2012-490, Town of Bartlett Board of Selectmen v. Town of Bartlett Zoning Board of Adjustment

Donahue, Tucker & Ciandella, PLLC, of Exeter (John J. Ratigan on the

Cooper Cargill Chant, P.A., of North Conway (Christopher T. Meier on the TOWN OF BARTLETT BOARD OF SELECTMEN

No. 2012-490 Carroll

Town of Bartlett Zoning Board of Adjustment filed no brief.

a sign erected by the intervenor, River Run Company, Inc. (River Run), is decision of the Town of Bartlett Zoning Board of Adjustment (ZBA) finding that (Selectboard), appeals an order of the Superior Court (Houran, J.) upholding a page is: http://www.courts.state.nh.us/supreme. DALIANIS, C.J. The petitioner, the Town of Bartlett Board of Selectmen 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 brief and orally), for the intervenor, River Run Company, Inc.

brief and orally), for the petitioner, Town of Bartlett Board of Selectmen.

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 lots under the same ownership.” According to the Selectboard, “[a]ny

p. 2 interpreted to mean more than a single lot of land, and cannot mean multiple

about the word ‘premises,’” and contended “that the term ‘premises’ cannot be noted that the “ZBA meeting minutes contain a fair amount of discussion that the sign was a directional sign was unlawful or unreasonable. It also

The Selectboard moved for rehearing, arguing that the ZBA’s decision

the ordinance prohibiting off-premise signs. patrons” under Article XVI, Section H.4, and was exempt from the provisions of

Ultimately, the ZBA found “that the sign served as a directional sign for

might “mean the total holdings of the landowner,” rather than individual lots. not define the word “premises.” The ZBA then discussed whether the word The ZBA held a public hearing at which it noted that the ordinance does

and/or protection of patrons.”

and/or required by State law or regulation or for the control, movement, safety oriented signs not directed to or readily visible from the public way exempts from the ordinance “[d]irectional, informational, warning, and/or

was “a directory sign” under Article XVI, Section H.4 of the ordinance, which

therefore not permitted.” River Run appealed to the ZBA, arguing that the sign on the property where the sign is, it is considered an off premise sign and reasoned that because the “sign advertises the registration office which is not

districts except as provided elsewhere in [the] Ordinance.” The Selectboard

pertains is located,” and Section D, which prohibits off-premise signs “in all premises other than on the premises where the activity to which the sign the ordinance, which prohibits the erection of an outdoor sign “on any

Selectboard denied River Run’s request pursuant to Article XVI, Section A-10 of

sign permit application, seeking approval of the additional sign. The

sign violated the ordinance. In response, River Run submitted an amended In June 2010, the Selectboard informed River Run that the additional

Mountain Village, separate from the lot on which the sign is located.

for Attitash Mountain Village. The office is located on a lot within Attitash registration office to which the sign refers is the office at which patrons register approved sign, reading “REGISTRATION .3 MILES BACK ON LEFT.” The

area. At some point, an additional, smaller sign was affixed underneath the

application, and the sign was erected at the westerly entrance to the resort Mountain Village.” In January 2010, the Selectboard approved River Run’s a permit to place a sign on Route 302, advertising, “The Suites at Attitash

resort in Bartlett. In September 2009, River Run applied to the Selectboard for

River Run maintains vacation ownership units at Attitash Mountain Village, a The following facts are drawn from the trial court’s order and the record.

affirm. permitted under the Town of Bartlett’s Zoning Ordinance (ordinance). We the local board should have the first opportunity to pass upon any alleged p. 3 additional grounds.” This “statutory scheme is based upon the principle that unless the court for good cause shown shall allow the appellant to specify

rehearing. See RSA 677:2 (Supp. 2012), :3, I (2008). It further contends that upholding the ZBA’s decision upon a ground not set forth in the motion for The Selectboard argues that the trial court exceeded its jurisdiction by

rehearing] shall be urged, relied on, or given any consideration by a court

Under RSA 677:3, I, “no ground not set forth in the [motion for

respect to this issue.

because it was not properly before the court on appeal. This appeal followed. the Selectboard’s argument that the court should refuse to address this issue that the sign was not an off-premise sign. In doing so, the trial court rejected

off-premise sign because River Run did not file a motion for rehearing with

cannot mean multiple lots under the same ownership.” The trial court ruled

that the trial court lacked jurisdiction to consider whether the sign was not an issues raised in a motion for rehearing under RSA 677:2. Thus, it contends court’s subject matter jurisdiction in a zoning matter is circumscribed by the

‘premises’ cannot be interpreted to mean more than a single lot of land, and River Run’s sign was not exempt as a directional sign, and “that the term Selectboard appealed to the superior court. The Selectboard again argued that

unlawful or unreasonable. Id.; RSA 677:6 (2008). We will uphold the superior

judgment in hearing the appeal.” Atwater v. Town of Plainfield, 160 N.H. 503, Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City errors in its decisions so that the court may have the benefit of the board’s court’s subject matter jurisdiction. The Selectboard argues that the trial failing to find that the sign is an “off-premise” sign not subject to exemption.

After the ZBA denied the Selectboard’s request for rehearing, the

the balance of probabilities, on the evidence before it, that the ZBA decision is

We begin by addressing the Selectboard’s challenge to the superior mean a unified vacation resort complex located on multiple tax lots; and (2) erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555. court’s decision unless the evidence does not support it or it is legally

not an off-premise sign and, thus, was permitted under the ordinance. set aside by the superior court absent errors of law unless it is persuaded by was either exempt as a directional sign under Article XVI, Section H.4, or was deemed prima facie lawful and reasonable, and the ZBA’s decision will not be of Somersworth, 162 N.H. 553, 555 (2011). Factual findings by the ZBA are

the trial court erred by: (1) construing the term “premises” in the ordinance to

Run objected, asserting that the ZBA’s decision was lawful because the sign interpretation that ‘premises’ means more than a single lot is in error.” River a question of law, which we review de novo.” Town of Barrington v. Townsend,

p. 4 misconstrued the word “premises.” “The interpretation of a zoning ordinance is We next address the Selectboard’s argument that the trial court

in fact, an off-premise sign.

institution.” Id. at 1789. subject matter jurisdiction to consider initially whether River Run’s sign was, Feins v. Town of Wilmot, 154 N.H. 715, 719 (2007) (quotation omitted). the terms in the ordinance prohibiting off-premise signs, the trial court had that, when reviewing the ZBA’s decision that River Run’s sign was exempt from

Black’s Law Dictionary defines “premises,” in relevant part, as “[a] house

the common and approved usage of” the word. Townsend, 164 N.H. at 246

land with the structures on it” or “the place of business of an enterprise or its construction as a whole, not by construing isolated words and phrases.” further defines “premises,” in pertinent part, as “a specified piece or tract of Webster’s Third New International Dictionary 1002 (unabridged ed. 2002). It first time before the superior court, it is mistaken. Accordingly, we conclude relevant part, as “an area appropriated to or used for a particular purpose.” 2009). Webster’s Third New International Dictionary defines “grounds,” in or building, along with its grounds.” Black’s Law Dictionary 1300 (9th ed.

(quotation omitted).

Because the ordinance in this case does not define “premises,” we will look “to

N.H. 600, 605 (2004). We determine the meaning of a zoning ordinance “from itself for further indications of legislative intent. Fox v. Town of Greenland, 151 Thus, insofar as the Selectboard maintains that the issue was raised for the ordinance is plain and unambiguous, we need not look beyond the ordinance 164 N.H. 241, 246 (2012) (quotation omitted). “When the language of an

itself raised the issue in its motion for rehearing when it contended “that the

also raised the issue in its objection to the Selectboard’s motion for rehearing. argument in support of the ZBA’s decision. Cf. Mack v. Board of Appeals, and cannot mean multiple lots under the same ownership.” River Run then term ‘premises’ cannot be interpreted to mean more than a single lot of land,

the ZBA’s conclusion that the sign was an off-premise sign, the Selectboard aware of no authority, and the Selectboard cites none, that River Run, which Ordinance Article XVI, Section H.4,” and that neither it nor River Run appealed 511-12 (2010) (quotation omitted; emphasis added). Nevertheless, we are rehearing was based exclusively on the ZBA’s interpretation of Zoning Moreover, although the Selectboard asserts that its “request for

board of appeals “because they were not aggrieved by it”). were not required to appeal town code enforcement officer’s interpretation to Town of Homer, 807 N.Y.S.2d 460, 463 (Sup. Ct. 2006) (finding that petitioners

rehearing in order to establish the trial court’s jurisdiction over its alternative prevailed before the ZBA, had a statutory obligation to file a motion for appears from their context that a different meaning was intended.” Feins, 154

p. 5 used in a zoning ordinance will be given their ordinary meaning unless it under the same ownership, or separate businesses on a single lot.” The “words to in the ordinance, “has been defined in practice to mean either a single lot

land.” In support of this interpretation, it contends that “premises,” as referred

sign . . . carries a message unrelated to its particular location.” Id.; see also activities conducted on the premises where the sign is located. . . . An offsite

explanation of the distinction between “onsite” and “offsite” signs in Ackerley Additionally, we fail to see how the First Circuit Court of Appeals’

explanation for “on-premise” signs and “off-premise” signs). Nothing in that conclusion that the term ‘premises’ refers more accurately to a single lot of Vono v. Lewis, 594 F. Supp. 2d 189, 194 n.9 (D. R.I. 2009) (utilizing same The Selectboard argues that a plain meaning analysis “leads to the single lot of land, they could have done so by using the word “lot.” See grounds are located on separate lots. that “[a]n onsite sign carries a message that bears some relationship to the supports the Selectboard’s argument. In Ackerley, the First Circuit explained Communications v. City of Cambridge, 88 F.3d 33, 34 n.1 (1st Cir. 1996),

mean a single parcel, “they could have used the term ‘lot’”). that had the drafters of the zoning bylaws intended the word “premises” to 377478 (AHS), 2010 WL 2690532, at *3 (Mass. Land Ct. July 8, 2010) (finding (quotations omitted)). Indeed, in General Linen Services, we said that Scotland Yard Ltd. Liab. P’ship v. Uxbridge Zoning Board of Appeals, No.

intent of the drafters of the ordinance to interpret the word “premises” as a including its registration office – regardless of whether the buildings and “premises,” it defines “lot” as “a tract, parcel, or plot of land.” Had it been the requirements of shoplifting statute (quotation omitted)); Gen. Linen Servs. v. N.H. at 719 (quotation omitted). Here, while the ordinance does not define

structures on it,” or “the place of business of an enterprise or institution”

business of Attitash Mountain Village – namely, vacation ownership units, institution” in addressing defendant’s argument that her conduct did not meet this case includes the buildings and grounds associated with the place of “premises” as used in the ordinance, we conclude that the word “premises” in Servs., 150 N.H. at 597-98. While we need not define the precise parameters of See State v. Thiel, 160 N.H. 462, 466 (2010) (looking to plain and ordinary circumstances, disclosures and context attendant to the situation.” Gen. Linen We have relied upon similar definitions of “premises” in other contexts. as used in a particular situation, must be understood in light of the “‘[p]remises’ can identify single premises or multiple premises,” and “the word,

relevant to the parties’ agreement as “a specified piece or tract of land with the Franconia Inv. Assocs., 150 N.H. 595, 597 (2004) (defining “premises” as

meaning of word “premises” as “the place of business of an enterprise or allows for the placement of outdoor signs on the premises of Attitash Mountain

p. 6 associated with the place of business of Attitash Mountain Village merely

holding. Interpreting the word “premises” to mean the buildings and grounds the provision in addressing this concern, however, is not undermined by our provision is the proliferation of business signs in Bartlett. The effectiveness of

A f f i r m e d .

argument, the Selectboard explained that the concern addressed by this

exempt from the ordinance. the parties’ arguments concerning whether the sign is a directional signal In light of our interpretation of the word “premises,” we need not address 6

premises where the activity to which the sign pertains is located.” At oral of the ordinance. The ordinance limits the placement of outdoor signs to “the Nor are we persuaded that our interpretation frustrates the clear intent

Attitash Mountain Village and, therefore, are on the same “premises.” different lots, both are geographically located at the place of business of single owner. Here, although the sign and the registration office are on HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

interpretation will have either effect. unworkable.” Upon review of the ordinance, we are not persuaded that our the clear intent” of one and render another “completely impractical and

businesses located throughout Bartlett, which happen to be operated by a

provisions of the ordinance, arguing that our interpretation would “frustrate

we do not read the word “premises” so broadly as to refer to multiple Village. While River Run may own several businesses at different properties,

with the other uses of the word ‘premises’ in the ordinance.” It cites four The Selectboard further argues that our interpretation “is incompatible

single lot. explanation suggests that the meaning of the word “premises” is limited to a