New Hampshire Alpha of SAE Trust v. Town of Hanover
| Decision Date | 25 May 2021 |
| Docket Number | No. 2020-0034,2020-0034 |
| Citation | 261 A.3d 936,174 N.H. 269 |
| Parties | NEW HAMPSHIRE ALPHA OF SAE TRUST v. TOWN OF HANOVER |
| Court | New Hampshire Supreme Court |
Cole Associates Civil Law, PLLC, of Lebanon (Carolyn K. Cole on the brief and orally), for the plaintiff.
Mitchell Municipal Group, P.A., of Laconia (Laura Spector-Morgan on the brief and orally), for the defendant.
The plaintiff, New Hampshire Alpha of SAE Trust (SAE), appeals an order of the Superior Court (MacLeod, J.) ruling that the Town of Hanover Zoning Board of Adjustment (ZBA) has subject matter jurisdiction to hear SAE's administrative appeal in the related case of New Hampshire Alpha of SAE Trust v. Town of Hanover, 172 N.H. 69, 207 A.3d 219 (2019) ( SAE I ). The defendant, the Town of Hanover (Town), filed a cross-appeal of the trial court's denial of its request for attorney's fees. We affirm.
The following facts were found by the trial court or are otherwise supported by the record. On February 12, 2016, the zoning administrator for the Town issued a "Notice of Zoning Violation" (the Notice) to SAE. It provided in relevant part:
SAE appealed the Notice to the ZBA, which initially concluded that SAE had demonstrated a lawful nonconforming use in regard to the "in conjunction with" requirement referenced in the Notice. The ZBA therefore granted the appeal. Following a rehearing at the request of Dartmouth College, however, the ZBA reversed its decision and denied SAE's appeal. SAE appealed the ZBA's decision to the trial court, which affirmed the decision. SAE then appealed the ruling to this court, which affirmed in part, vacated in part, and remanded for further proceedings. See SAE I, 172 N.H. at 78, 207 A.3d 219.
While that case was pending before the ZBA on remand, SAE filed in the trial court this petition for declaratory judgment arguing that the ZBA did not have subject matter jurisdiction over SAE's appeal from the Notice in the first instance, and that the courts did not have subject matter jurisdiction to review the ZBA's decision as a result. SAE argued that: (1) the zoning administrator's Notice commenced an informal enforcement proceeding against SAE; (2) SAE's challenge was to the zoning administrator's decision to institute an enforcement proceeding, not to the construction, application or interpretation of the ordinance; (3) the courts, and not the ZBA, have exclusive jurisdiction to adjudicate alleged violations of zoning ordinances; and (4) the ZBA violated SAE's right to due process by unlawfully shifting the burden of proof to SAE. The Town moved to dismiss and requested an award of attorney's fees.
Following a hearing, the trial court denied SAE's petition for declaratory judgment and rejected SAE's argument that the Notice was not appealable to the ZBA as a "decision of the administrative officer," as that phrase is defined in RSA 676:5, II(b), because it constituted a discretionary decision to commence formal or informal enforcement proceedings. The trial court determined that a notice of violation is "simply a notice from the municipality informing a defendant that the municipality believes that he or she is not in compliance with the zoning ordinance" in order to give the defendant an opportunity to remedy the alleged violation before an enforcement proceeding is commenced. The court observed that the Notice in this case explained the reason for the zoning administrator's decision that SAE was in violation of the zoning ordinance and the possible penalties for a continuing violation, but it did not order SAE to take or avoid any actions, and did not impose any penalty. Thus, the trial court concluded, the Notice was an administrative decision involving the construction, interpretation or application of the ordinance, not a discretionary decision to commence formal or informal enforcement proceedings. Accordingly, the court ruled that the ZBA had jurisdiction to hear the appeal pursuant to RSA 674:33, I(a)(1) and RSA 676:5, I.
The trial court also rejected SAE's argument that, under Town of Derry v. Simonsen, 117 N.H. 1010, 380 A.2d 1101 (1977), the ZBA's jurisdiction is limited to appeals involving special exceptions and variances. The court observed that, following our decision in Simonsen, the legislature amended RSA 676:5 by defining the types of cases over which zoning boards have jurisdiction and expressly included decisions of an administrative officer involving the construction, interpretation or application of a zoning ordinance. The trial court concluded that, to the extent Simonsen held that the ZBA's jurisdiction is limited to reviewing special exceptions and variances, it had been abrogated by the legislature's amendment to RSA 676:5.
Responding to SAE's remaining arguments, the trial court deemed without merit SAE's argument that, because RSA 676:17 defines a violation of a zoning ordinance as a criminal offense, the ZBA does not have jurisdiction to hear SAE's appeal of the Notice. The trial court noted that the hearings before the ZBA were not proceedings in a criminal case, the ZBA did not seek to impose criminal penalties, and neither the Notice nor SAE's appeal to the ZBA could be characterized as a "prosecution of any violation of a local ordinance." See RSA 502-A:11-a, I (2010). The court also rejected SAE's due process argument, stating that SAE was not deprived of any ascertainable interest protected by law as a result of the Notice or SAE's appeal to the ZBA. The court denied the Town's motion for attorney's fees without explanation. This appeal and cross-appeal followed.
Subject matter jurisdiction is jurisdiction over the nature of the case and the type of relief sought—the extent to which a court can rule on the conduct of persons or the status of things.
Gordon v. Town of Rye, 162 N.H. 144, 149, 27 A.3d 644 (2011). In other words, it is a tribunal's authority to adjudicate the type of controversy involved in the action. Id. A tribunal lacks power to hear or determine a case that concerns subject matter over which it has no jurisdiction. Id. Thus, in the absence of subject matter jurisdiction, a tribunal's order is void and the appellate tribunal acquires no jurisdiction of the merits upon appeal. See Daine v. Daine, 157 N.H. 426, 428, 951 A.2d 133 (2008). A party may challenge subject matter jurisdiction at any time during the proceeding, including on appeal, and may not waive subject matter jurisdiction. Gordon, 162 N.H. at 149, 27 A.3d 644. Whether the ZBA had subject matter jurisdiction to hear SAE's appeal presents a question of law that we review de novo. Id. at 150, 27 A.3d 644.
Because the ZBA's powers and jurisdiction are governed by statute, see RSA 674:33 (Supp. 2020) ; RSA 676:5 (2016); see also RSA 674:16 (2016), resolution of this appeal requires us to engage in statutory interpretation. We are the final arbiter of the intent of the legislature as expressed in the words of a statute considered as a whole. Dembiec v. Town of Holderness, 167 N.H. 130, 134, 105 A.3d 1051 (2014). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. at 134-35, 105 A.3d 1051. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id. at 135, 105 A.3d 1051. We interpret a statute in the context of the overall statutory scheme and not in isolation. Id.
The trial court ruled that the ZBA had jurisdiction over SAE's appeal because the Notice was an administrative decision involving the construction, interpretation or application of the ordinance, not a discretionary decision to commence enforcement proceedings. See RSA 676:5, II(b). On appeal, SAE argues that the trial court erred because the Notice is part and parcel of the statutory enforcement procedures, see RSA 676:17 (2016); RSA 676:17-b (2016); RSA 31:39-c (2019), and, as such, is appealable to the courts, not the ZBA. The Town responds that the Notice is not a decision to commence enforcement proceedings, and that SAE seeks to conflate a notice of violation and actual prosecution of a zoning violation. The Town contends, however, that even if a notice of violation commences formal or informal enforcement proceedings, the ZBA had jurisdiction to review SAE's appeal because the Notice was a decision by an administrative officer involving the construction, interpretation or application of the terms of a zoning...
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...the issue of whether the ZBA and/or the courts lack subject matter jurisdiction is a matter of statutory construction. See N.H. Alpha of SAE Trust, 174 N.H. at 274. In matters of statutory interpretation, the intent of the legislature is expressed in the words of the statute considered as a......