2011-183, Nicolas Bosonetto v. Town of Richmond

The petitioner, Nicolas Bosonetto, appeals a decision of the

for the respondent. ___________________________ Tower & Crocker, P.A. on the brief and orally), THE SUPREME COURT OF NEW HAMPSHIRE

and orally), for the petitioner.

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

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

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

p. 2 construction of the 3-bedroom house would increase the difficulty in 1. The [ZBA] decided that the issuance of the building permit and the

Decision,” which provided the following reasons for the ZBA’s decision:

On August 17, 2009, the ZBA convened to review a draft of a “Notice of

Mr. Bosonetto was present at this meeting.

upon an oral motion, “den[ied] the application based on the criteria of 674:41.”

could be granted pursuant to the factors contained in RSA 674:41, II, and, “footprint” and at a different location. The ZBA discussed whether the request the petitioner to replace the existing mobile home with a building on a different

them. Several of the members noted, however, that that right does not permit

right to use the existing structures because building permits were issued for

At its deliberation, the ZBA determined that the petitioner has a vested

ZBA deliberated on the matter.

the ZBA visited the site of the proposed building. On August 10, 2009, the

July 28, 2009, the ZBA conducted a public hearing, and, on August 5, 2009, On June 25, 2009, the petitioner appealed the decision to the ZBA. On

recommended that the petitioner pursue an appeal to the ZBA.

on the municipality.” RSA 674:41, II (2008). In its denial, the BOS permit will not cause hardship to future purchasers or undue financial impact upon which it is based, and if the erection of the building or issuance of the

distort the official map or increase the difficulty of carrying out the master plan

. . . if the issuance of the permit or erection of the building would not tend to

authorizes the ZBA to “make any reasonable exception and . . . issue a permit 674:41, I(d)(1). The statute also sets forth an appeal process to the ZBA, and of building permits for the erection of buildings on said private road.” RSA

other things, “the local governing body . . . has voted to authorize the issuance

roads, the statute explicitly provides that permits may be issued only if, among building is proposed to be placed” meets certain criteria. With regard to private erection of a building unless the street giving access to the lot upon which such

RSA 674:41, I (2008) prohibits the issuance of a building permit “for the

Richmond] does not have provisions for building permits on private roads.” “based on the fact that the property is on a private road and the Town [of location on the property. On June 8, 2009, the BOS denied the application

one of the mobile homes with a new three-bedroom residence at a different

to the Board of Selectman of the Town (BOS) requesting permission to replace On May 18, 2009, the petitioner submitted a building permit application

permits granted in 1980. There are three mobile homes on the property, all placed pursuant to building timeframe specified in [RSA 677:2].” p. 3 rehearing request because the motion “was not filed within the 30 day specifically refer to the statute, and, by oral motion, the ZBA voted to deny the

the ZBA instructions. The ZBA, however, noted that the instructions

disapprove the application.” The petitioner argued that he had been misled by with the date following the date upon which the [ZBA] voted to approve or that the thirty-day time period “shall be counted in calendar days beginning

rehearing be filed within “30 days after any order or decision of the [ZBA]” and

noted that RSA 677:2 (2008) (amended 2009) requires that a motion for ZBA. At a meeting on October 8, 2009, the ZBA addressed the motion. It was approved by the ZBA – the petitioner filed a motion for rehearing with the

the application, but less than thirty days after the written notice of decision

On September 14, 2009 – more than thirty days after the oral denial of

Statutes . . . covering planning and zoning.” become familiar with the zoning ordinance, and also with the New Hampshire

in bold: “The [ZBA] strongly recommends that, before making any appeal, you

for public inspection.” The instructions also contained the following language be made within 30 days after the decision is filed and first becomes available the ZBA for a rehearing. The instructions then stated that “[t]he motion must

letterhead, explained that to appeal the decision, the petitioner must first ask

instructions on how to appeal the decision. Those instructions, on ZBA On August 24, 2009, a Town clerk provided Mr. Bosonetto with

after the meeting, on August 18, 2009.

subsidiary matter. The notice was placed on file for public inspection the day

additional deliberation and without a new vote on the application or any ZBA ultimately voted to approve the draft notice of decision without any and that each member was asked what his or her view was on the issue. The 3

that the ZBA had discussed the issue at length at the August 10, 2009 meeting

on anything to do with vested rights.” Another member, however, explained (Emphasis omitted.) One ZBA member stated that he “did not feel he had voted

mobile home.

“footprint” larger and at a different location than that of the existing replace the existing mobile home with a 3-bedroom house on a 4. The [ZBA] decided that the applicant does not have a vested right to

undue financial impact on the municipality. 3. The [ZBA] decided that the granting of the building permit could cause

cause hardship to future purchasers. 2. The [ZBA] decided that the construction of the 3-bedroom house would instance. As to that question, the statute is clear: a motion for rehearing may

p. 4 rehearing. It does not address when a motion must be filed in the first

permits a party, in certain circumstances, to amend a timely-filed motion for the trial court, we conclude that the statute’s amendment provision merely that “August 17, 2009 is the triggering date for purposes of RSA 677:2.” Like

matter jurisdiction.” Cardinal Dev. Corp. v. Town of Winchester Zoning Bd. of

On appeal, the petitioner points to the amendment provision and argues

petitioner’s statutory appeal for lack of subject matter jurisdiction. decision was August 10, 2009. The trial court accordingly dismissed the

and “failure to timely move for a rehearing divests the superior court of subject

petitioner’s motion for rehearing was not timely” because the date of the

rehearing is a precondition to appealing a ZBA decision to the superior court,”

minutes or written decision in a prompt manner.” It thus ruled that “the thirty-day period begins to run in the event that the ZBA fails to file its meeting opportunity to amend his [motion]” and “does not change the date when the

provided in RSA 677:2.” This is a strict requirement: “[A] timely motion for taken unless the appellant shall have made application for rehearing as 677:3 (2008), “[n]o appeal from any order or decision of the [ZBA] . . . shall be

however, that this provision “merely provides the applicant with the

approve or disapprove the application . . . .” RSA 677:2. Pursuant to RSA

which the written decision was actually filed.” The trial court concluded,

beginning with the date following the date upon which the board voted to rehearing.” “This 30-day time period shall be counted in calendar days of the [ZBA] . . . any party to the action or proceedings . . . may apply for a

shall have the right to amend the motion . . . within 30 days after the date on town vote pursuant to RSA 674:3, II, the person applying for the rehearing taken, including the written decision, were not filed within 144 hours after the

untimely. Pursuant to RSA 677:2, “[w]ithin 30 days after any order or decision

moving party shows that the minutes of the meeting at which such vote was

appeal, which was based upon its ruling that his motion for rehearing was The petitioner first challenges the trial court’s dismissal of his statutory

decision. The court noted that RSA 677:2 provides the following: “[I]f the August 17, 2009, the day the ZBA voted to approve its written notice of timely filed because the thirty-day time period did not begin to run until The petitioner argued to the trial court that his motion for rehearing was

error. We address each issue in turn.

Adjustment, 157 N.H. 710, 712 (2008).

denied relief on all grounds. On appeal, the petitioner raises various points of mandamus against the BOS, and a writ of certiorari. The court ultimately requested a declaratory judgment against the BOS and the ZBA, a writ of

addition to asserting a statutory appeal of the ZBA’s decision, the petitioner The petitioner then appealed the ZBA decision to the superior court. In statutes. Thus, the evidence did not compel a finding that the Town made the

p. 5 reasonably relied upon the representation to his detriment. Cardinal Dev. “strongly” recommend that the reader “become familiar” with the relevant the intention of inducing the petitioner to rely upon it; and (4) the petitioner was unaware of the truth of the matter; (3) the representation was made with

effect, warn the reader against solely relying upon them: The instructions specifically created for the petitioner. Most importantly, the instructions, in made by the Town and the Town had knowledge of that fact; (2) the petitioner rehearing. There is no evidence indicating that the instructions were

demonstrate that: (1) a representation or concealment of material fact was the petitioner when the petitioner spoke with a Town clerk about requesting a

circumstances, to prevail on his estoppel claim, the petitioner must upon it.” The record supports this ruling. The instructions were provided to Assuming that the doctrine of equitable estoppel is applicable to these the misstatement of the law with the intention of inducing the petitioner to rely the Town is not equitably estopped from raising the timeliness issue. timeliness issue because the court “[could not] conclude that the Town made The trial court ruled that the Town was not estopped from raising the

The petitioner next argues that the trial court erred when it ruled that

following the date [of the vote].” RSA 677:2. the thirty-day time period be “counted in calendar days beginning with the date

correctly ruled that the petitioner’s motion for rehearing was untimely. Because the petitioner filed his motion on September 14, 2009, the trial court days after the ZBA’s vote “to approve or disapprove the application” and that

had to file his motion for rehearing within thirty days of August 11, 2009. contrary to the statutory requirements that the motion be made within thirty

motion on August 10, 2009. Accordingly, to meet the deadline, the petitioner to run the day after the ZBA disapproved the application by a vote on an oral filed and first becomes available for public inspection.” This statement is Thus, pursuant to the plain language of RSA 677:2, the thirty-day period began “[t]he motion [for rehearing] must be made within 30 days after the decision is The instructions provided by the ZBA were incorrect. They stated that

limited to a memorialization of a vote which provides reasoning for the decision.

evidence or is legally erroneous. Id. uphold a trial court’s estoppel decision unless it is not supported by the 715. The burden of proving estoppel is on the party asserting it. Id. We will Corp., 157 N.H. at 715-16. Existence of estoppel is a question of fact. Id. at

order or decision, and a “vote to approve or disapprove the application” is not RSA 677:2 (emphasis added). “Any order or decision” is not limited to a written date upon which the [ZBA] voted to approve or disapprove the application.”

period shall be counted in calendar days beginning with the date following the be filed “[w]ithin 30 days after any order or decision” and the “30-day time by a court, a party must exhaust its administrative remedies. See p. 6 As a general matter, before an administrative board’s decision may be reviewed

is available.” McNamara to judicial rather than administrative treatment and no other adequate remedy for rehearing – if the action addresses a zoning issue that is “peculiarly suited

The petitioner next challenges the court’s declaratory judgment rulings. promoting judicial efficiency. McNamara

superior court of subject matter jurisdiction.” Cardinal Dev. Corp. declaratory judgment action – even though he has failed to timely file a motion

the exercise of administrative expertise, preserving agency autonomy, and rehearing with the ZBA. properly dismissed the petitioner’s appeal for failure to timely file a motion for

Town of Pelham, 159 N.H. 567, 573 (2009); Blue Jay Realty Trust v. City of remedies. See, 157 N.H. at 74 (quotation omitted); accord Huard v.

to our prior holdings that “failure to timely move for rehearing divests the estoppel to avoid the application of a statute.” Appeal of Alexander This rule, however, is subject to exceptions. A petitioner may maintain a

N.H. at 70. The exhaustion rule is based on reasonable policies of encouraging Town was not equitably estopped from raising the timeliness issue and thus court. See, e.g., McNamara v. Hersh, 157 N.H. 72, 73-76 (2008); Ireland, 151 situation, the party will typically not be able to challenge the ZBA’s decision in

Ireland v. Town of Candia, 151 N.H. 69, 70 (2004). In such a

for rehearing before the ZBA constitutes a failure to exhaust its administrative Town of Gilford, 160 N.H. 43, 52 (2010). A party’s failure to timely file a motion

(2003). Accordingly, we conclude that the trial court properly ruled that the already exist.” Route 12 Books & Video v. Town of Troy, 149 N.H. 569, 575 the law does not favor its application against municipalities.” Hounsell v. N. 712. “[Subject matter] jurisdiction cannot be conferred where it does not

one of law. Finally, if we were to permit the superior court to apply estoppel Aside from this dispositive issue, several other factors militate against Company, 485 S.W.2d 548, 550-51 (Tenn. 1972). The misstatement here was So. 2d 1015, 1028 (Ala. 2007); Ryan v. Lumbermen’s Mutual Casualty estoppel. Inc. v. Park County, 935 P.2d 1131, 1138 (Mont. 1997); Boutwell v. State, 988 to misstatements of fact, not misstatements of law. See, e.g., Elk Park Ranch, address the issue, several courts have held that equitable estoppel applies only Conway Water Precinct, 154 N.H. 1, 6 (2006). Third, although we have yet to

here. Second, “[a]lthough municipal corporations may be subject to estoppel, (2012) (quotation omitted). That is precisely what the petitioner is attempting

the court’s ruling that the petitioner failed to satisfy this element of equitable misstatement to induce the petitioner to rely upon it. Accordingly, we uphold p. 7 Hampshire statute, RSA 674:19 (2008). Cohen v. Town of Henniker Hampshire Constitution, N.H. CONST., pt. I, arts. 2, 12, and by New

The right to continue a nonconforming use is recognized by the New

merely a continuation of his prior lawful nonconforming use. petitioner maintains that he has such a vested right because his proposal is vested right to construct the proposed house in the proposed location. The

wrong legal standard when they determined that the petitioner does not have a

The petitioner’s basic argument is that the ZBA and the BOS applied the

on what basis it would be proper to remand the matter to the [BOS].”

declined to rule on the merits of the petitioner’s claim because it was “unclear

a nonconforming use.” Loundsbury v. City of Keene 7

discussed the differences between the existing structure and the proposed timeliness requirement discussed above. With regard to the BOS, the court on the merits of the petitioner’s claim because the petitioner failed to meet the either the ZBA or the BOS. With regard to the ZBA, the court declined to rule

premises or property proportionally less adequate.” New London Land Use

future use, so that a town may not unreasonably require the discontinuance of

516-17. Indeed, in this case, the ZBA visited the property at issue and differences between the proposed use and the extant nonconforming use. Id. at expansion is “substantial” depends primarily on the factual similarities and In light of this, the petitioner asked the court to reverse and remand the case to Assoc. v. New London Zoning Board, 130 N.H. 510, 516 (1988). Whether an

“enlargement or expansion may not be substantial and may not render (1982). This right extends to the expansion of a nonconforming use, but

425, 427 (1991). “[A] past use of land may create vested rights to a similar

unconstitutionally and illegally applied RSA 674:41 to his use of his property. questions. McNamara

concern and thus should resolve such issues in the first instance. Huard

action when the petitioner has failed to properly file a motion for rehearing

The petitioner argued to the trial court that both the BOS and the ZBA “specialized administrative understanding plays little role” in answering legal

N.H. at 573. validity of a zoning ordinance or the authority of an agency to act. See, 159 uniquely qualified to answer questions of fact related to matters of local 76. The rationale for this is straightforward – local zoning authorities are

administrative remedies and, therefore, cannot pursue a declaratory judgment issue involves substantial questions of fact, a petitioner typically must exhaust

74. Requiring exhaustion in such a context is unnecessary because Corp. v. Town of Wolfeboro, 159 N.H. 747, 752 (2010); McNamara, 157 N.H. at

when the issue raised is a pure question of law, such as the constitutionality or Franklin, 132 N.H. 502, 509 (1989). Judicial treatment is peculiarly suitable administrative board or tribunal has not been exhausted.” State Employees’ p. 8 mandamus will not be issued “where the remedy by appeal or error to another

mandamus voiding the BOS decision and remanding the matter. A writ of

The petitioner next argues that the court erred in denying him a writ of

court’s ruling on the constitutionality of RSA 674:41.

based upon a hypothetical set of facts. Baer v. N.H. Dep’t of Educ. judgment. Accordingly, we decline to address the issue and vacate the trial It is a bedrock principle that a declaratory judgment action cannot be

premise not supported by the record and thus is not suitable for declaratory

because the Town acted in bad faith, see

petitioner’s constitutional challenge to the statute is based upon a hypothetical address the issue in the context of this declaratory judgment proceeding. petitioner has forfeited his ability to challenge this ruling. Therefore, the the existing mobile home.” (Emphasis omitted.) As discussed above, the

Finally, the petitioner argues that he is entitled to his attorney’s fees

Although the trial court addressed the issue and upheld the law, we decline to party’s rights to pre-existing structures and non-conforming uses of buildings.” bedroom house on a ‘footprint’ larger and at a different location than that of question is whether “compliance with RSA 674:41 . . . impinge[s] upon a 8

forfeited by failing to pursue it in a timely fashion.” mandamus because . . . he had an adequate avenue for relief, which he

“does not have a vested right to replace the existing mobile home with a 3applies to a lawful pre-existing use.” As the trial court put it, the germane record belies this presumption. The ZBA specifically ruled that the petitioner use is, in fact, a continuation of his prior lawful nonconforming use. The

agree with the trial court that “[the petitioner] is not entitled to the remedy of Ass’n v. Lang, 119 N.H. 637, 638 (1979) (quotation omitted). Accordingly, we

violates Part I, Articles 12 and 12-a of the New Hampshire Constitution as it The petitioner also requested a “declaratory judgment that RSA 674:41 lawful nonconforming uses. Thus, his argument presumes that his proposed

property,” Huard

727, 731 (2010). The petitioner challenges RSA 674:41 only as it applies to whether his challenge is to action by the ZBA or the BOS., 160 N.H.

primarily questions “with respect to the characteristics of [the petitioner’s] omitted.) Because resolution of the substantial expansion issue involves and at a different location than that of the existing mobile home.” (Emphasis

now raise the issue in a declaratory judgment proceeding, regardless of remedies before initiating court action. Because he failed to do so, he cannot treatment. Thus, the petitioner was required to exhaust his administrative

, 159 N.H. at 573, it is not “peculiarly suited” to judicial

on its factual finding that the proposed house would be on “a ‘footprint’ larger structure. Furthermore, the ZBA’s ruling on the issue was explicitly premised p. 9 Affirmed in part; and vacated

denying attorney’s fees.

public in any way.” The record supports both of these conclusions. We that such use of what are already overstretched judicial resources benefits the The court concluded that the “[p]etitioner cannot hope to persuade [the court]

avail himself timely of the administrative remedy granted to him by statute.”

developed and were necessitated only by the fact that “[the petitioner] failed to DALIANIS, C.J., and HICKS and LYNN, JJ., concurred. specifically noted that many of the petitioner’s claims were inadequately i n p a r t unsupported.” With regard to his public benefit claim, the trial court

court found that the petitioner’s bad faith claim was “entirely speculative and Rabbia v. Rocha, 162 N.H. 734, 740 (2011) (quotation omitted). Here, the trial fees, and will not overturn it absent an unsustainable exercise of discretion.” (2000). “We give substantial deference to a trial court’s decision on attorney’s benefit, see Asmussen v. Comm’r, N.H. Dep’t of Safety, 145 N.H. 578, 596 690-91 (1977), or, in the alternative, because the litigation conferred a public