2020-0034, New Hampshire Alpha of SAE Trust v. Town of Hanover

court’s denial of its request for attorney’s fees. We affirm. The defendant, the Town of Hanover (Town), filed a cross - appeal of the trial Hampshire Alpha of SAE Trust v. Town of Hanover, 172 N.H. 69 (2019) (SAE I). jurisdiction to hear SAE ’s administrative appeal in the related case of New Town of Hanover Zoning Board of Adjustment (ZBA) has subject matter (SAE), appeals an order of the Superior Court (MacLeod, J.) ruling that the HANTZ MARCONI, J. The plaintiff, New Hampshire Alpha of SAE Trust

brief and orally), for the defendant. Mitchell Municipal Group, P.A., of Laconia (Laura Spector - Morgan on the

and orally), for the plaintiff. Cole Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on the brief

No. 2 020 - 0034 Grafton

http://www.courts.state.nh.us/supreme. release. The direct address of the court ’ s home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by e - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

remanded for fu rther proceeding s. See SAE I, 17 p. 2 2 N.H. at 78. appealed the ruling to this court, which affirmed in part, vacated in part, and ZBA’s decision to the trial court, which affirmed the decision. SAE then th e ZBA reversed its decision and denied SAE ’s appeal. SAE appealed the appeal. Following a rehearing at the request of Dartmouth College, however, with” requirement referenced in the Notice. The ZBA therefore granted the had demonstrated a lawful non conforming use in regard to the “in conjunction SAE appealed the Notice to the ZBA, which init ially concluded that SAE

Section 1005. p. 2 2] Notice of Violation to file an appeal. [Adopted Zoning Ordinance, appeal, you have seven (7) days from the date of the receipt of this appeal to the Zoning Board of Adjustment. Should you wish to This is an Administrative Decision, which you have the right to

for each day the violation continues. [RSA 676:17] subject the SAE fraternity to fines in the amount of $ p. 2 275 per day Continued occupancy of the property after March 15, 2016 will

the zoning ordinan ce. the continued use of the property as a residence is a violation of being operated in conjunction with an institutional use. Therefore, derecognized by Dartmouth College, the SAE facility is no longer another institutional use [Section 90 p. 2 2]. Because it has been the “I” Institution zoning district be operated in conjunction with The Adopted Zoning Ordinance requires that student residences in

occupied. facility located at 38 College Street will no longer be able to be by Dartmouth College, and that effective March 15, p. 2 2016, the Sigma Alpha Epsilon f raternity that they are officially derecognized Subsequent to that notification, Dartmouth College notified the

national organization. Cha pter of Sigma Alpha Epsilon has been suspended by the College that the chapter charter of the New Hampshire Alpha The Planning & Zoning office has been notified by Dartmouth

in relevant part: the Town issued a “Notice of Zoning Violation” (the Notice) to SAE. It provided supported by the record. On February 1 p. 2 2, 20 16, the zoning administrator for The following facts were found by the trial court or are otherwise

I. Factual Background & Procedural History p. 3 3

a zoning ordinance as a criminal offense, the ZBA does not have jurisdiction to without merit SAE’s argument that, because RSA 676:17 defines a violation of Responding to SAE’s remaining arguments, the trial court deemed

legislature’s amendment to RSA 676:5. reviewing special exceptions and variances, it had been abrogated by the that, to the extent Simonsen held that the ZBA’s jurisdiction is limited to interpretation or application of a zoning ordinance. T he trial court concluded included decisions of an administrative officer involving the construction, types of cases over which zoning boards have jurisdiction and expressly our decision in Simonsen, the legislature amended RSA 676:5 by defining the involving special exceptions and variances. The court observed th at, following Simonsen, 117 N.H. 1010 (1977), the ZBA’s jurisdiction is limited to appeals T he trial court also rejected SAE’s argument that, under Town of Derry v.

the a ppeal pursuant to RSA 674: p. 3 33, I (a)(1) and RS A 676:5, I. proceedings. Accordingly, the court ruled that the ZBA had jurisdiction to hear discretionary decision to commence formal or informal enforcement involving the construction, interpretation or application of the ordinance, not a Thus, the trial court concluded, the Notice was an administrative decision did not order SAE to take or avoid any actions, a nd did not impose any penalty. zoning ordinance and the possible penalties for a continuing viol ation, but it reason for the zoning ad ministrator’s decision that SAE wa s in violation of the commenced. The court observed that the Notice in this case explained the opportunity to remedy the alleged violation before an enforcement proceeding is compliance with the zoning o rdinance” in order to give the defendant an inform ing a defendant that the municipality believes that he or she is not in determined that a notice of violation is “simply a notice from the municipality commence formal or informal enforcement proceedings. T he trial court in RSA 676:5, II(b), because it constituted a discretionary decision to the ZBA as a “decision of the administrative officer,” as that phrase is defined judgment and rejected SAE’s argument that the Notice was not appealable to Following a hearing, the trial court denied SAE ’s petition for declaratory

The Town moved to dismiss and requested an award of attorney’s fees. SAE’s right to due process by unlawfully shifting the burden of proof to SAE. adjudicate alleged v iolations of zoning ordinances; and ( p. 4 4) the ZBA violated of the ordinance; ( p. 3 3) the courts, and not the ZBA, have exclusive jurisdiction to enforcement proceeding, not t o the construction, application or interpretation challenge was to the zoning administrator ’ s decision to institute an Notice commenced an informal enforcement proc eeding against SAE; (2) SAE’s the ZBA ’s decision as a result. SAE argue d that: (1) the zoning administrator’s instance, and that the courts did not have subject ma tter jurisdiction to review have subject matter jurisdiction over SAE ’s appeal from the Notice in the first trial court this petition for declaratory judgment arguing that the ZBA did not While that case was pending before the ZBA on remand, SAE filed in the 4

interpretation or application of the ordinance, not a discretionary decision to because the Notice was an administrative decision involving the construction, The trial court ruled that the ZBA had jurisdiction over SAE’s appeal

statutory scheme and not in isolation. Id. to include. Id. at 135. We interpret a statute in the context of the overall legislature might have s aid or add language that the legislature did not see fit legislative intent from the statute as written and will not consider what the plain and ordinary meaning to the words used. Id. at 13 p. 4 4 - 35. We interpret 130, 134 (2014). When examining the la nguage of a statute, we ascribe the a statute considered as a whole. Dembiec v. Town of Holderness, 167 N. H. are the final arbiter of the intent of the legislature as expressed in the words of resolution of this appeal requires us to engage in statutory interpretation. We RSA 674:33 (Supp. 2020); RSA 676:5 (2016); see also RSA 674:16 (2016), Because the ZBA’s powers and jurisdiction are governed by statute, see

novo. Id. at 150. jurisdiction to hear SAE’s appeal presents a question of law that we review de jurisdiction. Gordon, 162 N.H. at 1 p. 4 49. Whether the ZBA had subject matter proceeding, including on appeal, and may not waive subject matter party may challenge subject matter jurisdiction at any time during the the merits upon appeal. See Daine v. Daine, 157 N.H. 426, 428 (2008). A tribunal’ s order is void and the appellate tribunal acquires no jurisdiction of jurisdiction. Id. T hus, in the absence of subject matter jurisdiction, a determine a case that concerns subject matter over which it has no contr oversy involved in the action. Id. A tribunal lacks power to hear or (2011). In other words, it is a tribunal’s authority to adjudicate the type of of persons or the status of things. Gordon v. Town of Rye, 162 N.H. 144, 149 the type of relief sought – the extent to which a court can rule on the conduct Subject matter jurisdiction is jurisdiction over the nature of the case and

appeal and cross - appeal followed. court denied the Town’s motion for attorney’s fees without explanation. This protected by law as a result of the Notice or SAE’s appeal to the ZBA. The argument, stating that SAE was not deprived of any ascertainable interest See RSA p. 5 502 - A:11 - a, I (201 0). The court also rejected SAE’s due process could be characterized as a “prosecution of any violation o f a local ordinance.” impose criminal penalties, and neither the Notice nor SAE’s appeal to the ZBA the ZBA were not proceedings in a criminal case, the ZBA did not seek to hear SAE’s appeal of the Notice. T he trial court noted that the hearings before 5

interpretation or application of the terms of the ordinance.” RSA 676: p. 5 5, II (b). A “decision of the admin istrative officer” is “any decision involving construction, selectmen, or other official or board with such responsibil ity.” RSA 676:5, II(a). or enforcing zoning ordinances, “and may include a building inspector, board of official or board” who has the responsibility for issuing permits and certificates as set forth in RSA 674:33.” RSA 676:5, I. T he “administrative officer” is “any officer” may appeal to the ZBA “concerning any matter within the board’s power 676:17 - b, I. “[A] ny person aggrieved . . . by any decision of the administrative be appealed to the zoning bo ard of adj ustment pursuant to RSA 676:5.” RSA the end of such period “[i]f the notice involves or includes a decision which may notice of violation to the ZBA, and land use citation s may not be serv ed until M unicipali ties are required to set forth a reasonable period for appealing a which a dispute over a notice of violation is appealable to the ZBA. H owever, the statutory scheme expressly contemplates circumstances in

a notice of violation is not part of an enfo rcement action. commenced”). Thus, we would be remiss to conclude that, as a matter of law, enforcement action, includ ing written notice of violation, has been 674:33 - a (2016) (equitable waiver of dimensional requirement permitted if “no en forcement of its ordinances and regulations.” RSA 31:39 - c; see also RSA description of the offense and any applica ble schedule of penalties” in “the municipality is permitted to use a “written notice of violation containing a notice of the violation by the municipality.” RSA 676:17 - b, I. Indeed, a a local land use citation “unless the defendant has first been given written prosecute an offense within the scope of RSA 676:17 are not permitted to serve earlier.” RSA 676:17, I. Further, administrative official s with the authority to notice from the municipality that t he violator is in violation, whichever is “after the conviction date or after the date on which the violator receives written We observe that fines begin to accrue for an alleged zoning violation

determination providing grounds for an admin istrative appeal. must be brought in court, and as a notice of a municipality’s administrative violation can serve both as the starting point of an enforcement action that p. 6 676: p. 5 5, I, II. A review of the relevant statutes illus trate s that a notice of interpretation or application of the terms of a zoning ordinanc e. See RSA Notice was a decisi on by an administrative officer involving the construction, proceedings, the ZBA had ju risdiction to review SAE’s appeal because the that even if a notice of violation commences formal or informal e nforcement and actual prosecution of a zoning violation. The Town contends, however, enforcement proceedings, and that SAE seeks to conflate a notice of violation ZBA. The Town respond s that the Notice is not a decision to commen ce (2016); RSA 31:39 - c (2019), and, as such, is app ealable to the courts, not the statutory enforcement procedures, see RSA 676:17 (2016); RSA 676:17 - b argues that the trial court erred because the Notice is part and parcel of the commence enforcement proceeding s. See RSA 676:5, II (b). On appeal, SAE 6

— is still consonant with the statutory scheme. See RSA p. 6 676:5; RSA 674:33. ordinance must be brought before the court rather than the ZBA, see Simonsen, 117 N.H. at 1013 abrogated Simonsen in total. Simonsen ’s central holding — that the enforcement of a zoning We disagree with the Town’s assertion that the legislature’s amendment to RSA 676:5 in 1989 2 the constitutional claims were not first raised to the ZBA, that issue is not before us. at the Town’s urging, constitutional claims from SAE’s challenge to the ZBA’s decision because To the extent that SAE argues that the trial court erred in the pending case of SAE I by striking, 1

restriction does not, however, prevent the ZBA from review ing decision s of the reverse, or otherwise invalidate that duly inst ituted proceeding. Such proceeding against a defendant, the ZBA is powerless to dismiss, withdraw, administrative officer exercises discretion to commence an enforcement decisio n to institute enforcement proceedings. In other words, if an provision’s plain language, the ZBA may not review an administrative official’s informal en forcement proceedings.” RSA p. 6 676:5, II (b) (emphasis added). By the provision prohibits the ZBA from reviewing a “decision to commence formal or render the exclusionary language of RSA 676:5, II(b) meanin gless. That Our interpretation of the ZBA’s authority does not, as SAE argues,

validity of an ordinance is in question”). “[j]udicial treatment may be particularly suitable w hen the constitutionality or superior court” (emphasis added)); Dembiec, 1 p. 6 67 N.H. at 133 (stating that 2 to orders “regarding the enforcement of a zoning ordinance should be in the RSA 674:33, I, II; see also Simonsen, 117 N.H. at 1013 (stating that challenges interpretation or application of a zoning ordinan ce. See RSA 676:5, I, II (b); 1 arising from the notice of violation beyond contesting an officer’s construction, 674:33; RSA 676:5. But t he ZBA has no authority to hear and decide issues construction, interpretation or application of a zoning ordinance. See RSA is alleged that the administrative officer committed an error involving the and decide an administrative appeal of a notice of violation to the extent that it action and also as the basis for an administrative appeal. T he ZBA may hear In sum, a notice of violation can serve as the initiation of an enforcement

other enforcement action”). from” shall be stayed in the event of “[a]n appeal [to the ZBA] of any or der or RSA p. 6 6 p. 7 76:6 (2016) (instructing that “all proceedings under the action ap pealed a notice of violation can be the proper subject of an administrative appeal. See 674:16.” RSA 674:33, I (a)(1). Accordingly, the legislature has determined that official in the enforcement of any zoning ordinance ad opted pursuant to RSA order, requirement, decision, or determination made by an administrative the power to “[h]ear and decide appeals if it is alleged there is error in any proceedings.” Id. Pursuant to the plain language of RSA 674:33, the ZBA has the terms of the ordinance which is implicated in such enforcement proceedings,” it “does include any construction, interpretation or application of discretionary decision to commence formal or informal enforcement While a “decision of the administrative officer” specifically excludes “a 7

authority to “determine, in the first instance, that a violation had occurred.” determines whether a violation exists when it opined that municipal officials must have the The trial court appeared to endorse the concept that the zoning administrator, not the court, 3

Town’s own zoning administrator in a quasi - judicial proceeding where the proceeding. To wit, the Town’s ZBA is reviewing an interpretation made by the appeal to the ZBA of the interpretation of an ordinance provision is not such a upon the muni cipality to establish the violation. See RSA 6 p. 7 76:17, V. An neutral fact finder in an adjudication in which the burden of proof would be or civil proceeding in which due process would require, at a minimum, a an administrative decision. Determining a “violation” is the result of a criminal A “violation” in the enforcement context is not the same as the review of

statutory framework and due process. subsequent enforcement action. Such a conclusion would be at odds with the Notice and administrative appeal effectivel y control the outcome of any determining the outcome of the enforcement action. We disagree that the the zoning ordinance, equating the interpretation of the ordinance as effectively whether SAE’s use of the property as a student residence was “in violation” of review of the Notice by th e ZBA and the courts, the issue was described as SAE offers SAE I as a case in point contending that, throughout the

imposed looms. the Town in subsequent enforcement actions where the risk of penalties being “hometown pseudo - trial in front of the ZBA” whose findings are relied upon by required to prove its innocence.” In SAE’s view, the Town’s process is a presents no evidence that the violation exists but rather the landowner is on hearsay evidence and provides no right to conf ront accusers, and “the Town testimony taken under oath or authentication of documents, the board relies that a zoning violation exists. SAE observes that, at ZBA hearings, there is no 3 administrator first to the ZBA, even when the decision of the administrator is because the Town requires defendant s to appeal decisions of the zoning argues, the appeals process established by the Town circumvents due process might seek to rely upon in a subsequent enforcement action. Thus, SAE zoning violation upon which the ZBA made findings and rulings that t he Town proceeding because the Notice was a “formal accusation” by the Town of a practically the same effect as establishing a violation in an enforcement construction, interpretation or application of the zoning ordinance has ordinance. SAE stresses that the ZBA ’s affirm ance of a zoning administrator’s ZBA are tantamount to a prosecution of SAE for violation of a local zoning SAE argues that the Notice and subsequent appeal proceedings at the

Greene v. Town of Deering, 151 N.H. p. 7 795, 79 p. 8 8 - 99 (2005). enforcement proceedings.” RSA 676:5, II (b); see RSA 674:16; RSA 674:33; ap plication of the terms of the ordinance which [are] implicated in such administrative off icer concerning the “construction, interpretation or 8

enforcement action or fines arising from this dispute. In addition, the Town conceded at oral argument that it would need to restart the clock on any 5 zoning ordinance in a subsequent enforcement action, as that issue is not before us in this case. appeal to the ZBA of an administrative officer’s construction, int erpretation or application of a 246 (2010). We express no opinion here as to the preclusive e ffect of a final judgment in an relitigation of findings made by an administrative board.” Tyler v. Hannaford Bros., 161 N.H. 242, We have recognized that “[u]nder certain circumstances, collateral estoppel may preclude the 4

interpretation or application of a zoning ordinance as set forth in the Notice. review: it involves alleged error by the zoning administrator in the construction, T he record reveals that the proceeding in SAE I is the administrative

attorney’s fees in superior court pursuant to RSA 676:17). defendant’s properties, the city sought injunctive relief, civil penalties and notice of violation sent by the city, and no subsequent change in the use of the with); City of Rochester v. Corpening, 153 N.H. 571, 571 - 72 (2006) (following a penalties under RSA 676:17 after a cease and desist order was not complied (selectboard filed a land use citation complaint in the district court seeking civil RSA 676:17. See, e.g., Town of Bartlett v. Furlong, 16 p. 8 8 N.H. 171, 173 (2015) the ZBA are not a prosecution of a zoning violation under RSA 676:15 (2016) or the Town that, at this stage, the Notice and subsequent appeal proceedings at an d/or 676:17 would, in fact, be brought in court.” However, we agree with Indeed, the Town agree s “any action brought by the town under RSA 676:15 to the district court shall be deemed to be referring to the circuit court). court. See RSA 676:17, V; RSA 490 - F:18 (explaining that statutory references an alleged zoning violation must pursue such action in the circuit or superior municipality seeking to prosecute and impose penalties upon a defendant for violation of a zoning ordinance. Accordingly, we agree with SAE that a lacks the power to convi ct a party of a crime or impose civil penalties for a grants. See Dembiec, 167 N.H. at 134 - 35. It is beyond dispute that the ZBA conferred upon it by statute or are necessarily implied by those statutory N.H. 604, 608 (2008). The board has only those powers that are expressly 674:16; RSA 674:33; RSA 676:5; see also Ouellette v. Town of Kingston, 157 T he ZBA ’s powers and jurisdiction are established by statute, s ee RSA

pendency. 5 interpretive decisions to the ZBA, such that fines could not accrue during the Moreover, RSA 676:6 imposes a stay, during the time allotted for appealing administrative review context from underpi nning the enforcement action. 4 677:6 (2016). These distinctions may prevent findings and rulings made in the legal determinations will be upheld unless unlawful or unreasonable. See RSA fact by the ZBA are deemed prima facie lawful and reasonable, and the ZBA’s omitted)). Review of the board’s decision on appeal is deferential — findings of a quasi - judicial capacity when interpreting a zoning ordinan ce” (citations Dev., LLC v. Town of Thornton, 16 p. 8 8 N.H. 715, 721 (2016) (“zoning boards act in applicant bears the burden of proving the interpretation is in error. See CBDA p. 9 9

proceeding. Gordon, 162 N.H. at 14 p. 9 9. Further, we have not directly addressed A party may challenge subject matter jurisdiction at any time during a

claims were not frivolous or made in bad faith. court’s denial of the Town’s motion implicitly includes a finding that SAE’s not motivated by a desire to delay final judgment. SAE contends that the trial subject matter jurisdiction, which may be raised at any time, and that SAE was judgment in this matter. SAE counters that this case raises the issue of and asserts that it was only intended to waste time and needlessly delay final challenge in this case is a frivolous one with no good faith basis in fact or law, The Town argues that it is entitled to attorney’s fees because SAE’s

the record for the trial court’s determination, we will uphold it. Id. trial court’s decision regarding attorney’s fees. Id. If there is some support in court’s ruling on this issue, we acknowledge the tremendous deference given a the prejudice of the aggrieved party on that issue. Id. In evaluating the trial exercised for reasons clearly untenable or to an extent clearly unreasonable to discretion. Id. at 161. To warrant reversal, the discretion must have been decision concerning attorney’s fees absent an unsustainable exercise of [defended] the action.” Id. at 160 - 61. We will not overturn the trial court’s and when it should have been unnecessary for the successful party to have litigant’s conduct can be characterized as unreasonably obdurate or obstinate, in bad faith, vexatiously, wantonly, or for oppressive reasons, when the attorney’s fees under this exception “is appropriate when one party h as acted attorney’s fees to be awarded based on bad faith litigation. Id. An award of 173 N.H. 150, 160 (2020). A judicially created exception to this rule allows for parties pay their own attorney’s fees. DiMinico v. Centennial Estates Coop., its request for attorney’s fees. The general rule in New Hampshire is that Finally, we address the Town’s cross - appeal of the trial court ’s denial of

that allege such errors. See RSA 674:33; RSA 676:5. stage of the litigation. The ZBA has the power to hear appeals from decisions application of the terms of the zoning ordinance contained in the Notice at each cha llenge d the zoning administrator’s construction, interpretation or ordinance. See id. at 73 - 76 (vacated in part and remanded). Thus, SAE has construction, interpretation or application of the terms used in the zoning this court, SAE successfully disputed part of the zoning admin i strator’s upheld the ZBA’s decision. SAE I, 172 N.H. at 77. In SAE’s previous appeal to The trial court, “acting in an appellate capacity and not as a fact finde r,” application of the ordinance and affirmed the administrator’s interpretation. The ZBA reviewed the zoning a dministrator’s construction, interpretation or violation of the Term Definition ‘Student Residence,’ ‘I’ Institutional District.” alleged that “The Zoning Administrator incorrectly ruled that the applicant is in SAE filed the Town’ s form for Appeal of an Administrative Decision. In it, SAE p. 10 10

The Town’s mo tion to strike portions of the appendix and b rief filed by SAE is denied. 6

HICKS and DONOVAN, JJ., concurred.

judgment. 6 appeal and we affirm the trial court’s denial of SAE’s petition for declaratory ordinance. Accordingly, th e ZBA had subject matter jurisdiction over SAE’s administrator erred in construing, interpreting or applying the terms of th e property is in violation of the zoning ordinance by alleging that the zoning to the ZBA sought reversal of the zoning administrator’s decision that SAE’s existence of a violation must be heard by the court. In this case, SAE’s appeal unconstitutional effects as a result of said determinations or disputing the ordinance may be appealed to the ZBA, but argument s alleging administ rator’s construction, interpretation or application of a zoning provisions. See, e.g., RSA 676:15; RSA 676:17. Thus, the zoning substitute for the process required to prove a violation under the enforcement The decision resulting from that administrative appeal may not, however, application of the terms of the zonin g ordinance. See RSA 674:33; RSA 676:5. alleges an error in the administrative officer’s construction, interpretation or administrative officer in the enforcement of a zoning ordinance if the appeal decide appeals taken by a person aggrieved by a decision ma de by an The legislature has conferred jurisdiction upon the ZBA to hear and

DiMinico, 173 N.H. at 161. record for the trial co urt’s determination,” and we therefore uphold it. the issue and the arguments made in this case provide “some support in the 676:5, II (b). Without evidence of bad faith or intentional delay, the nature of to interpret or consider the significance of the exemp tion cont ained in RSA See id. a t 798. Moreover, u nlike in this case, there was no occasion in Greene decision to issue a junkyard license, not an appeal from a notice of violation. at 799. However, that case involved re sidents’ appeals from the board’s was no question as to the ZBA’s jurisdiction in this case. See Greene, 151 N.H. RSA 674:33 and RSA 676:5. The Town relies upon Greene to argue that there the jurisdiction of the ZBA to hear an appeal from a notice of violation under