in Title LXIV, which governs land planning and

of the authority granted by the zoning enabling legislation.”

municipalities to regulate a particular land use. The petitioners next argue that RSA 155-E:9 allows an applicant to move

procedure established by RSA 155-E:9. to apply appeal procedures established in the zoning laws that conflict with the

legislature’s placement of the excavation statute in Title XII, governing public

[is] an exercise of the police and general welfare powers of the towns, exclusive Thibeault, 129 N.H. 454, 458-59 (1987). “[T]he regulation of earth excavation

We additionally note that RSA 155-E:9 is a specific grant of authority to

regulator is a planning board, the petitioners still failed to follow the proper petitioners are correct that the procedures in RSA 677:1 p. 5 5 govern when the 5

appeal.

thus in error. Accordingly, we need not address the remaining issues raised on

RSA 1 p. 5 55-E:9 before appealing to the superior court. application, it was incumbent upon them to apply for a rehearing pursuant to BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. appeal directly to the superior court. Because the board denied the petitioners’

by RSA 1 p. 5 55-E:9. The trial court’s denial of the town’s motion to dismiss was petitioners’ appeal because they did not follow the appeal procedure required We conclude that the trial court lacked jurisdiction to hear the

permit requires a motion for rehearing, but a denial allows a petitioner to petitioners provide no support for their argument that the disapproval of a