Tausanovitch v. Town of Lyme

• Decision Date: 09 November 1998
• Docket Number: No. 97–053.,97–053.
• Citation: 722 A.2d 914,143 N.H. 144
• Court: New Hampshire Supreme Court
• Parties: Peter TAUSANOVITCH and another v. TOWN OF LYME and Myron Crowe.

143 N.H. 144

722 A.2d 914

Peter TAUSANOVITCH and another

v.TOWN OF LYME and Myron Crowe.

No. 97–053.

Supreme Court of New Hampshire.

Nov. 9, 1998.

Rehearing Denied Feb. 2, 1999.

Sulloway & Hollis, P.L.L.C., Concord (Daniel P. Luker, on the brief and Martin L. Gross, on the brief and orally), for petitioners.

Schuster, Buttrey & Wing, P.A., Lebanon (Barry C. Schuster, on the brief and orally), for respondentMyron Crowe.

Baldwin & de Seve, Concord, for respondentTown of Lyme, filed no brief.

BROCK, C.J.

The petitioners, Peter and Kelly Tausanovitch and the Lyme Zoning Equity Group, appeal a decision of the Superior Court(Smith , J.) granting a motion to dismiss filed by the respondents, the Town of Lyme(town) and Myron Crowe.We affirm.

The record reveals the following facts.Myron Crowe owned a parcel of land in the town of Lyme in a rural zoning district.On February 8, 1995, the town planning board met and approved an application, with certain conditions, that Crowe had submitted for subdividing one parcel into two lots, lot 1 and lot 2.The Tausanovitchs had contracted to purchase lot 2 from Crowe in January 1995.One of the conditions for subdividing the parcel required Crowe to obtain a building permit from the zoning board of adjustment (ZBA) before building a residence or bed and breakfast because the proposed areas for development contained agricultural soil.On February 12, 1995, Crowe applied to the town for a permit to build on twenty-five percent of lot 1.An administrative officer of the town denied his request and referred it to the ZBA for consideration of a special exception to allow construction on the lot's agricultural soil.

The ZBA scheduled a public hearing for March 2, 1995, regarding an application submitted by Crowe for a special exception.SeeLyme, N.H., Zoning Ordinanceart. IV., § 4.64B(1996)(governing uses and special exceptions for agricultural soils conservation district).During the hearing, which a representative of the petitioners attended, the ZBA discussed Crowe's proposed subdivision and building plans.The ZBA voted to continue the application until Crowe submitted more specific information.

Crowe submitted additional information, and on March 23, 1995, the ZBA reviewed a site plan for lot 1, which included a table showing the amount of agricultural soil on the lot, the amount to be developed, and the "planned development including the bed and breakfast , allowance for septic area, driveway, [and] maintenance buildings."(Emphasis added.)The ZBA granted Crowe a special exception but required him to meet certain conditions before he could obtain a building permit.The conditions limited the developable acres to a maximum of 3.55 acres of agricultural soil, required Crowe to grant a conservation easement to the town, and required a map displaying the development and easement as substantially conforming with a proposed subdivision drawing previously submitted by Crowe.

On May 22, 1996, Crowe submitted a building permit application with maps and plans to the town for the proposed construction of a bed and breakfast on lot 1.On June 12, 1996, the zoning administrator issued Crowe the permit.The zoning administrator wrote on the notice approving the permit that he did not refer the application to the ZBA because a "special exception [was] granted before this application on 3/23/95."

On August 6, 1996, the petitioners appealed the issuance of the permit to the ZBA and asked the Lyme Board of Selectmen(board) to "take legal steps to stop further construction on [the] lot."(Emphasis omitted.)On August 15, 1996, the ZBA heard the merits of the appeal, including testimony from the zoning administrator, the abutters, the petitioners, Crowe, and the public.The ZBA denied the appeal, reasoning, inter alia , that all notice provisions under the ordinance had been met, that the petitioners were present or represented at the planning board meeting and ZBA meeting approving the subdivision and conditionally approving the building of a bed and breakfast, that the special exception granted in 1995 covered the construction of a bed and breakfast, and that the issue of whether construction falls within the parameters of the permit was not properly before it.Subsequently, the ZBA denied the petitioners' motion for a rehearing.

The petitioners appealed the ZBA's decision to the superior court.The respondents moved to dismiss, arguing that the petitioners' appeal to the ZBA was not timely filed.The trial court granted the motion, finding that the petitioners failed to file the appeal with the ZBA within a reasonable time as required by a town ordinance.SeeLyme, N.H., Zoning Ordinanceart. X, § 10.20(1996).This appeal followed.

The petitioners argue that the trial court erroneously applied the reasonable time standard for administrative appeals.In accordance with RSA 676:5(1996), article X, section 10.20 of the Lyme Zoning Ordinance provides that appeals, other than from denials by the ZBA, "shall be taken within a reasonable period of time by filing with the [ZBA] a notice of appeal specifying the grounds for appeal."Neither the statute nor the ordinance defines "reasonable period of time."See generallyRSA 676:5;Lyme, N.H., Zoning Ordinance art. X.

The petitioners assert that they"did not have actual or constructive notice that the building permit had been issued until late July or early August, 1996," and that they"appealed to the ZBA within just a few days of learning that the building permit had been issued."The petitioners argue that the superior court erred in concluding that they chose to delay the filing of their appeal to the ZBA until August 6, 1996, and in applying a per se rule in determining that the passage of fifty-five days from the issuance of the permit until the appeal was unreasonable.We disagree.

In reviewing the trial court's granting of the motion to dismiss, we evaluate whether the petitioners' allegations may be reasonably construed to permit relief.See, e.g. , Hickingbotham v. Burke , 140 N.H. 28, 29–30, 662 A.2d 297, 298–99(1995)."We assume the truth of the [petitioners'] well pleaded allegations of fact and construe all reasonable inferences from them most favorably to the [petitioners]."Id. at 30, 662 A.2d at 299(quotation and ellipsis omitted).The trial court, however, accepts "[a]ll findings of the zoning board of adjustment ... upon all questions of fact properly before the court[as] prima facie lawful and reasonable."Ray's Stateline Market v. Town of Pelham , 140 N.H. 139, 143, 665 A.2d 1068, 1070(1995)."This court, in turn, will uphold the decision of the superior court unless that decision is not supported by the evidence or is legally erroneous."Id. at 143, 665 A.2d at 1071(quotation omitted).

We first interpret the zoning ordinance.The interpretation of a zoning ordinance is a question of law, which we review de novo .See, e.g. , Healey v. Town of New Durham , 140 N.H. 232, 236, 665 A.2d 360, 365(1995)."In general, the traditional rules of statutory construction will govern here.Thus, the words and phrases of an ordinance should always be construed according to the common and approved usage of the language ...."Id.(quotation and brackets omitted).

Generally, the time for an appeal from the administrative officer's decision begins to run when the appealing party knows or should have known about the decision.SeeZeilstra v. Barrington Zoning Bd. of R. , 417 A.2d 303, 308(R.I.1980)...