Heartz v. City of Concord

• Decision Date: 17 September 2002
• Docket Number: No. 2001–219.,2001–219.
• Citation: Heartz v. City of Concord, 808 A.2d 76, 148 N.H. 325 (N.H. 2002)
• Court: New Hampshire Supreme Court
• Parties: Joan HEARTZ and another v. CITY OF CONCORD and another.

148 N.H. 325

808 A.2d 76

Joan HEARTZ and another

v.CITY OF CONCORD and another.

No. 2001–219.

Supreme Court of New Hampshire.

Argued June 5, 2002.

Opinion Issued Sept. 17, 2002.

Baldwin, Callen, Hogan & Kidd, P.L.L.C., of Concord (Grant Kidd on the brief, and Jed Z. Callen orally), for petitionersJoan Heartz and Bruce Calkins.

Law Offices of Robert V. Johnson, II, PLLC, of Concord (Robert V. Johnson, II on the brief and orally), pro se.

McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Mark C. Rouvalis on the brief and orally), for the intervenor, Professional Realty Corporation.

Paul F. Cavanaugh, city solicitor, of Concord, for the respondent, City of Concord, joined in the intervenor's brief.

DUGGAN, J.

In these consolidated appeals, the petitioners, Joan Heartz, Bruce Calkins, and Robert V. Johnson, II, challenge two Superior Court(Fitzgerald , J.) orders concerning development of a proposed parking lot at 66½ North State Street in Concord.The petitioners argue that the superior court erred in dismissing their claims on jurisdictional grounds for failing to appeal to the Concord Zoning Board of Adjustment(ZBA) prior to their appeal to the superior court.Petitioner Johnson also appeals the superior court's grant of summary judgment to the intervenor, Professional Realty Corporation(PRC), concerning the use of an easement over his property.We affirm.

The Greek Orthodox Community, Inc.(GOC) owns the land and buildings located at 68North State Street in Concord.This property is abutted by property at 66North State Street, owned by Johnson, and at 66 ½ North State Street, which is accessed by means of an easement across Johnson's property.Both 68 and 66 ½ North State Street are also abutted by property owned by Heartz and Calkins.

On July 23, 1999, GOC filed two applications with the Concord Planning Board(planning board) seeking approval of a subdivision and large scale development involving land it sought to purchase at 66 ½ North State Street.These applications described the demolition of the existing structure on 66 ½ North State Street and construction of a nineteen-car parking lot in its place.The lot was to benefit the church owned by GOC on 68 North State Street, and would be accessed by the easement across Johnson's property.

The planning board scheduled a public hearing to be held on August 18, 1999.The petitioners received proper notice of the hearing.The purpose of the public hearing was to consider the site plan for GOC's proposed large scale development.Prior to the hearing, however, GOC asked the planning board to remove its applications from the August 18 meeting agenda.At the meeting, the planning board told Heartz and Calkins that the hearing on GOC's applications had been postponed, and that they would be notified if another application was submitted in the future.

On August 17, 1999, Hamilton Rice, the City of Concord Code Enforcement Officer, met with GOC representatives and Robert Pollock of the City of Concord Planning Division.Interpreting section 28–11–4 of the Concord Zoning Ordinance, the code enforcement officer informed Pollock and the GOC representatives that if any entity other than GOC owned the property at 66 ½ North State Street and submitted an application complying with the applicable design regulations, a subdivision application and review would not be necessary.The code enforcement officer also indicated that the application would then only be subject to architectural design review, which does not require public participation or a hearing.

Subsequently, in a letter dated September 9, 1999, counsel for GOC asked the planning board to change the name on GOC's parking lot application for 66 ½ North State Street from "Holy Trinity Greek Orthodox Church" to "Professional Realty Corporation," and noted that the application no longer was for a subdivision.That same day, the architectural design review committee approved the amended parking lot application.At its regular meeting on September 15, 1999, the planning board approved the amended application by a vote of five to one.PRC purchased the property on December 6, 1999.

None of the petitioners received notice of the planning board's September 15 meeting.Because the planning board treated the amended parking lot application as an architectural design review matter rather than a subdivision application, no public hearing was held.Although Johnson attended the September 15 meeting, his request to have the planning board's vote rescinded was denied.The planning board offered Johnson an opportunity to be heard on the application, but he declined the invitation.

Two appeals from the planning board's decision, one by Heartz and Calkins and one by Johnson, were filed in superior court.The appeals were consolidated.The parties filed four motions for summary judgment: (1) Heartz and Calkins moved for partial summary judgment on the issue of notice; (2) PRC filed a cross-motion for summary judgment against all three petitioners on the issues of notice and public comment and on Johnson's claims concerning the planning board's application of the relevant parking lot design criteria; (3) PRC moved for summary judgment against Johnson on the issue of burden on the easement over Johnson's property; and (4) Johnson filed a cross-motion for summary judgment on the easement issue.

Before addressing these questions, the superior court, sua sponte, dismissed both appeals on the grounds that it lacked jurisdiction to rule on the issues raised by the petitioners.The court held that the notice and comment issues should have first been brought to the ZBA under RSA 676:5(1996) because these issues concerned an interpretation of a zoning ordinance and not a "decision of the planning board concerning a plat or subdivision" for which direct superior court review is available under RSA 677:15 (Supp.2001).The court determined that it lacked jurisdiction on the design issue because the planning board's approval of PRC's application was granted in the context of an architectural design review and therefore was not directly appealable to the superior court under RSA 677:15.Finally, the court held that the easement issue was inappropriate for a planning board appeal, and must instead be raised in a declaratory judgment action.

Petitioners Heartz, Calkins, and Johnson filed motions for reconsideration.For essentially the same reasons given in its original order, the superior court denied each of the motions concerning dismissal of the planning board appeal.However, the court granted Johnson's motion for reconsideration concerning the easement claim.The court then granted PRC's summary judgment motion on the easement issue and denied Johnson's motion.

On appeal, all three petitioners challenge the superior court's dismissal of their notice and comment claims, arguing that the superior court had jurisdiction.We disagree.

The jurisdictional issue involves the interplay between RSA 676:5, III (1996) and RSA 677:15, I (Supp.2001).SeeHoffman v. Town of Gilford,147 N.H. 85, 87, 786 A.2d 93(2001).RSA 676:5, III provides, in pertinent part:

If, in the exercise of subdivision or site plan review, the planning board makes any decision or determination which is based upon the terms of the zoning ordinance, or upon any construction, interpretation, or application of the zoning ordinance, which would be appealable to the board of adjustment if it had been made by the administrative officer, then such decision may be appealed to the board of adjustment under this section....

RSA 677:15, I, provides, in pertinent part:

Any persons aggrieved by any decision of the planning board concerning a plat or subdivision may present to the superior court a petition, duly verified, setting forth that such decision is illegal or unreasonable in whole or in part and specifying the grounds upon which the same is claimed to be illegal or unreasonable....This paragraph shall not apply to planning board decisions appealable to the board of adjustment pursuant to RSA 676: 5, III.

(Emphasis added.)

In interpreting RSA 676:5, we have noted that "for issues involving the interpretation or application of a zoning ordinance, there are two levels of review.At the local level, the ZBA reviews the decision to ensure uniform application of local zoning laws.Then, there is a statutory right to have the superior court review the ZBA decision."Hoffman , 147 N.H. at 88, 786 A.2d 93(citations omitted).RSA 677:15, in contrast, concerns planning issues.Seeid.A decision made by a planning board "concerning a plat or subdivision" may be appealed directly to the superior court by a petition for a writ of certiorari.Id.

We agree with the superior court that the petitioners were required to appeal to the ZBA under RSA 676:5 prior to seeking superior court review.After GOC applied for planning board approval in July 1999, the planning board appropriately began reviewing the application under subdivision and large scale development review.During the course of this review, the planning board decided that only architectural design review was required given the amendment changing the applicant from GOC to PRC.This decision was based upon an interpretation of section 28–11–4 of the Concord Zoning Ordinance.Because the planning board's decision to conduct only architectural design review was made during the subdivision and large scale development review process and was based upon an interpretation of the zoning ordinance, the requirements of RSA 676:5, III apply.Therefore, prior to appealing to the superior court, the petitioners were required to seek ZBA review of the planning board's decision to apply only architectural design review, which does not require public notice or a hearing.Moreover, because the planning board's decision was appealable to the ZBA under RSA 676:5, III, the petitioners were not entitled to direct superior court review under RSA 677:15.

Petitioner...