Accurate Transp., Inc. v. Town of Derry

• Decision Date: 11 August 2015
• Docket Number: No. 2014–512,2014–512
• Citation: 123 A.3d 263,168 N.H. 108
• Parties: ACCURATE TRANSPORT, INC. & a. v. TOWN OF DERRY
• Court: New Hampshire Supreme Court

168 N.H. 108

123 A.3d 263

ACCURATE TRANSPORT, INC. & a.

v.TOWN OF DERRY

No. 2014–512

Supreme Court of New Hampshire.

Argued: April 22, 2015

Opinion Issued: August 11, 2015

Gottesman & Hollis P.A., of Nashua (Morgan A. Hollis and Bryan J. Townsend II on the brief, and Mr. Townsend orally), for the petitioners.

Upton & Hatfield, LLP, of Concord (Matthew R. Serge on the brief and orally), for the respondent.

CONBOY, J.

The respondent, the Town of Derry (Town), appeals a decision of the Superior Court (Wageling, J.) granting the motion for summary judgment filed by the petitioners, Accurate Transport, Inc. (Accurate Transport) and 41 Ashleigh Drive, LLC (Ashleigh Drive), on the basis that an abutter's appeal to the Derry Zoning Board of Adjustment (ZBA) was untimely. We reverse.

The following facts are either undisputed or established by the record. In November 2012, Accurate Transport submitted a preliminary site plan application to the Derry Planning Board for approval to operate a "Dumpster Depot" business on property owned by Ashleigh Drive. The property is located within the Town's Industrial III zoning district, which permits, among other uses, contractor's yards and freight and trucking terminals.

On November 9, 2012, prior to the Planning Board's review, the Technical Review Committee (TRC) held a meeting to evaluate the proposed site plan. The TRC is comprised of several Town representatives, including the code enforcement officer. The code enforcement officer believed that the proposed use of the property was permitted as both a contractor's yard and a freight and trucking terminal. The TRC approved the proposed plan, and, thereafter, the petitioners filed a formal site plan application with the Planning Board.

The Planning Board held numerous public meetings. During several of the meetings, the Planning Board was advised that the code enforcement officer believed that the proposed use of the property was allowed as both a contractor's yard and a freight and trucking terminal.

On June 19, 2013, the Planning Board, in a seven-to-two decision, voted to accept jurisdiction over the petitioners' site plan application. A member of the Planning Board also moved to approve the application, subject to various conditions; however, the motion was subsequently withdrawn and the matter was continued to August 21.

At the August 21 meeting, the Planning Board voted to approve the petitioner's application subject to several conditions, some of which differed from the conditions proposed on June 19. A written notice of decision was issued on August 28.

On September 13, an abutter to the subject property, John T. O'Connor, filed an application for administrative appeal with the ZBA. His appeal was captioned as an "Explanation of Administrative Appeal of Code Enforcement's Decision to Determine Site is a Contractor's Yard and a Permitted Use for Dumpster Depot." The stated "purpose" of the appeal was "to show that the Code Enforcement Officer's decision was in error ... when he determined that Dumpster Depot LLC falls under ... Permitted Uses as a ‘Contractors Yard.’ "

The ZBA first considered O'Connor's appeal on October 3. To the extent that O'Connor challenged the code enforcement officer's determination regarding the proposed use of the property, the ZBA denied the appeal based upon lack of jurisdiction because it deemed the appeal untimely. However, the ZBA decided that, because the appeal "also contain[ed] timely allegations relating to the Planning Board's" interpretation and/or application of the zoning ordinance in its August 21 decision, it would "convert" O'Connor's appeal to an appeal of that decision, and, therefore, it would construe the appeal as timely.

On November 7, the ZBA held a meeting regarding O'Connor's appeal. After discussing whether the proposed use of the property was allowed in the Town's Industrial III zoning district, the ZBA concluded that the Town's zoning ordinance did not permit the proposed use under any classification. Therefore, the ZBA decided that, by approving the site plan application, the Planning Board "erred in its construction, interpretation and/or application of the [Town's] Zoning Ordinance as it pertains to the subject property."

After unsuccessfully moving for rehearing, the petitioners appealed to the trial court and, subsequently, moved for summary judgment. They argued, in relevant part, that O'Connor's appeal was untimely and that the ZBA lacked authority to treat the appeal as an appeal of the Planning Board's August 21 decision. In an initial order granting the petitioners' summary judgment motion, the trial court noted that the Town's zoning ordinance allowed aggrieved parties 20 days from the date of a decision to appeal to the ZBA. Assuming, without deciding, that "it was proper for the ZBA to re-characterize O'Connor's appeal," the court determined that his appeal was untimely as it was filed on September 13, which was more than 20 days after the Planning Board's August 21 decision. Accordingly, the court concluded that the ZBA had no authority to consider O'Connor's appeal, and, thus, granted the petitioners' motion.

Both parties moved for reconsideration, agreeing that the court erred by misapplying the time standards contained in the Town's zoning ordinance. In its reconsideration order, the court explained that in its initial order, it found that the Town's zoning ordinance allowed 20 days from the date of decision for an aggrieved party to appeal to the ZBA; however, the court agreed with the parties that the ordinance "in fact states that the time is 20 days from a written decision ." (Emphasis added.)

Observing that the written decision of the Planning Board was released on August 28, the court noted that O'Connor's appeal (filed September 13) would be timely if he was appealing the final Planning Board site plan approval. However, the court concluded that O'Connor's appeal did not challenge the Planning Board's approval. Rather, the court found that O'Connor's appeal challenged only the code enforcement officer's determination that the proposed use of the subject property was permitted as a contractor's yard. The court decided that the Planning Board accepted the code enforcement officer's interpretation on June 19 when it voted to accept jurisdiction of the appeal. Because that vote was published on July 19, the court concluded that O'Connor had 20 days from July 19 to appeal to the ZBA. Given that his appeal was filed in September, the court determined that it was untimely. This appeal followed.

Judicial review in zoning cases is limited. Brandt Dev. Co. of N.H. v. City of Somersworth, 162 N.H. 553, 555, 34 A.3d 593 (2011). Factual findings by the ZBA are deemed prima facie lawful and reasonable, and the ZBA's decision will not be set aside by the superior court absent errors of law unless it is persuaded by the balance of probabilities, on the evidence before it, that the ZBA decision is unlawful or unreasonable. RSA 677:6 (2008). We will uphold the superior court's decision unless the evidence does not support it or it is legally erroneous. Brandt Dev. Co. of N.H., 162 N.H. at 555, 34 A.3d 593. The interpretation and application of a statute or ordinance is a question of law, and we review the superior court's ruling on such issues de novo. Id.

As a threshold matter, both parties request that we decide, in the first instance, whether the ZBA erred by "converting" O'Connor's appeal to an appeal of the Planning Board's August 21 decision. Although we do not typically address matters that should be considered by the trial court in the first instance, see, e.g., Bartlett v. Commerce Ins. Co., 167 N.H. 521, 535, 114 A.3d 724, 736 (2015) (declining to decide issue in the first instance), we will address this issue because it involves the statutory authority of the ZBA, which is a question of law. See Cmty. Res. for Justice v. City of Manchester, 154 N.H. 748, 753, 917 A.2d 707 (2007) (addressing issues in the first instance to the extent that they involved questions of law).

The petitioners argue that the ZBA "acted unlawfully in ‘converting’ the appeal" to an appeal of the Planning Board's August 21 decision because no statute grants the ZBA the ability to so act. They contend that, because O'Connor challenged only the code enforcement officer's determination that the proposed use of the property was permitted, the ZBA was not authorized to treat O'Connor's appeal as an appeal of the Planning Board's August 21 decision. We disagree.

Although the petitioners correctly observe that there is no statutory provision that explicitly permits the ZBA to "convert" an appeal, there is also no statute that prohibits the ZBA from taking such action. Moreover, under RSA 674:33 (Supp.2014), the ZBA has broad authority to hear and decide appeals on subjects within its jurisdiction. See Ouellette v. Town of Kingston, 157 N.H. 604, 610, 956 A.2d 286 (2008) (concluding that "the ZBA may hear appeals de novo, based upon the broad powers granted to it by statute"); see also Peabody v. Town of Windham, 142 N.H. 488, 492, 703 A.2d 886 (1997) ("The [ZBA] has broad authority on subjects within its jurisdiction."). Because the proper enforcement of zoning ordinances is specifically within the ZBA's jurisdiction, see RSA 674:33, I, the ZBA had authority to address the zoning issues raised in O'Connor's appeal. See Dube v. Town of Hudson, 140 N.H. 135, 138, 663 A.2d 626 (1995) (stating that the ZBA "has explicit statutory authority to review the planning board's construction of the zoning ordinance").

The ZBA found that O'Connor's appeal "contain[ed] ... allegations relating to the Planning Board's terms, construction, interpretation and/or application of the zoning ordinance" at the August 21 meeting, and, thus, it decided to consider those allegations. Although the caption and stated purpose of O'Connor's appeal referenced only the code enforcement officer's determination that the...