2024 N.H. 13, Newfound Serenity, LLC v. Town of Hebron

Grandy on the memorandum of law), for the defendant. Drummond Woodsum & MacMahon, of Manchester (HariNarayan

the Supreme Court under Rule 33(2), on the brief, for the plaintiff. Dale R. Spaulding, non - attorney representative appearing by approv al of

Citation: Newfound Serenity, LLC v. Town of Hebron, 2024 N.H. 13 Case No. 2023 - 0153 Grafton

THE SUPREME COURT OF NEW HAMPSHIRE

page is: https://www.courts.nh.gov/our - courts/supreme - court 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 email at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

The To wn also argued that because the plaintiff appealed the Planning Board Planning Board’s denial based on the two other reasons would remain effective. reverse the ZBA’s decision, such a reversal would be moot because the became final. Therefore, the Town asserted, even if the superior court were to dismissal to this court, the Planning Board’s decision as to those issues dismissed the plaintiff’s appeal as untimely, and the plaintiff did not appeal the exclusively within the HAB’s statutory authority to review and because the HAB two of the Planning Board’s reas ons for denying site plan approval were denial falling outside the ZBA’s jurisdiction. The Town asserted that because related to the zoning ordinance and the HAB would review the reasons for appeal such that the ZBA would review the Planning Board’s reasons for denial to dismiss. The Town argued that the plaintiff effectively bifurcated its initial appealing the decisions of the Planning Board and the ZBA. The Town moved [¶6] On October p. 2 27, 2022, the plaintiff filed a complaint in superior court

rehearing. reasons. On October 11, p. 2 2022, the ZBA denied the plaintiff’s request for a deemed that it did not have statutory authority to address the other two Board’s reasons for denying the site plan application, upheld one reason, and Town’s ZBA. On August 16, 2022, the ZBA overturned four of the Planning [¶5] The plaintiff also appealed the Planning Board’s decision to the

decisions of the HAB may be appealed to the supreme court). not appeal the HAB’s decision. See RSA 679:15 (Supp. p. 2 2023) (providing that superior court pursuant to RSA 677:4 through RSA 677:16.”). The plainti ff did (Supp. 2023) (“Appeals to the [HAB] shall be consistent with appeals to the dismissed the case on June 17, 2022. See RSA 677:15, I (2016); RSA 679:9, I thirty - day appeal period, the HAB determined t hat it lacked jurisdiction and decision with the HAB. Because the appeal was filed outside the statutory [¶4] On May 9, 2022, the plaintiff filed an appeal of the Planning Board’s

seven reasons. p. 2 2022, the Planning Board denied the p laintiff’s site plan application based on Town’s Planning Board for a seasonal recreational vehicle park. On April 6, supported by the record. The plaintiff sought site plan approval from the [¶3] The following facts were found by the trial court or are otherwise

decisions, we reverse. inconsistent with the statutes governing appeals from planning board [¶ p. 2 2] Because we conclude that the superior court’s dismissal is

plaintiff’s complaint in its enti rety. HAB’s initial dismissal, the Superior Court (Bornstein, J.) dismissed the seeking review of both the P lanning B oard and ZB A decisions. Based on the p. 3 3

(emphasis adde d); see RSA 679:9, I. taken to the superior court under this section.” RSA 677:15, I - a(a) (2016) matters shall be appealed to the board of adjustment before any appeal is appealed are appealable to the board of adjustment under RSA 676:5, III, such appeal a decision of the planning board, and if any of the matters to be Id. Rather, RSA 677:15, I - a(a) provides that “[i]f an aggrieved party desires to deci sions appealable to the board of adjustment pursuant to RSA 676:5, III.” [¶10] However, RSA 677:15, I, “shall not apply to planning board

disapprove the application.” RSA 677:15, I. within p. 3 30 days after the date upon which the board voted to approve or (procedur e for HAB appeals). “Such petition shall be presented to the court which the same is claimed to be illegal or unreasonable.” See also RSA 679:9, I illegal or unreasonable in whole or in part and specifying the grounds upon the superior court a petition, duly verified, setting forth that such decision is decision of the planning board concerning a plat or subdivision may pre sent to [¶9] RSA 677:15, I, provides that “[a] ny persons aggrieved by any

overall statutory scheme. Id. statutes in isolation; instead, we attempt to construe them in harmony with the language that the legislature did not see fit to include. Id. W e do not cons true possible and will not consider what the legislature might have said or add ordinary meaning. Id. We give effect to every word of a statute whenever statute itself, and, if possible, construe that language according to its plain and statutory interpretation de novo. Id. We first look to the language of the Onge v. Oberten, LLC, 174 N.H. p. 3 393, 395 (2021). We review the trial court’s interpretation of statutes governin g appeals from planning board decisions. St. [¶8] Resolving the plaintiff’s appeal requires that we engage in

Ass’n v. Groundhog Landscaping & Prop. Maint., 17 p. 3 3 N.H. 372, 374 (2020). susceptible of a construction that would permit recovery. Riverbend Condo dismiss, we consider whether the plaintiff’s allegations are reasona bly omitted.) Generally, when reviewing a trial court’s ruling on a motion to decision that would be made with respect to the ZBA appeal is moot.” (Bolding right to br ing an action in superior court; and (2) in determining that “any court erred: (1) when it ruled that, under RSA 679:7, the plaintiff waived its [¶7] On appeal, the plaintiff argues, among other things, that the trial

This appeal followed. dismiss. The plaintiff moved for reconsideration, which the trial court denied. superior court. The trial court agreed with the Town and granted the motion to decision in part to the HAB, the plaintiff waived its right to bring an action in p. 4 4

HANTZ MARCONI and DONOVAN, JJ., concurred.

plaintiff from pursuing its complaint in superior court. premature appeal by the HAB while the ZBA appeal was pending forecloses the a(a). We decline to conclude, under these facts, that the dismissal of a been required to stay the matter pending the ZBA appeal. See RSA 677:15, I was premature. Indeed, had the HAB accepted the initial appeal, it would have the statute s, the plaintiff’s initial appeal to the HAB was not lat e; instead, it [¶15] Therefore, in light of this objective and under the plain language of

inconsistent outcomes arising from a single site plan application. plain: exhaustion of ZBA remed ies avoids serial litigation and potentially board decision to superior court (or the HAB) bec omes timely. T he objective is resolution of zoning - related issues by the ZBA before an appeal of a planning statutory scheme. Read as a whole, the applicable statutes contemplate final [¶1 p. 4 4] We conclude that the trial court’s decision is inconsistent with the

to both appeal s from the Planning Board and the ZBA. untimely. The trial court effectively gave the HAB’s decision preclusive effect as Planning Board’s decision, and, conseq uently, the HAB dismissed it as initial appeal to the HAB ? That appeal was filed more than thirty days after the [¶13] The question then becomes: what is the effect of the plaintiff’s

under the statute. Board and ZBA decisions. Tha t complaint was otherwise timely and proper 2022, the plaintiff filed its complaint in superior court appealing the Planning dismissal of the motion for rehearing on October 11, 2022. On October 27, HAB. In this case, the ZBA finally resolved the plaintiff’s appeal with its resolved by the ZBA before an appeal can be taken to superior court or the from a p lanning b oard decision that are appealable to the ZBA must be [¶12] Thus, by their plain terms, th e statute s require that issues arising

[RSA 677:15, I].” Id. denial of a motion for rehearing under RSA 677:3, subject to the provisions of presented to the superior court within 30 days after the board of adjustment’s by the planning board or the board of adjus tment.” Id. “The petition shall be by petition, any or all matters concerning the subdivision or site plan decided the board of adjustment, any aggrieved party may appeal to the superior court, RSA 677:15, I - a(a). “After the final resolution of all such matters appealed to been resolved, the court shall stay the appeal until resolution of such matters.” the superior court before all matters appealed to the board of adjustment have [¶11] “If any party appeals any part of the planning board’s decision to