K & J Associates v. City of Lebanon

• Decision Date: 01 October 1997
• Docket Number: No. 95-476,95-476
• Citation: 703 A.2d 253,142 N.H. 331
• Parties: K & J ASSOCIATES and another, v. CITY OF LEBANON and another.
• Court: New Hampshire Supreme Court

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703 A.2d 253 K & J ASSOCIATES and another,
v.
CITY OF LEBANON and another. No. 95-476. Supreme Court of New Hampshire. Oct. 1, 1997.
Rehearing Denied Dec. 3, 1997.

Casassa and Ryan, Hampton (John J. Ryan, on the brief and orally), for plaintiffs.

Devine, Millimet & Branch, P.A., Manchester (George R. Moore, on the brief and orally and Richard Sigel, on the brief), for defendants.

Schuster, Wheeler, Buttrey & Wing, P.A., Lebanon (Claude T. Buttrey, on the brief, and Barry C. Schuster, on the brief and orally), for intervenor, C & R Management Corp.

BROCK, Chief Justice.

The plaintiffs, K & J Associates and Paul Korpela, appeal an order of the Superior Court (Abramson, J.) ruling that because the plaintiffs' appeal from the decision of the City of Lebanon Planning Board (board) was not timely filed under RSA 677:15 (Supp.1994) (amended 1995), the court lacked subject matter jurisdiction to hear the appeal. We reverse and remand.

The plaintiffs submitted an application for site plan review of a proposed Wal-Mart retail store to the board. Both plaintiffs' counsel and a representative of the plaintiffs attended the final meeting on the application on March 24, 1994. At the meeting board member Ron Bailey moved to deny approval of the application. Bailey read a written draft of the motion and proposed determinations into the record. The motion recited the reasons for the denial and referred to two further pages of documentation attached to the motion. In a recorded vote, the board voted 7-0 (with one abstention) to grant Bailey's motion and deny the plaintiffs' application.

At the close of the meeting, the board's chairman, Norman Dobson, gave the motion regarding the application and attached documentation to the board's recording secretary, Tracy Colburn. She took the motion and other papers home that night. The following day, March 25, 1994, Colburn brought the

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motion and papers to the planning department office. She reviewed the motion, meeting tape, and her notes, and compiled a draft Notice of Action as required by the site plan review regulations of the City of Lebanon. The Notice of Action incorporated the motion and confirmed the board's denial of the plaintiffs' application. Colburn then phoned Dobson to request that he review and sign the Notice of Action. Later that day, a representative of the plaintiffs came to the office to request a copy of the board's decision. Colburn provided him with either a copy of the adopted motion or an unsigned copy of the Notice of Action.

On March 28, 1994, Dobson signed the Notice of Action. On March 29, 1994, Colburn sent a signed copy of the Notice of Action to the plaintiffs' representative in accordance with the Lebanon site plan regulations. On April 26, 1994, the plaintiffs filed a petition in the superior court to review the board's decision pursuant to RSA 677:15.

The superior court sua sponte raised the issue of the timeliness of the appeal. After a hearing, the court dismissed the appeal on the basis that it lacked subject matter jurisdiction because the plaintiffs' petition was filed after the statutory thirty-day appeal period had run.

The issue of subject matter jurisdiction may be raised at any time in the proceedings. See In re Net Realty Holding Trust, 127 N.H. 276, 277, 497 A.2d 865, 866 (1985). "[C]ompliance with the procedural deadline for filing an appeal is a necessary prerequisite to establishing jurisdiction in the appellate body." Dermody v. Town of Gilford, 137 N.H. 294, 296, 627 A.2d 570, 571 (1993) (emphasis omitted). If the plaintiffs did not appeal the board's decision within the thirty-day period prescribed by RSA 677:15, I, then the superior court properly dismissed the action for lack of subject matter jurisdiction. See id.

The plaintiffs challenge the superior court's ruling that the thirty-day appeal period began to run on March 25, 1994--that is, when Colburn placed the materials relevant to the planning board decision in the planning office and made them available to the public. At issue is the prior version of RSA 677:15, I, which stated:

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. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the planning board.

RSA 677:15 (Supp.1994). In interpreting the statute, "this court is the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Welch v. Director, N.H. Div. of Motor Vehicles, 140 N.H. 6, 8, 662 A.2d 292, 293 (1995). Where the statutory language is ambiguous or where more than one reasonable interpretation exists, we review legislative history to aid in our analysis. See State v. Telles, 139 N.H. 344, 346, 653 A.2d 554, 556 (1995); Petition of Walker, 138 N.H. 471, 474, 641 A.2d 1021, 1024 (1994).

The word "decision" is undefined in the statute. Under the regulations of the City of Lebanon, however, "the decision of the Board" is reflected in the Notice of Action, which must be "signed by the Chairperson or designee." City of Lebanon Site Plan Review Regulation 4.5 (adopted June 14, 1988). This signed document, the plaintiffs argue, represents the "decision" that must be filed to begin the thirty-day appeal clock ticking. Consequently, under the plaintiffs' interpretation of "decision," the appeal period began to run on March 28, 1994, when the Notice of Action prepared by Colburn was signed by Dobson and made available to the public in the planning office. The defendants counter that the appeal period began to run on March 25, 1994, when Colburn filed all of the papers from the previous night's meeting in the planning office, prepared the Notice of Action, and made these materials available to the public.

"[T]he time for appeal begins to run when the decision is delivered to the official whose duty it is to file it and [the official] places the decision in the place where such decisions

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usually are kept." 4 R. Anderson, American Law of Zoning 3d § 27.24, at 540 (1986). "[I]t may be difficult to establish when a decision was filed with the board." 15 P. Loughlin, New Hampshire Practice, Land Use Planning and Zoning § 33.02 (2d ed.1993).

What event triggers the beginning of the appeal period as contemplated in the statute is ambiguous at best. See LaVallee Northside Civ. Ass'n v. Virgin Islands Coastal Zone Mgt., 866 F.2d 616, 623 (3d Cir.1989). Dictionary definitions are unhelpful; the legislative history provides no guidance.

Nor does the amended version of the statute clarify the triggering event for beginning the appeal period. The current version of RSA 677:15, I, states that a petition for appellate review "shall be presented to the court within 30 days after the decision of the planning board has been filed and first becomes available for public inspection in the office of the...