2006-915, JUDY ATWATER & a. v. TOWN OF PLAINFIELD

No. 2006-915

Sullivan

from an order of the Superior Court (Houran Schuster, Buttrey & Wing, P.A. Dennis and Corrine Girouard, Diane MacDonald, and Ralph Demasi, appeal HICKS, J. The plaintiffs, Judy Atwater, Carolyn and John McNellis, ___________________________

Thomas R. Hanna jurisdiction. See RSA 677:15 (Supp. 2006). We reverse and remand. decision of the Town of Plainfield Planning Board (planning board) for lack of Clauson Atwood & Spaneas

intervenor, Townline Equipment Sales, Inc.

THE SUPREME COURT OF NEW HAMPSHIRE Krista E. Canty on the brief), for the defendant.

brief), for the plaintiffs.

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 to press. Errors may be reported by E-mail at the following address: 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 In Kelley II

failure to do so does not mean that its approval is not final. See deciding, that the planning board was required to hold such a hearing, its the intervenor’s compliance with a condition precedent. Assuming, without 2 is required to vest the trial court with jurisdiction. See has yet to render a final decision because it did not hold a hearing to address note that strict compliance with the thirty-day filing deadline of RSA 677:15, I, At the outset, we reject the plaintiffs’ contention that the planning board Turning to whether the trial court, upon this record, had jurisdiction, we N.H. 279 (1966) (Kelley I), the trial court granted the plaintiff’s motion to join as for having been brought against the wrong party, see Kelley v. Hopkinton, 107

, after we upheld the dismissal of the plaintiff’s zoning appeal

Hopkinton Village Precinct, 108 N.H. 206, 208 (1967) (Kelley II). adjustment (ZBA) does not divest the trial court of its jurisdiction. See Kelley v. defective or untimely service of a timely filed appeal from a zoning board of Town of Derry, 154 N.H. 610, 613 (2006). We have also held, however, that

premature, trial court could treat it as having been taken from final approval). the town was filed within thirty days of the planning board’s final approval. final approval. See jurisdiction, even if it named the wrong party; and (3) the motion to substitute id. at 328 (although appeal from conditional approval was plaintiffs required, under the circumstances, to file a separate appeal from the within thirty days of the conditional approval, vested the trial court with final decision has yet been rendered by the planning board; (2) the appeal, filed failed to hold compliance hearing, site plan approval was final). Nor were the On appeal, the plaintiffs argue that the trial court erred because: (1) no Town of Merrimack, 125 N.H. 321, 328-29 (1984) (although planning board

defendant within thirty days of the conditional approval, see moved to dismiss upon the basis that because it had not been named as a the intervenor in the caption. After the trial court allowed the motion, the town Plainfield (town) as the defendant, asserting that they had incorrectly named On September 12, 2006, the plaintiffs moved to substitute the Town of

trial court lacked jurisdiction. The trial court granted the town’s motion.

granting the plaintiffs’ request for certiorari review. See RSA 677:15, II. trial court issued an order of notice directing the intervenor to appear, and of the petition, and appended to it a copy of the planning board’s decision. The sole defendant in the caption. They identified the planning board in the body pursuant to RSA 677:15 to review the decision, naming the intervenor as the August 23, 2006. On September 5, 2006, the plaintiffs filed a verified petition the intervenor, Townline Equipment Sales, Inc., and rendered final approval on August 7, 2006, to conditionally approve an application for site plan review of The record reveals the following facts. The planning board voted on p. 3 Nor is the town correct that because we observed in Kelley I 3

id., we noted that “the wrong party was sued,” Kelley I, 107 N.H. at 281. the plaintiff identified the ZBA for the precinct in the body of her petition, see No. 5482 (N.H. Jan. 6, 1966) (Reserved Case) (emphasis added). Thus, while the proper party,] was not named as a party in said appeal.” Kelley I, Docket the Town of Hopkinton[, the wrong party,] and the Hopkinton Village Precinct[, We disagree with the town and intervenor that Lewis v. Hines contrary, the record in Kelley I shows that “[t]he appeal was brought against Like the statutory scheme in Kelley II brought suit against the proper party, but simply failed to serve it. To the “was named in the appeal,” Kelley I, 107 N.H. at 279, the plaintiff in fact timely

Kelley II, 108 N.H. at 207 (quotation omitted). the “continuance of the original suit” first brought in the administrative forum. after the statute of limitations has expired, an administrative appeal is simply argument in Kelley II. Unlike the addition of a defendant to an original lawsuit (1923), and its progeny control, for the same reason we rejected the identical

the appeal period, see id. at 208. II, 108 N.H. at 207, nor requires that notice of the appeal be provided within requirement of notice to any party in advance of the filing of the appeal,” Kelley Planning Board, 120 N.H. 481, 485-86 (1980). The statute neither “imposes [a] board” requiring the board to provide its record. RSA 677:15, II; see Price v. warranted, the court may issue a “certiorari order directed to the planning petition, conclude that further review of the planning board’s decision is board’s vote. RSA 677:15, I. Should the trial court, upon review of the such decision is illegal or unreasonable . . . . within 30 days” of the planning subdivision may present to the superior court a petition . . . setting forth that persons aggrieved by any decision of the planning board concerning a plat or

N.H. at 207-08. wrong party did not divest the trial court of its jurisdiction. See Kelley II, 108 petition, we held that the mere fact that the order of notice was directed at the Because the statute required the petitioner to do no more than timely file the court.” RSA 31:80 (1955) (repealed 1983; current version at RSA 677:8 (1996)). notice requiring a certified copy of the record appealed from to be filed with the 677:4 (Supp. 2006)). Once filed, “the clerk of court [was to] issue an order of such rehearing.” RSA 31:77 (1955) (repealed 1983; current version at RSA or, if the application is granted, then within thirty days after the decision on ZBA be filed “[w]ithin thirty days after the application for a rehearing is denied,

time for appeal against [it] ha[d] long since expired.” Id. (quotation omitted). see Kelley II, 108 N.H. at 206. The defendant moved to dismiss, arguing “the a defendant the party that the plaintiff should have sued in the first instance, p. 4 4

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

issue in Kelley II Reversed and remanded

The record in this case presents precisely the circumstances that were at reverse and remand for further proceedings consistent with this opinion. “decision of the planning board.” See Sklar Realty, 125 N.H. at 328. We approval, we need not address whether the conditional approval constituted a See Kelley II, 108 N.H. at 208. Because the planning board has rendered final planning board’s vote on the intervenor’s application established jurisdiction. we conclude that the plaintiffs’ filing of the appeal within thirty days of the differences between the statutory schemes at issue in Kelley II and in this case, the town after the appeal period expired. Inasmuch as there are no material petition, but identified the incorrect party as the defendant, and moved to join

. The plaintiffs named the planning board in the body of their