2005-217 STANLEY COLLA & a. v. TOWN OF HANOVER

The plaintiffs, Stanley and Judith Colla, appeal the order of

Spector on the brief), for the defendant. Mitchell & Bates, P.A., of Laconia (Walter L. Mitchell and Laura A.

plaintiffs. Errors may be reported by E-mail at the following address: Clauson & Atwood, of Hanover (K. William Clauson on the brief), for the

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. 2005-217 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Grafton 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 defendant on both grounds and dismissed the appeal.

p. 2 insufficient motion for reconsideration. The trial court agreed with the RSA 677:4 (Supp. 2005) because it merely incorporated, by reference, the errors”; and (2) the plaintiffs’ appeal to the superior court failed to comply with

for the [ZBA] to understand what its errors may have been and address those reconsideration to the ZBA.

hardship” under

motion for rehearing did not satisfy RSA 677:3. We are the final arbiter of the

677:3 (1996) because it was “so broad and non-specific that it was impossible unreasonable” for the reasons set forth in their attached motion for is not supported by the evidence or is legally erroneous.

the defendant asserted, the ZBA had found that there was no “unnecessary unroofed deck or locating the proposed porch at the front of the house.” Thus, achieving the desired benefit of the variance, including constructing an

The plaintiffs first argue that the trial court erred when it ruled that their

Town of Effingham Zoning Bd. of Adjustment, 152 N.H. 171, 174 (2005). denying the variance, plaintiffs’ motion for reconsideration to the ZBA failed to comply with RSA superior court’s interpretation of applicable statutes de novo. McDonald v. requirements.” They set forth the reason that the ZBA had provided for motion for reconsideration), and stated that these were “illegal and Id. We review the N.H. 74, 77 (2005). We will uphold the trial court’s decision on appeal unless it Our review in zoning cases is limited. Harrington v. Town of Warner, 152

part, that the ZBA denied the variance because “feasible alternatives existed for

The defendant later moved to dismiss the appeal on two grounds: (1) the their home[,] which required a variance because of zoning setback appealed (the denial of the variance request and subsequent denial of their superior court. In their appeal, the plaintiffs identified the ZBA decisions Boccia, 151 N.H. at 92-94.

to to due process and equal protection of the laws”; (3) “[t]he decision is contrary In answering the appeal, the defendant, Town of Hanover, averred, in

their motion, the plaintiffs stated that they had applied “for a screened deck for The ZBA denied the plaintiffs’ motion, and the plaintiffs appealed to the

contrary to the ordinance.” Boccia v. City of Portsmouth [, 151 N.H. 85 (2004)]”; and (4) “[t]he decision is

decision is unreasonable”; (2) “[t]he decision denies their constitutional rights they stated that they requested rehearing on the following grounds: (1) “[t]he

The plaintiffs timely moved for reconsideration of the ZBA’s denial. In

porch located in the front – without substantial hardship.” the desired benefit without a Variance – including an unroofed deck . . ., or a p. 3 3

for their motion.

that a party may not appeal a zoning board decision: complained of is unlawful or unreasonable.” RSA 677: p. 3 3, I. It further provides

RSA p. 3 31:75. The plaintiffs “sought a rehearing by motion which specified was claimed that the zoning board’s decision was unreasonable or unlawful. of Adjustment, 146 N.H. 263 (2001), we distinguished DiPietro. There, the motion for rehearing to a zoning board set forth “every ground” upon which it In Town of Plaistow Board of Selectmen v. Town of Plaistow Zoning Board

reconsideration is sought. In plaintiffs could have stated their grounds “at least in general terms.” Id.

Id. at 176. We stated that, even without the minutes, the

minutes did not relieve the plaintiffs of their obligation to specify the grounds motion. See id. at 175-76. We held that the temporary unavailability of these minutes of the zoning board hearing were unavailable when they filed their was “unlawful or unreasonable.” that they were unable to specify the grounds for their motion because the set forth fully every ground upon which it is claimed that the decision or order reasons therefor.” DiPietro, 109 N.H. at 175 (emphasis added). They argued

shall allow the appellant to specify additional grounds. instance, we interpreted the predecessor to RSA 677: p. 3 3, which required that a consideration by a court unless the court for good cause shown set forth in the application shall be urged, relied on, or given any DiPietro v. Nashua, 109 N.H. 174, 176 (1968), for requirement that a party “set forth fully every ground” on which rehearing or 31:75 (1970) (repealed), give some guidance regarding the meaning of the Our prior decisions interpreting either RSA 677:3 or its predecessor, RSA

must “set forth fully every ground” on which the party argues that the decision provides, in pertinent part, that a motion for rehearing to a zoning board, “shall Id. Thus, to comply with this statute, a motion for rehearing to a zoning board

and, when such application shall have been made, no ground not unless the appellant shall have made application for rehearing . . .

N.H. 4 p. 3 38, 440 (1981) (quotation omitted). Toward this end, RSA 677:3 . . . before an appeal to the court is filed.” Fisher v. Town of Boscawen, 121 adjustment shall have a first opportunity to correct any action it has taken, “The rehearing process is geared to the proposition that the board of

ambiguous, we need not look to legislative intent. Id. subject to modification. Id. Unless we find that the statutory language is Id. Where the language of a statute is clear on its face, its meaning is not possible, construe that language according to its plain and ordinary meaning. interpreting a statute, we first look to the language of the statute itself, and, if whole. Pelletier v. City of Manchester, 150 N.H. 687, 688 (2004). In intent of the legislature as expressed in the words of a statute considered as a p. 4 677:4.

the trial court erroneously ruled that their appeal failed to comply with RSA (Quotation omitted.) Additionally, the plaintiffs’ brief does not discuss whether upon which [they] believed the decision to be unlawful or unreasonable.”

ZBA “deprived the ZBA of the opportunity to understand the specific grounds

illegal or unreasonable.” RSA p. 4 677:4.

whether the trial court correctly ruled that their motion for rehearing to the comply with RSA p. 4 677:4. The only issue raised in the notice of appeal is notice of appeal did not challenge the trial court’s dismissal for failure to 4

the grounds upon which the [zoning board] decision or order is claimed to be

because it failed to comply with both RSA 677:3 and RSA p. 4 677:4. The plaintiffs’

cannot (or should not) be a ‘hardship.’”

zoning board decisions to the superior court, requires such appeals to “specify

was contrary to

sought to build. This motion satisfied the spirit and letter of RSA 677:3.

As discussed above, the trial court dismissed the plaintiffs’ appeal

fully understood and discussed; and that the buildings on a particular property

that it did not comply with RSA p. 4 677:4. RSA 677:4, which governs appeals of because the court dismissed the plaintiffs’ appeal on the alternative ground denied their constitutional rights to due process and equal protection of laws, The defendant contends that we must affirm the trial court, nonetheless, alternatives to the screened deck they sought to build was unreasonable, ZBA’s denial of their variance request on the ground that there were feasible when it found that there were feasible alternatives to the screened deck they on notice that the plaintiffs believed that the ZBA had misinterpreted Boccia Plaistow Board of Selectmen. If nothing else, the plaintiffs’ motion put the ZBA those set forth in the memorandum appended to the motion at issue in grounds upon which it was based. These grounds were at least as specific as conflict with RSA 674:33b; so that the ‘spirit’ of the ordinance can be more another memorandum by reference, the plaintiffs’ motion directly listed the issue in Plaistow Board of Selectmen identified grounds by incorporating memorandum, which listed three specific grounds for rehearing.” Boccia and was contrary to the ordinance. While the motion at

Here, the plaintiffs’ motion for reconsideration to the ZBA stated that the

“incorporation of the planning board’s memorandum satisfied RSA 677:3.” Id.

Specifically, the memorandum had asserted that the variance: “may be in

requested rehearing, the plaintiff referenced and attached the planning board’s Id. “[U]nlike the plaintiffs in [DiPietro], who failed to specify any reasons for a based upon concerns outlined in an attached planning board memorandum. Plaistow Bd. of Selectmen, 146 N.H. at 264. The request stated that it was decision by the zoning board to grant a variance to the intervenor. Town of board of selectmen for the Town of Plaistow requested a rehearing of the appeal, and remand for further proceedings consistent with this opinion. p. 4 p. 5 677:4. Accordingly, we reverse the trial court’s dismissal of the plaintiffs’

ZBA decision] is alleged to be unreasonable.”

opposite conclusion, we hold that the plaintiffs’ appeal complies with RSA

issue did not suffice because the motion failed to “specify in any way how [the unreasonable or illegal.” Nonetheless, it ruled that incorporating the motion at 677:3. appeal of the specific grounds upon which the decision is alleged to be 5

plaintiffs’ appeal failed to satisfy RSA 677:4 only because it reached the

question to the ultimate issue of whether they met the requirements of RSA the ZBA “is an acceptable means of informing the trial court in an RSA 677:4 appeal for failure to comply with RSA 677:4 fairly comprises a subsidiary the question of whether the trial court erroneously dismissed the plaintiffs’

the ZBA satisfied RSA 677:3, and given that the trial court found that the

BRODERICK, C.J., and DALIANIS and GALWAY, JJ., concurred.

their motion for reconsideration, which they incorporated by reference, violated order to comply with 677:4, they had to meet the requirements of 677:3. Thus, the trial court gave for finding that the plaintiffs violated RSA 677:4 is that

In light of our holding that the plaintiffs’ motion for reconsideration to

See Sup. Ct. R. 16(b)(3).

whether they met the requirements of RSA 677:3 because, on these facts, in analysis of whether the plaintiffs complied with RSA 677:3. The only reason plaintiffs complied with RSA 677:4 is indistinguishable from the issue of Under the circumstances of this appeal, the issue of whether the

appeal,” the trial court’s analysis of this issue was wholly dependent upon its “alternative, separate and independent ground for dismissing the plaintiffs’ contends that the plaintiffs’ failure to comply with RSA 677:4 constitutes an These principles, however, do not apply here. Although the defendant

appeal, but is not briefed. In re Estate of King, 149 N.H. 226, 230 (2003). 605 (1989). We also deem an issue waived when it is raised in a notice of appeal, we deem the issue waived. See Wilder v. City of Keene, 131 N.H. 599, Ordinarily, when an appellant has failed to raise an issue in a notice of