Bosonetto v. Town of Richmond

• Decision Date: 29 June 2012
• Docket Number: No. 2011–183.,2011–183.
• Citation: 163 N.H. 736,48 A.3d 973
• Parties: Nicolas BOSONETTO v. TOWN OF RICHMOND.
• Court: New Hampshire Supreme Court

163 N.H. 736

48 A.3d 973

Nicolas BOSONETTO

v.TOWN OF RICHMOND.

No. 2011–183.

Supreme Court of New Hampshire.

Argued: Feb. 16, 2012.

Opinion Issued: June 29, 2012.

Bragdon, Dowd & Kossayda, P.C., of Keene (Kelly E. Dowd on the brief and orally), for the petitioner.

Tower & Crocker, P.A., of Jaffrey (David M. Tower on the brief and orally), for the respondent.

CONBOY, J.

The petitioner, Nicolas Bosonetto, appeals a decision of the Superior Court ( Arnold, J.) granting summary judgment in favor of the respondent, Town of Richmond (Town), and dismissing the petitioner's appeal of a decision of the Town of Richmond's Zoning Board of Adjustment (ZBA). We affirm in part and vacate in part.

I

The following facts are drawn from the record. Nicolas and Jill Bosonetto own property located in Richmond at 71 Prospect Hill Road, a private road.

There are three mobile homes on the property, all placed pursuant to building permits granted in 1980.

On May 18, 2009, the petitioner submitted a building permit application to the Board of Selectman of the Town (BOS) requesting permission to replace one of the mobile homes with a new three-bedroom residence at a different location on the property. On June 8, 2009, the BOS denied the application “based on the fact that the property is on a private road and the Town [of Richmond] does not have provisions for building permits on private roads.” RSA 674:41, I (2008) prohibits the issuance of a building permit “for the erection of a building unless the street giving access to the lot upon which such building is proposed to be placed” meets certain criteria. With regard to private roads, the statute explicitly provides that permits may be issued only if, among other things, “the local governing body ... has voted to authorize the issuance of building permits for the erection of buildings on said private road.” RSA 674:41, I(d)(1). The statute also sets forth an appeal process to the ZBA, and authorizes the ZBA to “make any reasonable exception and ... issue a permit ... if the issuance of the permit or erection of the building would not tend to distort the official map or increase the difficulty of carrying out the master plan upon which it is based, and if the erection of the building or issuance of the permit will not cause hardship to future purchasers or undue financial impact on the municipality.” RSA 674:41, II (2008). In its denial, the BOS recommended that the petitioner pursue an appeal to the ZBA.

On June 25, 2009, the petitioner appealed the decision to the ZBA. On July 28, 2009, the ZBA conducted a public hearing, and, on August 5, 2009, the ZBA visited the site of the proposed building. On August 10, 2009, the ZBA deliberated on the matter.

At its deliberation, the ZBA determined that the petitioner has a vested right to use the existing structures because building permits were issued for them. Several of the members noted, however, that that right does not permit the petitioner to replace the existing mobile home with a building on a different “footprint” and at a different location. The ZBA discussed whether the request could be granted pursuant to the factors contained in RSA 674:41, II, and, upon an oral motion, “den[ied] the application based on the criteria of 674:41.” Mr. Bosonetto was present at this meeting.

On August 17, 2009, the ZBA convened to review a draft of a “Notice of Decision,” which provided the following reasons for the ZBA's decision:

1. The [ZBA] decided that the issuance of the building permit and the construction of the 3–bedroom house would increase the difficulty in carrying out the Master Plan.

2. The [ZBA] decided that the construction of the 3–bedroom house would cause hardship to future purchasers.

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

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

(Emphasis omitted.) One ZBA member stated that he “did not feel he had voted on anything to do with vested rights.” Another member, however, explained that the ZBA had discussed the issue at length at the August 10, 2009 meeting and that each member was asked what his or her view was on the issue. The ZBA ultimately voted to approve the draft notice of decision without any additional deliberation and without a new vote on the application or any subsidiary matter. The notice was placed on file for public inspection the day after the meeting, on August 18, 2009.

On August 24, 2009, a Town clerk provided Mr. Bosonetto with instructions on how to appeal the decision. Those instructions, on ZBA letterhead, explained that to appeal the decision, the petitioner must first ask the ZBA for a rehearing. The instructions then stated that “[t]he motion must be made within 30 days after the decision is filed and first becomes available for public inspection.” The instructions also contained the following language in bold: “The [ZBA] strongly recommends that, before making any appeal, you become familiar with the zoning ordinance, and also with the New Hampshire Statutes ... covering planning and zoning.”

On September 14, 2009—more than thirty days after the oral denial of the application, but less than thirty days after the written notice of decision was approved by the ZBA—the petitioner filed a motion for rehearing with the ZBA. At a meeting on October 8, 2009, the ZBA addressed the motion. It noted that RSA 677:2 (2008) (amended 2009) requires that a motion for rehearing be filed within “30 days after any order or decision of the [ZBA]” and that the thirty-day time period “shall be counted in calendar days beginning with the date following the date upon which the [ZBA] voted to approve or disapprove the application.” The petitioner argued that he had been misled by the ZBA instructions. The ZBA, however, noted that the instructions specifically refer to the statute, and, by oral motion, the ZBA voted to deny the rehearing request because the motion “was not filed within the 30 day timeframe specified in [RSA 677:2].”

The petitioner then appealed the ZBA decision to the superior court. In addition to asserting a statutory appeal of the ZBA's decision, the petitioner requested a declaratory judgment against the BOS and the ZBA, a writ of mandamus against the BOS, and a writ of certiorari. The court ultimately denied relief on all grounds. On appeal, the petitioner raises various points of error. We address each issue in turn.

The petitioner first challenges the trial court's dismissal of his statutory appeal, which was based upon its ruling that his motion for rehearing was untimely. Pursuant to RSA 677:2, “[w]ithin 30 days after any order or decision of the [ZBA] ... any party to the action or proceedings ... may apply for a rehearing.” “This 30–day time period shall be counted in calendar days beginning with the date following the date upon which the board voted to approve or disapprove the application....” RSA 677:2. Pursuant to RSA 677:3 (2008), “[n]o appeal from any order or decision of the [ZBA] ... shall be taken unless the appellant shall have made application for rehearing as provided in RSA 677:2.” This is a strict requirement: “[A] timely motion for rehearing is a precondition to appealing a ZBA decision to the superior court,” and “failure to timely move for a rehearing divests the superior court of subject matter jurisdiction.” Cardinal Dev. Corp. v. Town of Winchester Zoning Bd. of Adjustment, 157 N.H. 710, 712, 958 A.2d 996 (2008).

The petitioner argued to the trial court that his motion for rehearing was timely filed because the thirty-day time period did not begin to run until August 17, 2009, the day the ZBA voted to approve its written notice of decision. The court noted that RSA 677:2 provides the following: “ [I]f the moving party shows that the minutes of the meeting at which such vote was taken, including the written decision, were not filed within 144 hours after the town vote pursuant to RSA 674:3, II, the person applying for the rehearing shall have the right to amend the motion ... within 30 days after the date on which the written decision was actually filed.” The trial court concluded, however, that this provision “merely provides the applicant with the opportunity to amend his [motion]” and “does not change the date when the thirty-day period begins to run in the event that the ZBA fails to file its meeting minutes or written decision in a prompt manner.” It thus ruled that “the petitioner's motion for rehearing was not timely” because the date of the decision was August 10, 2009. The trial court accordingly dismissed the petitioner's statutory appeal for lack of subject matter jurisdiction.

On appeal, the petitioner points to the amendment provision and argues that “August 17, 2009 is the triggering date for purposes of RSA 677:2.” Like the trial court, we conclude that the statute's amendment provision merely permits a party, in certain circumstances, to amend a timely-filed motion for rehearing. It does not address when a motion must be filed in the first instance. As to that question, the statute is clear: a motion for rehearing may be filed “[w]ithin 30 days after any order or decision” and the “30–day time period shall be counted in calendar days beginning with the date following the date upon which the [ZBA] voted to approve or disapprove the application.” RSA 677:2 (emphasis added). “Any order or decision” is not limited to a written order or decision, and a “vote to approve or disapprove the application” is not limited to a memorialization of a vote which provides reasoning for the decision. Thus, pursuant to the plain language of RSA 677:2, the thirty-day period began to run the day after the ZBA disapproved the application by a vote on an oral motion on August 10, 2009....