McDonald v. Town of Effingham Zoning Bd. of Adjustment

• Decision Date: 06 May 2005
• Docket Number: No. 2004–453.,2004–453.
• Citation: 152 N.H. 171,872 A.2d 1018
• Court: New Hampshire Supreme Court
• Parties: Vicki A. McDONALD v. TOWN OF EFFINGHAM ZONING BOARD OF ADJUSTMENT.

152 N.H. 171

872 A.2d 1018

Vicki A. McDONALD

v.TOWN OF EFFINGHAM ZONING BOARD OF ADJUSTMENT.

No. 2004–453.

Supreme Court of New Hampshire.

Argued: Jan. 12, 2005.

Opinion Issued: May 6, 2005.

Cooper, Deans & Cargill, P.A., of North Conway (Randall F. Cooper and Paul W. Mullen on the brief, and Mr. Cooper orally), for the plaintiff.

Upton & Hatfield, LLP, of Concord (Barton L. Mayer and Matthew R. Serge on the brief, and Mr. Serge orally), for the defendant.

BRODERICK, C.J.

This is an interlocutory appeal from an order of the Superior Court (O'Neill , J.) dismissing the appeal and related claims of the plaintiff, Vicki A. McDonald, from a zoning order of the defendant, Town of Effingham Zoning Board of Adjustment (ZBA). Sup.Ct. R. 8. The superior court transferred the following questions:

A. Did the Trial Court err in ruling in this appeal of denial from a Motion for Rehearing of a decision not to grant a variance that the applicant was procedurally obligated to file a second Motion for Rehearing challenging the ZBA's consideration of and reliance upon an additional reason for its underlying decision in denying the Motion for Rehearing.

B. Did the Trial Court err in ruling that the Petitioner, by failing to file the second Motion for Rehearing, was as well foreclosed from challenging either under federal ( 42 USC § 1983 ) or state constitutional law the decision of the Board as a violation of the applicant's right to due process of law by the ZBA providing the additional reason for its decision at its session to consider whether or not to grant a motion for rehearing.

C. Did the Trial Court err in ruling that the Petitioner, by failing to file the second Motion for Rehearing, was as well foreclosed from seeking damages for the regulatory taking of her land.

We reverse and remand.

We accept the facts as presented in this interlocutory transfer. Cross v. Brown, 148 N.H. 485, 485, 809 A.2d 785 (2002). McDonald owns one-quarter of an acre of land in the Town of Effingham (the town). The town's zoning ordinance requires a minimum lot size of two acres and specifies frontage and setback requirements (the ordinance). While McDonald's property was a "lot of record" which pre-existed the adoption of the ordinance, the application of the setbacks to the property would limit any structure on the lot to eight feet in depth and forty feet in width. McDonald, therefore, sought an area variance. At the public hearing on her application, McDonald offered evidence to the ZBA in support of her request, including a septic system construction permit approved by the New Hampshire Department of Environmental Services.

The ZBA denied her application, stating that "diminution in value of surrounding properties may result," and that:

a) granting the permit would be contrary to public interest, b) denial of the permit would not result in unnecessary hardship to the owner, c) by granting the permit, substantial justice would not be done, and d) the use is contrary to the spirit of the ordinance.

McDonald timely filed a motion for rehearing, which the ZBA denied. In doing so, the ZBA found that no new evidence was presented requiring any change in its earlier decision. It further concluded that McDonald never submitted the required "Standard Release Form for Protective Well Radii" with her variance application and that the proposed septic system for the lot was therefore "null and void." The "release form" ruling constituted an independent ground to deny the variance request and was not mentioned or discussed by the ZBA in its initial denial order.

McDonald appealed to the superior court, RSA 677:4 (Supp. 2004), contending that the ZBA's denials of her variance application and motion for rehearing were unreasonable and unlawful. She alleged that the ZBA: (1) violated her right to procedural due process by considering a new, substantive issue in response to her motion for rehearing; (2) violated her right to procedural due process by failing to provide a detailed basis for its findings; (3) denied her application based upon findings that were contrary to the evidence and the law; and (4) engaged in an unconstitutional regulatory taking by depriving her of all economically beneficial use of her land without providing her just compensation.

She also sought damages under 42 U.S.C. § 1983.

The ZBA filed an answer and a counterclaim against McDonald for alleged zoning violations. It also moved to dismiss McDonald's appeal and related claims, contending that the superior court lacked jurisdiction because McDonald had not filed a second motion for rehearing with the ZBA. See RSA 677:3, I (1996). The superior court dismissed the case in reliance upon Dziama v. City of Portsmouth, 140 N.H. 542, 669 A.2d 217 (1995), ruling that:

Because the purpose of a rehearing is to afford the ZBA the first opportunity to pass upon any alleged errors in its decision so that the court may have the benefit of the board's judgment in hearing the appeal, the Court cannot, under RSA 677:3, consider this appeal. Specifically, without the benefit of the ZBA's decision on a motion for rehearing, the Court cannot discern the impact the absence of a release form had on the ZBA's treatment of the petitioner's application for a variance when the release form was not discussed at all either during any of the hearings pertaining to the petitioner's application or in any decisions pertaining to same.

(Citations and quotations omitted.) McDonald's motion for reconsideration was denied. Because the ZBA's counterclaim against McDonald is still pending, this appeal was transferred on an interlocutory basis.

McDonald argues that she was not required to file a second motion for rehearing with the ZBA in order to perfect her appeal. She contends that because the ZBA identified a new ground supporting its denial of her variance request in its order on her motion for rehearing without affording her an opportunity to be heard, she was entitled to appeal directly to the superior court. See RSA 677:4. According to McDonald, before the ZBA chose to substantively modify the basis of its original decision to deny her a variance by adding another dispositive ground, it should have granted her a rehearing. If, following the rehearing, the ZBA identified a new or additional basis for its decision, McDonald concedes that she would have been obligated to file a second motion for rehearing in accord with Dziama before taking an appeal to the superior court.

The ZBA responds that McDonald was required to file a second motion for rehearing challenging its additional ground for denying the variance before she could perfect her appeal. It urges us to follow Dziama , and preserve the established policy behind the rehearing process that permits the ZBA the first opportunity to review any errors it may have committed.

Whether McDonald was required to file a second motion for rehearing to perfect her appeal to superior court is controlled by statute. We review the superior court's interpretation of the applicable statutes de novo . See Pelletier v. City of Manchester, 150 N.H. 687, 689, 844 A.2d 484 (2004). "We are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole." Id. We "construe that language according to its plain and ordinary meaning," id., being mindful, however, that "where the literal reading of a statutory term would compel an absurd result," we examine other indicia of legislative intent, State v. Warren, 147 N.H. 567, 568, 794 A.2d 790 (2002).

We turn first to the plain language of the applicable statutes. With respect to the ZBA rehearing process, "any party to the action or proceedings" has thirty days from any order or decision of the ZBA to "apply for a rehearing in respect to any matter determined in the action or proceeding...." RSA 677:2 (Supp.2004). A...