2009-199, Judy Atwater & a. v. Town of Plainfield

No. 2009-199

Sullivan

Clauson Atwood & Spaneas

Thomas R. Hanna

Schuster, Buttrey & Wing, P.A. Plainfield Zoning Board of Adjustment (ZBA) for lack of jurisdiction. We affirm.

Townline Equipment Sales, Inc.

brief and orally), for the respondent, Town of Plainfield.

and K. William Clauson THE SUPREME COURT OF NEW HAMPSHIRE orally), for the petitioners.

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 reconsideration. p. 2 begin to run until August 23, 2006. The ZBA denied the request for made before the fifteen-day deadline; and (2) the fifteen-day period did not The petitioners moved for reconsideration, arguing that: (1) their appeal was

therefore declines to take any action on this matter. zoning board is without jurisdiction to hear the appeal and August 9, 2006, more than fifteen days elapsed and therefore the Planning Board action on which the appeal is based occurred on

Since the appeal was received on September 6, 2006 and the

which is the subject of the appeal. appealed to the zoning board within fifteen days of the action that appeals of matters like those subject to RSA 676:5 must be issues related to the superior court petition in Atwater v. Town of Plainfield board.” Section 5.5 of the Plainfield Zoning Ordinance provides Issue Under RSA 676:5 (III)” with the ZBA. We previously resolved procedural be made within a reasonable time “as provided by the rules of the September 6, they filed a “Petition to Appeal Planning Board Decision of Zoning Under the terms of that statute, appeals to the zoning board must pursuant to RSA 677:15 to review the planning board’s decision, and on Planning Board Decision of Zoning Issue under RSA 676:5 (III).” and the ZBA. On September 5, they filed a verified petition in superior court The Board of Adjustment is in receipt of your “Petition to Appeal The petitioners challenged the site plan approval in both superior court it was filed late. In a letter to the petitioners’ counsel, the ZBA stated: On September 25, 2006, the ZBA denied the appeal on the grounds that

was timely filed. 156 N.H. 265 (2007). At issue in this appeal is whether the appeal to the ZBA

planning board gave final approval to the application. submitted revised site plans addressing the conditions of approval, the “subsequent conditions.” On August 23, 2006, after Townline’s engineers Facility,” subject to a specific “precedent condition” and four specific conditionally approved the site plan review for the new Townline Equipment board’s decision to Townline. The decision stated that the planning board “has as the official zoning administrator, sent a formal written notice of the planning Inc. (Townline). On August 9, 2006, the town administrator, who also serves an application for site plan review of the intervenor, Townline Equipment Sales, the Plainfield Planning Board (planning board) voted to conditionally approve The record reveals the following facts. At a hearing on August 7, 2006,

p. 3 appeal period set forth in section 5.5 of the ordinance does not apply, and the provide for a thirty-day deadline for an RSA 676:5 appeal; (3) the fifteen-day August 9, their appeal was timely filed because the rules of the zoning board application for site plan review; (2) even if the appeal period began to run on 23, 2006, the date of the planning board’s final approval of Townline’s dismissed their appeal because: (1) the appeal period began to run on August On appeal, the petitioners argue that the trial court erred when it

fifteen days of August 9, their appeal was untimely. This appeal followed. Therefore, because the petitioners did not file an appeal with the ZBA within with regard to the zoning issue was ripe for appeal on August 9, 2006. before the ZBA. The trial court also ruled that the planning board’s decision argument because they did not raise them in their motion for reconsideration as fifteen days, they filed within a “reasonable time,” and the estoppel argument that because the rules of the board do not define “reasonable time” The superior court ruled that the petitioners failed to preserve both the

administrative decision being appealed. ZBA must be filed within thirty days of the date of the signing of the Rules of Procedure” expressly provides that RSA chapter 676 appeals to the article 7.1 of the “Zoning Board of Adjustment, Plainfield, New Hampshire, had been unaware of the existence of these rules. The petitioners argued that that the Plainfield ZBA did have its own “Rules of Procedure.” The petitioners stated, among other things, that the Town had recently revealed in a pleading summary memorandum opposing the motions to dismiss. The petitioners Shortly after filing their supplemental objection, the petitioners filed a

2006, when the precedent condition for final approval had been met. objection, arguing that the appeal period did not begin to run until August 23, it were filed within thirty days. The petitioners later supplemented their and zoning administrator had advised them that their appeal would be timely if anything other than a thirty-day appeal period because the town administrator time.” They also argued that the Town should be estopped from claiming applies; and, therefore, they had filed their ZBA appeal within a “reasonable regarding this appeal period, the reasonable time standard of RSA 676:5, I, day deadline for an RSA 676:5, III appeal; that because section 5.5 is silent 5.5 of the Plainfield Zoning Ordinance (ordinance) does not provide for a fifteentimely appeal with the ZBA. The petitioners objected. They argued that section failed to exhaust their administrative remedies because they had not filed a the case for lack of subject matter jurisdiction, arguing that the petitioners had intervene. The Town of Plainfield (Town) and Townline each moved to dismiss The petitioners appealed to superior court. Townline was allowed to review the superior court’s ruling on that issue de p. 4 The interpretation and application of a statute is a question of law, and we ordinance becomes appealable presents an issue of statutory construction. The question of when a planning board decision interpreting a zoning

site plan. We disagree. issue is not appealable until a planning board renders its final approval of the was not a final appealable decision. According to the petitioners, a zoning approve the application for site plan review contained a precedent condition, it argue that because the planning board’s August 9, 2006 vote to conditionally 2006, and not, as the trial court found, on August 9, 2006. The petitioners it dismissed their appeal because the appeal period began to run on August 23, We first address the petitioners’ argument that the trial court erred when 4

phrases in isolation . . . but within the context of the statute as a whole,” in 542 (2009) (quotation omitted). However, “[w]e do not consider words and words used.” Appeal of Garrison Place Real Estate Inv. Trust, 159 N.H. 539, statute and where possible, we ascribe the plain and ordinary meanings to When construing a statute, “[w]e first examine the language found in the Town of Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 713 (2008).

erroneous. Mt. Valley Mall Assocs. v. Municipality of Conway

sufficiently establish a basis upon which relief may be granted.” Provencher v. determine whether the allegations contained in the plaintiff’s pleadings “Generally, in ruling upon a motion to dismiss, the trial court must

647 (2000).

case unless its decision is not supported by the evidence or is legally remedies is one such defense. We will uphold a trial court’s ruling in such a hear the claim due to the plaintiff’s failure to exhaust its administrative that a claim should be dismissed because the trial court lacks jurisdiction to demonstrated his right to claim relief.” Id. (quotation omitted). An assertion determine, based on the facts, whether the plaintiff has sufficiently trial court must look beyond the plaintiff’s unsubstantiated allegations and sufficiency of the plaintiff’s legal claim but, instead, raises certain defenses, the Id. at 853. However, when “the motion to dismiss does not challenge the plaintiff as true and view those facts in the light most favorable to the plaintiff. determination, the court would normally accept all facts pleaded by the Buzzell-Plourde Assoc., 142 N.H. 848, 852-53 (1998). In making this

ZBA. petitioners failed to raise them in their motion for reconsideration before the argue that we should decline to address the remaining arguments because the and Townline contend that the appeal period began on August 9. They also should be estopped from asserting the untimeliness of the appeal. The Town nature of the claim. See p. 5 avenues of appeal from a decision of the planning board, depending upon the Read together, RSA 677:15, I, and RSA 676:5, III establish two separate

provided by the rules of the board . . . .” person aggrieved . . . . Such appeal shall be taken within a reasonable time, as concerning any matter within the board’s powers . . . may be taken by any RSA 676:5, I (2008) states that “[a]ppeals to the board of adjustment

section . . . . decision may be appealed to the board of adjustment under this

if it had been made by the administrative officer, then such ordinance, which would be appealable to the board of adjustment

construction, interpretation, or application of the zoning

based upon the terms of the zoning ordinance, or upon any

planning board makes any decision or determination which is

If, in the exercise of subdivision or site plan review, the

adjustment. It provides, in pertinent part: RSA 676:5, III (2008), in turn, sets forth procedures for appeals to a board of

676:5, III. decisions appealable to the board of adjustment pursuant to RSA application . . . . This paragraph shall not apply to planning board

date upon which the board voted to approve or disapprove the petition shall be presented to the court within 30 days after the which the same is claimed to be illegal or unreasonable. Such unreasonable in whole or in part and specifying the grounds upon a petition, duly verified, setting forth that such decision is illegal or concerning a plat or subdivision may present to the superior court

Any persons aggrieved by any decision of the planning board

appeal that decision to the zoning board of adjustment pursuant to RSA 676:5, interpretation, or application of the zoning ordinance,” a party must first upon the terms of the zoning ordinance, or upon any construction, RSA 677:15, I. However, when the planning board makes a decision “based party may appeal planning decisions directly to the superior court pursuant to part: related statutory provisions. RSA 677:15, I (Supp. 2009) provides, in pertinent Hoffman v. Town of Gilford, 147 N.H. 85, 88 (2001). A

To decide the question presented, we consider the language of two

(2003). statutory scheme.” Franklin Lodge of Elks v. Marcoux, 149 N.H. 581, 585 language in light of the policy or purpose sought to be advanced by the order to “better discern the legislature’s intent and to interpret statutory would better apply judicial or administrative resources. Cf p. 6 board has voted to approve or disapprove the application to bring the appeal This is not a case in which requiring a party to wait until a planning Hoffman decisions involving the interpretation or application of a zoning ordinance. court, they also provide for an initial layer of review at the local level for 6 planning issues associated with a plat or subdivision directly to the superior zoning and planning issues. While the statutes allow a party to appeal resources). To the contrary, as the Town and Townline point out, planning separate appeal processes when a planning board decision is based upon both requests for interlocutory appeals in civil cases better applies judicial As we have noted, RSA 677:15, I, and RSA 676:5, III together create two Conway, 118 N.H. 883, 884 (1978) (policy of looking less favorably upon

fundamental as whether the proposed use is allowed by the zoning ordinance.’” before a party can appeal to the ZBA on a zoning issue ‘including something as little sense to require that the planning board’s approval of a site plan be final application review process. We agree with the superior court that “it makes any alleged errors made by the planning board as early as possible in the ZBA when such a decision is made. This will allow a zoning board to correct planning board decision about a zoning ordinance is ripe and appealable to the statutory scheme is best served by interpreting RSA 676:5, III to mean that a believe that the overall policy and purpose sought to be advanced by this review “to ensure uniform application of local zoning laws.” Id. at 88. We scheme to aid in our determination. See, 147 N.H. at 88. The legislature has provided this initial layer of to the overall policy and purpose sought to be advanced by the statutory the appeal period begins to run. Absent direction from the language, we look reasonable time, as provided by the rules of the board,” but is silent as to when 676:5. RSA 676:5, I, provides that such appeals “shall be taken within a the procedures set forth for appeals to the board of adjustment under RSA that decision must be appealed to the zoning board of adjustment pursuant to a planning board makes a decision applying or interpreting a zoning ordinance, 676:5, III. The plain language of RSA 676:5, III, in turn, makes clear that when enforcement). specifically exempts from these appeal requirements appeals pursuant to RSA time limit, court looked to statutory goals to determine appropriate mode of thirty days of that approval or disapproval. However, RSA 677:15, I, 138 N.H. 548, 551 (1994) (where statute silent as to remedy for violation of or disapprove the application, and that such appeals are to be taken within Smith v. N.H. Bd. of Psychologists, are ripe for appeal to the superior court when the p. 6 board has voted to approve The plain language of RSA 677:15, I, makes clear that planning issues

be appealed to the superior court pursuant to RSA 677:4 (Supp. 2009). III. Only after the board of adjustment has rendered a decision may the issue planning board decisions to the superior court under RSA 677:15, see p. 7 cases the petitioners cite in support of this proposition involve direct appeals of the planning board’ from which an aggrieved party may appeal.” However, the precedent has been satisfied that there is a “final approval that is a ‘decision of appeal in this case.” According to the petitioners, it is only after the condition “precedent condition” to its site plan approval is “critical to the timing of an The petitioners argue that the planning board’s imposition of a

the site plan in a letter dated August 9. While the planning board imposed a August 7. The planning board then informed Townline that it had approved August 9. The board voted to approve Townline’s site plan at a hearing on without deciding, as the trial court did, that the date of the decision was run. disapprove the application as the date upon which the appeal period begins to approve the application for site plan review was made on August 7, we assume 677:15, does not identify the date of the planning board vote to approve or Because none of the parties contends that the decision to conditionally determinations made “in the exercise of . . . site plan review,” and, unlike RSA zoning issues on appeal. Indeed, RSA 676:5, III speaks of appealing 7 imposed on a site plan application prior to the zoning board considering the involved in a site plan review, or that the applicant satisfy the conditions that the planning board first complete its consideration of the planning issues Nothing in the plain language of RSA 677:15, I, or RSA 676:5, III requires

board’s interpretation or application of a zoning ordinance.” the site plan before they bring an appeal to the ZBA challenging the planning these cases or in RSA 676:5, III, that the parties must wait for final approval of 677:15, we agree with the superior court that “there is no indication either in planning board that may be appealed to the superior court pursuant to RSA While these cases hold that only final approval constitutes a decision of the grounds by Winslow v. Holderness Planning Board, 125 N.H. 262, 269 (1984). Grantham Planning Board, 120 N.H. 388 (1980), overruled in part on other 36:34, see Sklar Realty v. Town of Merrimack, 125 N.H. 321 (1984); Totty v. Portfolio Group v. Town of Derry, 154 N.H. 610 (2006), or its predecessor, RSA

review process. of the zoning ordinance is accurate as early as possible in the application resolve the question of whether a planning board’s interpretation or application seeking site plan approval. As a practical matter, it makes far more sense to would be inefficient, and would impose significant hardship on applicants wait until a final vote of the board before challenging zoning determinations often based upon these zoning determinations. Allowing or requiring parties to application review process, and subsequent decisions by a planning board are determinations are often made by a planning board at the very beginning of the

board reviews may involve months of reviews and meetings. Zoning appeal.” Blagbrough Family Realty Trust v. Town of Wilton p. 8 that the court may have the benefit of the board’s judgment in hearing the have the first opportunity to pass upon any alleged errors in its decisions so “The statutory scheme is based upon the principle that the local board should

specify additional grounds. unless the court for good cause shown shall allow the appellant to shall be urged, relied on, or given any consideration by a court shall have been made, no ground not set forth in the application made application for rehearing . . . and, when such application

adjustment . . . shall be taken unless the appellant shall have No appeal from any order or decision of the zoning board of

court’s ruling is amply supported by the record. it in the motion for reconsideration they filed with the ZBA. The superior RSA 677:3, I (2008) provides, in pertinent part: court declined to address this argument because the petitioners failed to raise fifteen days to appeal the planning board’s decision to the ZBA. The superior court, that the ZBA erred when it concluded that the petitioners had only The petitioners argued at the superior court level, and on appeal to this

the court, for good cause shown, orders otherwise. Id. at 239. is barred from raising those grounds in an appeal to the superior court unless motion for rehearing alleged errors with respect to the ZBA’s decision, the party 238-39 (2006) (quotation omitted). Thus, if a party fails to set forth in its

in their motion for reconsideration before the ZBA. We agree. petitioners failed to preserve these arguments because they did not raise them superior court ruled, and the Town and Townline argue on appeal, that the should be estopped from asserting the untimeliness of the appeal. The “reasonable time”; and (3) even if their appeal period is fifteen days, the Town ordinance does not apply, and the petitioners filed their appeal within a board apply, the fifteen-day appeal period set forth in section 5.5 of the deadline for an RSA 676:5 appeal; (2) regardless of whether the rules of the petitioners argue: (1) that the rules of the zoning board provide for a thirty-day because they did not file within fifteen days of the August 9 decision. The We next consider whether the petitioners failed to timely file their appeal

issue on August 9.” the plan until August 23, it had already made a decision regarding the zoning found, “Although the planning board may not have rendered final approval of not implicate any issue appealable to the ZBA. Therefore, as the superior court condition precedent on final approval of the overall site plan, the condition did that it was not raised at the ZBA, we find this argument unpersuasive. p. 9 “good cause” to allow them to raise the issue in superior court despite the fact an appeal was due.” To the extent that the petitioners argue that this provides their appeal to the superior court, despite their best efforts to determine when not “aware of the existence of the ZBA’s Rules of Procedure . . . until well after arguing that the length of the appeal period is thirty days because they were On appeal, the petitioners argue that they should not be barred from

ZBA. petitioners had failed to raise it in their motion for reconsideration with the is sufficient, but ruled that it would not consider the issue because the and that an appeal brought within thirty days of the planning board’s decision applicable rules of the board do not define “reasonable time” as fifteen days, acknowledged that there “may be merit to [the petitioners’] argument” that the days, not fifteen days. In ruling on the motions to dismiss, the superior court rules of the board actually define the appeal period in such cases to be thirty within a reasonable time, as provided by the rules of the board,” and that the I, makes clear that appeals taken pursuant to the statute “shall be taken motions to dismiss. The petitioners argued, for the first time, that RSA 676:5, Thereafter, the petitioners filed a summary memorandum opposing the

which were available at the Town office. objection, the Town stated that the ZBA did, in fact, have rules of procedure, with the ZBA within a ‘reasonable time.’” In its response to the petitioners’ period, then the Court must determine whether the plaintiffs filed their appeal not apply and the ‘rules of the board’ are otherwise silent as to a specific time that, “[s]ince the 15 day appeal period set forth in § 5.5 of the Ordinance does planning board’s approval of an application for site plan review. They asserted section 5.5 of the ordinance did not apply to an RSA 676:5, III appeal of the petitioners objected. In their objection, the petitioners initially argued that court. The Town and Townline filed motions to dismiss, to which the denial of their motion for reconsideration, the petitioners appealed to superior conclusion that the length of the appeal period was fifteen days. Following the until August 23. The petitioners did not, however, challenge the ZBA’s was made before the 15-day deadline, and that the appeal period did not begin appeal. The petitioners moved for reconsideration, arguing that their appeal filed September 6, the ZBA concluded that it lacked jurisdiction to hear the the planning board’s decision had been made on August 9, and the appeal was within fifteen days of the action which is the subject of the appeal.” Because matters like those subject to RSA 676:5 must be appealed to the zoning board according to the ZBA, section 5.5 of the ordinance “provides that appeals of “within a reasonable time, as provided by the rules of the board,” and, hear the petitioners’ appeal because RSA 676:5, I, requires appeals to be filed The record reflects that the ZBA concluded that it lacked jurisdiction to p. 10 Affirmed

petitioners’ remaining arguments, we affirm. plan review, and that the superior court did not err by declining to address the to run with the planning board’s conditional approval of the application for site Because we conclude that the petitioners’ RSA 676:5 appeal period began

trial court did not err by declining to consider it. objection to the Town’s and Townline’s motions to dismiss. Accordingly, the that the issue was raised for the first time at the trial court, in the petitioners’ the motion for reconsideration they filed with the ZBA. The record indicates declined to address this argument because the petitioners failed to raise it in reasonably relied upon that date when filing their appeal. The trial court August 7, 2006, to appeal the planning board’s decision, and the petitioners and zoning administrator informed Atwater that she had thirty days from other than a thirty-day appeal period. According to the petitioners, the town their appeal because the Town should be estopped from claiming anything Finally, the petitioners argue that the superior court erred in dismissing

DALIANIS, DUGGAN, HICKS and CONBOY, JJ., concurred.

consider this argument. fifteen days. Therefore, the superior court did not err when it declined to not challenge the ZBA’s conclusion that the length of the appeal period was Again, the record reflects that the petitioners’ motion for reconsideration did not apply, and the petitioners filed their appeal within a “reasonable time.” fifteen-day appeal period set forth in section 5.5 of the zoning ordinance does their appeal because, regardless of whether the rules of the ZBA apply, the The petitioners also argue that the superior court erred in dismissing

went to the Town Clerk’s Office and asked to see the rules of procedure. copy of the ZBA rules of procedure from the Town, or that they at any point representation. Nor have the petitioners asserted that they ever requested a the entire appeal period. The petitioners have not challenged either available for public inspection at the Plainfield Town Clerk’s Office throughout office. Townline has represented on appeal that the rules of procedure were court level that the ZBA has rules that are available for inspection at the Town length of the appeal period. The Town represented in its pleadings at the trial RSA 676:5, I, makes clear that the ZBA’s rules of procedure dictate the